We're running a survey to help us understand who uses our sites. If you have 5 minutes to spare then we'd be grateful if you could take part

How Our Democracy Works

THE STRUCTURE OF GOVERNMENT

The aim of this page is to lay out the structure, roles and responsibilities of Government under the Kenyan Constitution of 2010.

The people of Kenya have powers to govern themselves. They can do this directly or through representatives that they have elected in a democratic manner provided in the Constitution of Kenya, 2010. The power for the people of Kenya is given to the parliament; the legislative assemblies in the devolved governments; the national executive; the executive structures in the devolved government; the judiciary and the independent tribunals. The Constitution establishes 47 counties through which the devolved government carry out their functions.

The Constitution establishes a number of commissions and they include Ethics and Anticorruption Commission, Kenya National Human Rights and Equality Commission, National Land Commission, Public Service Commission, Judicial Service Commission, Commission on Revenue Allocation, Salaries and Remuneration Commission, Teachers Service Commission, Parliamentary Service Commission and Independent Electoral and Boundaries Commission. Persons serving in the commissions are referred to as State officers.

The national and devolved governments are distinct and interdependent. The relation between the governments will be on basis of consultation and cooperation. The nature of how the governments are interdependent is evident through the functions of the national and county governments.

1. THE NATIONAL GOVERNMENT

The national government comprises the Cabinet and the Parliament.

i) Cabinet

The Cabinet comprises the President, deputy President, Attorney General who is the legal advisor to the government and Cabinet Secretaries (formerly known as Ministers). The Cabinet Secretaries shall not be less than 14 and not more than 22. This makes the number of Cabinet members reasonable in relation to use of taxpayers’ monies, manageable, and ensures it is possible to know the maximum number of Cabinet Secretaries.

The Cabinet Secretaries are appointed by the President with the approval of the National Assembly. The Cabinet Secretaries may not be Members of Parliament. This makes it possible for Cabinet Secretaries to be appointed based on their expertise rather than attempts to reward loyal members of parliament as was the case in the former Constitution.

The Cabinet shall have a Secretary who shall be in charge of the Cabinet office; the decisions of the Cabinet shall be in writing. The Cabinet Secretary has the responsibility of communicating the decision of the Cabinet to appropriate persons.

Role of the President

The President has a number of roles and functions under the Constitution. The President will address the opening of each newly elected Parliament; address a special sitting of Parliament once every year and any other time; report to the nation once a year on all actions and progress made by government in realising the National Values spelt out in Article 10 of the Constitution. The President will report on these progresses in his or her address to the nation and as well through the Gazette . Apart from reporting on the progresses on realising the National Values, the President is required to submit a report to the National Assembly on progress made by Kenya in fulfilling its international obligations.

Additionally, the President is required to carry out a number of functions with approval of the National Assembly, which is a departure from former Constitution that enabled the President to carry out functions without the approval of the National Assembly.

The President:-

  • Appoints the members of the Cabinet with the approval of the National Assembly and may dismiss them.

  • Appoints the Principal Secretaries with the approval of the National Assembly.

  • Appoints the members of the Independent Electoral and Boundaries Commission with the approval of the National Assembly.

  • Appoints the Chairperson of the Commission on Revenue Allocation with the approval of the National Assembly.
  • Appoints the Chief Justice and deputy Chief Justice as recommended by the Judicial Service Commission and with the approval of the National Assembly.
  • The two members of the Judicial Service Commission that are not lawyers are appointed by the President with the approval of the National Assembly.
  • Appoints the Attorney General, the Controller of Budget and Auditor General with the approval of the National Assembly.
  • Appoints the members of the Public Service Commission with the approval of the National Assembly.
  • Appoints the Inspector-General of the Police and 6 of the 9 members of the National Police Service Commission with the approval of the National Assembly.
  • Appoints ambassadors with the approval of the National Assembly.
  • Declares war with the approval of the National Assembly.

In addition to these roles the President decides the first date that the National Assembly and the Senate sit after general election. (In the former Constitution the president determined when Parliament sat and could dissolve it any time.)

The President may also pardon offenders or reduce their punishment but does this with the advice of the Advisory Committee on Prerogative of Mercy.

ii) Parliament

The parliament consists of the National Assembly and the Senate.

a) National Assembly

The National Assembly comprises 290 members elected by registered voters from constituencies, 47 women elected by registered voters from the counties, 12 members nominated by parliamentary political parties to represent special interests of youth, persons with disabilities and workers, and the Speaker of the National Assembly.

Roles of the National Assembly

The members of the National Assembly represent the people of constituencies and as well as special interests (youth, women, persons with disabilities and workers) in the National Assembly.

The roles of the members of the national assembly are to:

  1. Make laws,

  2. Determine how resources are allocated between national and county governments,

  3. Review the conduct of the state officers that include the president and deputy president,

  4. Make and approve declarations of war,

  5. Exercise oversight over national revenue,

  6. Debate and provide solutions to issues that concern the people and exercise oversight over the state organs. State organs include commissions, offices and bodies established under the Constitution. The people can approach their representatives in the National Assembly to ask questions and debate issues that affect them in the Assembly.

b) Senate

The Senate consists of 47 members elected by registered voters of the counties, 16 women members nominated by political parties, 2 youth members (one man and one woman), two persons with disabilities (one man and one woman) and the Speaker of the Senate.

Role of the Senate

The members of the Senate represent the counties and their essence is to serve and protect the interests of the counties and counties governments.

The roles of the members of Senate are to:

  1. Debate and approve laws that concern the counties,
  2. Determine the allocation of national revenues to the counties,
  3. Exercise oversight over state officers and determine any resolution to remove the President or deputy President.

The people can approach their representatives in Senate to ask questions and debate issues that affect them in the Senate.

The People and the Parliament; Recall and Public Participation

The registered voters have a right to recall a member of National Assembly and Senate representing their constituencies or counties, before his or her term has ended.

Parliament will enact legislation that lists the reasons for which a member of the Assembly or the Senate may be recalled and the procedure for recalling the member.

The National Assembly and the Senate are required to conduct their business in public and enhance public participation while carrying out their functions.

The people have an avenue to participate in process of making laws at the National Assembly and the Senate; they should use the opportunity to determine how the laws that govern them at national levels should be.

The media and the members of the public may be present while the members of the National Assembly and the Senate are sitting. The people can therefore be up-to -date on the proceedings in the National Assembly and the Senate through the media and monitor and hold the members of the Senate and National Assembly accountable

Reflection

  • What does the Parliament comprise?
  • What are the roles of the National Assembly and the Senate?
  • How can you as member of public participate in the affairs of the National Assembly and the Senate?
  • How can you as member of public hold your representative in Senate and National Assembly accountable?

2. COUNTY GOVERNMENT

Devolution is intended to give powers to communities to govern themselves, manage their affairs democratically and ensure fair distribution of resources(Article 174). The devolution is carried out at county levels through county governments. The county government for each of the 47 counties consist of a county assembly and county executive committee.

The county governments are required to take their services closer to the people in an efficient manner. The county governments are required to:

  1. Uphold principles that ensure they have separation of powers;

  2. Have reliable sources of revenue to enable them govern and deliver services effectively to the people; and

  3. Ensure that no more than two thirds of the members in their representative bodies are of the same gender.

i) County Assembly

The County Assembly comprises members elected by registered voters of the wards, number of special seats necessary to ensure that no more than two thirds of members in the assembly are of one gender, members of marginalised groups that include persons with disabilities and youth and the Speaker of the County Assembly.

The Parliament is required to enact law that will ensure representation of the marginalised groups. Article 177 that lists membership to County Assembly does not state the numbers of its membership.

Role of the County Assembly

The role of the Assembly is to:

  1. Make laws that will ensure county government carry out its functions effectively. The roles of the county government are spelt out in the fourth schedule of the Constitution and they include;
  2. Provisions of transport at county levels;
  3. Trade development and regulation within county;
  4. County planning and development;
  5. County health services; and
  6. Provision of agricultural services within the county.

The roles of the Assembly also include:

  1. Exercise of oversight on the County Executive Committee;
  2. Approving plans and policies of the County Executive Committee; and
  3. Approving persons to be appointed as members of the County Executive Committee.

The County Assemblies are required to conduct their business in public and enhance public participation while carrying out their functions.

The people have an avenue to participate in process of making laws at county governments and should utilise the opportunity to determine how the laws that govern them at county levels should be.

The media and the members of the public may be present while members of the County Assemblies are sitting. The people can therefore be up-to -date on the proceedings in the county assemblies through the media and keep the members of the Assemblies accountable.

ii) County Executive Committee

The County Executive Committee comprises the county governor, the deputy county governor and members appointed by the county governor with the approval of the County Assembly.

The County Executive Committee members appointed will not be members from the County Assembly. This is intended to enhance separation of powers between the Assembly and the Executive Committee. As in the case of National Assembly, it is intended that persons appointed as members of Executive Committee are appointed based on their expertise.

Roles of the County Executive Committee

The functions of the Committee are to:

  1. Implement county legislation;
  2. Implement laws enacted by the national government, and
  3. Manage the functions of the county administrations and its departments.

The County Executive Committee is required to provide to the County Assembly regular reports in matters relating to the County.

The members of the Committee are answerable to the governor who is the chief executive.

The county governor and deputy county governor shall not hold offices for more than two terms.

A county governor may be removed from office for violating the constitution, misconduct and mental or physical incapacity to perform functions as county governor. Parliament is required to enact legislation on how county governor may be removed from the office.

Reflection

  • What are the roles of the County Assemblies and the County Executive Committees?
  • How can you as member of the public participate in the affairs of the County Assemblies?
  • How can you as member of public hold your representative in County Assembly accountable?

II. LEADERSHIP THOROUGH ELECTED PERSONS

The elected representatives through who people of Kenya exercise sovereignty are the:

  1. President and the Deputy President,
  2. Members of Parliament,
  3. Member of County Assemblies and
  4. Governor and Deputy Governor of the county.

The elected representatives are referred to as state officers. State officers are required to adhere to the principles of leadership and ethics spelt out in Chapter Six on leadership and integrity.

i) The Principles of Leadership and Ethics

In the course of carrying out their work, the state officers are required to be objective and impartial while making decisions; their decisions should not be influenced by nepotism, favouritism and any improper motives or corrupted practices.

The Constitution provides that every citizen has a right to access information held by the State or another person. The State is required to publish and make public any important information affecting the country. This means the members of public can hold the state officers accountable given they will be able to demand for information, also members of public can detect corruption or improper motives by state officers once they have proper and accurate information in their hands.

The State officers are also required to service the people selflessly. The selfless service is demonstrated by:

  1. Honesty in carrying out their duties;
  2. Declaration of any public interest that may conflict with public duties;
  3. Accountability to the public for their decisions and actions; and
  4. Discipline and commitment in service to the people.

Reflection - What are some circumstances that the decisions by State officers may be influenced by nepotism, favouritism, improper motives or corrupt practices? - How can you promote selfless State officers in your community?

ii) The Conduct of State Officers

The State officers are required to behave whether in public and private life in a manner that avoids conflict of personal interests and public duties. The State officers are also required not to compromise any official interest in favour of personal interest and not to demean the office they hold.

State officers who do not conduct themselves as required shall be subjected to disciplinary proceedings that may have them dismissed or removed from the office. State officers that have been removed from the office are disqualified from holding any other state office.

The State officers are required to be transparent in their management of finances. The State officers should not maintain a bank account outside Kenya except in accordance to laws of Kenya which are to be enacted by parliament.

The State officers are prohibited from seeking or accepting personal loan or benefit in circumstances that compromise their integrity. The State officers are required to deliver to the State any gift or donation they have received during public or official occasion unless they have been exempted under laws that are to be enacted by parliament.

Reflection - What are some of the circumstances that the conducts of State officers may cause them to be subject to disciplinary action or be disqualified from their offices?

iii) Responsibilities of the State Officers

The authority of the State officers is a public trust of which they are required to exercise it in a manner that, is in accordance with the Constitution, as such they have to:

  1. Respect, uphold and defend the Constitution;
  2. Demonstrate respect for the people;
  3. Bring honour to the nation and dignity to the office; and
  4. Promote public confidence in the integrity of the office.

In the course of carrying out their responsibilities the representatives are required to adhere to the national values and principles of governance , while applying the Constitution; making or implementing public policy decisions; and enacting or applying any law.

The national values and the principles of governance include: patriotism, national unity, devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalised, good governance, integrity, transparency, accountability and sustainable development.

The Bill of Rights in the Constitution lists and protects the human rights and fundamental freedoms of people of Kenya and community. The purpose of the Bill of Rights is to promote social justice and the realisation of potential of all human beings. One of the ways to ensure that social justice is promoted and potential of all human being is realised by ensuring the needs of vulnerable groups that include older members of the society, persons with disabilities, children, youth, women, members of minority or marginalised groups, are met. The elected representatives have a duty to ensure that the needs of these vulnerable persons are met.

The Parliament is required to enact laws that will promote the representation of youth, women, persons with disabilities and members of minority or marginalised groups in Parliament.

Reflection

  • What are the responsibilities of State officers?
  • What are the national values that State officers are required to adhere to?
  • What responsibilities do the State officers have towards vulnerable groups?

iv) Qualifications and Disqualifications for Election as National Assembly

The Constitution spells out the qualifications for a person to be elected as Member of the National Assembly . A person qualifies to be elected as Member of the National Assembly, if he or she:-

  1. Is a registered voter;
  2. Satisfies any educational, moral and ethical requirements spelt out in the Constitution or as defined by law enacted by Parliament ;
  3. Is nominated by a political party or is an independent candidate supported by at least 1,000 registered voters in the Constituency.

In addition to these qualifications, Chapter Six of the Constitution of Kenya, 2010 on leadership and integrity sets out in detail how State officers should conduct themselves and their responsibilities. The Constitution defines members of the National Assembly as State officers. What this means is that persons seeking to be members of the National Assembly should conduct themselves as required in the Chapter Six and as well be capable of discharging the responsibilities of a State officer. Therefore it is important for citizens to examine whether persons who come asking for their votes meet the requirements in Chapter Six and uphold the national values in Article 10, before they vote for them, rather than examine them once in office and complain!

The Constitution also spells out what can disqualify a person from being elected as Member of the National Assembly . A person is disqualified, if he or she:-

  1. Is a State officer or other public officer, other than member of the National Assembly or Senate;
  2. Is a member of the County Assembly;
  3. Is of unsound mind;
  4. has not been a citizen of Kenya for at least 10 years immediately from the date the person is seeking election;
  5. Was a member of the Independent Electoral and Boundaries Commission 5 years immediately from the date the person is seeking elections;
  6. Has misused State office or contravened provisions in Chapter Six of the Constitution and is serving at least 6 months imprisonment at the time of registration as parliamentary candidate or on the date of election.

Additionally, a person who is serving as a state officer apart from as Member of the National Assembly or the Senate is disqualified from being elected as Member of the National Assembly.

However, a person who is subjected to a sentence of at least six months imprisonment or found to have misused public office is not disqualified, if possibility of appeal or review of the relevant sentence or decision has not been exhausted. The Constitution guarantees every person the right to fair hearing which includes the right to be presumed innocent until proven guilty, and every person has a right to administrative action that is procedurally fair, lawful, efficient and speedy. Until all possibility of appeal or review has been exhausted then a person is presumed innocent.

v) Qualifications and Disqualifications for Election as Member of the Senate

The Constitution spells out the qualifications for a person to be elected as Member of the Senate. A person qualifies to be elected as Member of the Senate, if he or she:-

  1. Is a registered voter;
  2. Satisfies any educational, moral and ethical requirements spelt out in the Constitution or as defined by law enacted by Parliament;
  3. Is nominated by a political party or is an independent candidate supported by at least 2,000 registered voters in the County.

In addition to these qualifications, Chapter Six of the Constitution of Kenya, 2010 on leadership and integrity sets out in detail how State officers should conduct themselves and their responsibilities. The Constitution defines members of the Senate as state officers. What this means is that persons seeking to be members of the Senate should conduct themselves as required in Chapter Six and as well be capable of discharging the responsibilities of a State officer. Therefore it is important for citizens to examine whether persons who come asking for their votes meet the requirements in Chapter Six and uphold the national values in Article 10, before they vote for them, rather than examine them once in office and complain!

The Constitution also spells out what can disqualify a person from being elected as Member of the Senate. A person is disqualified, if he or she:-

  1. Is a State officer or other public officer, other than member of the Senate or National Assembly;
  2. Is a member of the County Assembly;
  3. Is of unsound mind;
  4. Has not been a citizen of Kenya for at least 10 years immediately from the date the person is seeking election;
  5. Was a member of the Independent Electoral and Boundaries Commission 5 years immediately from the date the person is seeking elections;
  6. Has misused State office or contravened provisions in Chapter Six of the Constitution and is serving at least 6 months imprisonment at the time of registration as parliamentary candidate or on the date of election.

Additionally, a person who is serving as a state officer apart from as Member of the National Assembly or the Senate is disqualified from being elected as Member of Senate.

However, a person who is subjected to a sentence of at least six months imprisonment or found to have misused public office is not disqualified, if possibility of appeal or review of the relevant sentence or decision has not been exhausted. This is on account that the Constitution guarantees every person has right to fair hearing which includes the right to be presumed innocent until proven guilty and every person has a right to administrative action that is procedurally fair, lawful, efficient and speedy. Until all possibility of appeal or review has been exhausted then a person is presumed innocent.

vi) Qualifications and Disqualifications for Election as Member of County Assembly

The Constitution spells out the qualifications for a person to be elected as Member of the County Assembly. .A person qualifies to be elected as Member of the County Assembly, if :-

  1. Is a registered voter;
  2. Satisfies any educational, moral and ethical requirements spelt out in the Constitution or as defined by law enacted by Parliament:
  3. Is nominated by a political party or is an independent candidate that should be supported by at least 500 registered voters in the Ward concerned.

In addition to these qualifications, Chapter Six of the Constitution of Kenya, 2010 on leadership and integrity sets out in detail how State officers should conduct themselves and their responsibilities; The Constitution defines County assembly members are state officers. What this means is that persons seeking to be members of the County Assembly should meet the requirements in the Chapter Six and as well be capable of discharging the responsibilities of a State officer as defined in the Chapter. Therefore it is important for citizens to examine whether persons who come asking for their votes meet the requirements in Chapter Six and uphold the national values in Article 10, before they vote for them, rather than examine them once in office and complain!

The Constitution also spells out what can disqualify a person from being elected as Member of the County Assembly. A person is disqualified, if:-

  1. Is a State officer other than member of county assembly;
  2. Is of unsound mind;
  3. Has not been a citizen of Kenya for at least 10 years immediately from the date the person is seeking election;
  4. Was a member of the Independent Electoral and Boundaries Commission 5 years immediately from the date the person is seeking elections;
  5. Has misused State office or contravened provisions in Chapter Six of the Constitution and is serving at least 6 months imprisonment at the time of registration as parliamentary candidate or on the date of election.

However, a person who is subjected to a sentence of at least six months imprisonment or found to have misused public office is not disqualified, if possibility of appeal or review of the relevant sentence or decision has not been exhausted. This is on account that the Constitution guarantees every person has right to fair hearing which includes the right to be presumed innocent until proven guilty and every person has a right to administrative action that is procedurally fair, lawful, efficient and speedy . Until all possibility of appeal or review has been exhausted then a person is presumed innocent.

The qualifications and disqualifications for a person to be elected as Governor and deputy Governor are similar to those of members of County Assembly.

vii) Qualifications and Disqualification for Election as President

The Constitution spells out the qualifications for a person to be elected as President. A person qualifies to be elected as President, if :-

  1. Is a registered voter;
  2. Is a citizen by birth
  3. Satisfies any educational, moral and ethical requirements spelt out in the Constitution or as defined by law enacted by Parliament ;
  4. Is nominated by a political party or is an independent candidate that should be supported by at least 2,000 registered voters from each of a majority of the counties.

The Constitution also spells out what can disqualify a person from being elected as President. A person is disqualified, if:-

  1. Is a State officer or other public officer, other than as a member of the Senate or National Assembly, President or Deputy President. This essence of this provision is to bar persons who are state officers such as judicial officers, principal secretaries, cabinet secretaries and civil servants from using their positions to seek elections as that would be amount to abuse of their offices.
  2. Is a member of the County Assembly;
  3. Is of unsound mind;
  4. Owes allegiance to a foreign state. The Constitution makes provision for a person to hold citizenship of Kenya and another State. However, a person who seeks to be elected as President should only owe allegiance to the Kenyan state and hence cannot have dual citizenship;
  5. Was a member of the Independent Electoral and Boundaries Commission 5 years immediately from the date the person is seeking elections;
  6. Has misused State office or contravened provisions in Chapter Six of the Constitution; and is serving at least 6 months imprisonment at the time of registration as parliamentary candidate or on the date of election.

Additionally, a person who is serving as a state officer apart from as Member of the National Assembly or the Senate is disqualified from being elected as Member of Senate.

However, a person who is subjected to a sentence of at least six months imprisonment or found to have misused public office is not disqualified, if possibility of appeal or review of the relevant sentence or decision has been exhausted. This is on account that the Bill of Rights guarantees every person has right to fair hearing which includes the right to be presumed innocent until proven guilty and every person has a right to administrative action that is procedurally fair, lawful, efficient and speedy . Until all possibility of appeal or review has been exhausted then a person is presumed innocent.

The qualifications and disqualifications for a deputy president are similar to those of a president.

Reflection

  • What are the qualifications a person should have in order to be nominated as President?
  • What are the qualifications a person should have to be elected as Member of Parliament (Senate and the National Assembly)?
  • What are the qualifications a person should have to be elected as member of County Assembly?
  • What are the qualifications a person should have to be elected as Governor or deputy Governor of a County Assembly?
  • What can disqualify a person from being nominated as President?
  • What can disqualify a person from being elected as Member of Parliament(Senate and the National Assembly)?
  • What can disqualify a person from being elected as member of County Assembly?
  • What can disqualify a person from being elected as Governor or deputy Governor for a County Assembly?