The County Government ( Amendment) Bill, No. 39 of 2024

PECIAL ISSUE

e,t\'u Ga:etta Supplentent No. 140 (Scnota Bills No.39)

REPUBLIC OF KENYA

KENYA GAZETTE SUPPLEMENT

SENATE BILLS,2024

NAIR0BI, lSth .luly, 2024

CONTENT

| ill for Introduction into the Senate- | PAGIl | |-----------------------------------------|---------|

THE COUNTY GOVERNMENTS (AMENDMENT)

BILL,20?A

A Bill for

• AN ACT of Parliament to amend the County '-" io""t"-ents Act to provide for -inter'county t."nrt"., of county public officers' the .ttrif'riitftr"""t of the county public -service boards consultative forum and for connected purposes

ENACTED by the Parliament of Kenya' as follows -

1. This Act may be cited as the County Govemments (Amendment) Act,2024. 2. Section 2 of the County Govemments Act' (hereinafter referred to as "the principal Act".is amended fi'i"t.*i"* 1tt. following new definitions immediately 3. ,i;il;;;firition of the telm "Disciplinary ControL"-

"Forum" means the County Public Service Boards

Consultative Forum established under section 86A;

3. Section l2 of the Intergovernmental Relations Act is amended in paragraph 1a) by inserting the words "' E.;;;; Public Seiice Boards Consultative Forum" i*tt"ii""fv -uft", ttt" words "administration of the 2. Summit" 4. The principal Act is amended by inserting the fottowininewsection immediately after section 73 -

rnter-county

• transfer. 73A. ( I ) A county public officer desirous of transferring his or her servtces from one county to another may apply .in writing to theii respective County Prrhlic Service Board, thiough the authorised officer from which the officer is coming' for
• a transfer of service'
• (2) A CountY Public Service Board shall, within tweniy-one days of receipt of an application, make recommendations subjeci-to any relevant written law in force reliting to retirement benefits'

Short title

Amendment of section 2 of CaP

265.

Amendment of section 12 of CaP

265F.

lnseftion of section 73A in Cap.265.

• (3) Subject to sub-section (2), in order to be considered for transfer, an officer shall be required to have served at a duty station for a continuous period of at leist three years.
• (4) Despite subsection (3), a Count v

3. lne an to the Public Service Board may determ officer's transfer without due regard period prescribed in paragraph (3).

• (5) Where a county public officer is

5. offered an appointment in another countv. the request for transfer of service shall # made in writing to the relevant county public service.

• (6) In making a decision to recommend the transfer of a county public officer, the County Public Service Board shall take into

7. account the - 8. (a) written application from the county public officer; 9. (b) efficiency and effectiveness of public service delivery; 10. (c) existing skills and competencies in the receiving county so as not to disadvantage public officers already serving in the county; and 11. (d) promotion of representation of Kenya's diverse communities, men and women, the members of all ethnic groups and persons with 12. disabilities.

• (7) Where a counry public officer is transferred from one county public service to another, the public officer's accrued benefits relating to the previous period in

14. public service shall not be lost. 15. -(8) For purposes of subclause (7), ttre 16. benefits include-

Insenion of section E6A in Cap. 265.

• (a) accrued pension in accordance with relevant written law relating to pension:
• (b) retirement benefits:
• (c) accrued leave;
• (d) or any other benefit as may be agreed upon bY the concerned county Public service boards.
• (9) A transfer shall not be arbitrary and shall be based on necessity and shall be carried out in a manner that shall not disrupt the operations of a county public service.

5. The principal Act is amended by inserting the following new sections immediately after section 86-

lnscnion of new Pan

vltA.

Eskblishment of the County Public Servicc Board

Consultativc Forum.

PART VIIA - COUNTY PUBLIC SERVICE BOARDS CONSULTATIVE

FORUM

• 86A. (l) There is established a County Public Service Boards Consultative Forum.
• (2) The Forum shall comprise -
• (a) a representative from each of the forty-seven County Public Service
• Boardst and
• (b) a secretary to the Forum who shall be an ex-officio member and shall have no right to vote at any meeting of the Forum.
• (3) The representative referred to in subsection 2(a) shall be drawn from the membership of the Board appointed under section 58(l)(a) or (b).
• (4) At the first meeting, the Forum shall elect a chairperson and a vice-chairperson amongst their membership and regard shall be taken to ensure that the chairperson and vice-chairperson shall be of the opposite gender.

Insenion of section Purposc ofthc Forum 868 in Cap. 265.

Insenion of section 86C in Cap.265.

Insenion of scction 86D in Cap. 265.

Meetings of the

Forum.

Qualifications for appointment of Secretary to the

Forum.

• (5) The position of chairperson and vice-chairperson of the Forum shall be held by the various county public service boards on a rotational basis in such manner as the Forum may determine.
• (6) A member of the Forum appointed under subsection (2)(a) shall hold office for a term ofthree years and shall not be eligible for reappointment.

3. E6B. (l) The Forum shall - 4. (a) develop criteria and framework for determining County public service matters requiring inter-county 5. consultation; 6. (b)develop inter-county agreements for joint implementation of any activities related to efficient county public service delivery; and 7. (c) be a platform for 8. mutual consultation, coordination and collaboration among the fortyseven County Public Service Boards on all matters related to the public service. 9. (d) provide linkages with other relevant stakeholders for the furtherance of 10. the functions of the Forum; and 11. (e) mediate any disputes arising from the respective County Public 12. Service Boards. 13. E6C. (l) The Forum shall meet at least once every year on a rotational County basis

• (2) The forum shall prescribe its own procedures for its meetings.

15. E6D. A person shall be qualified for appointment as a secretary to the Forum if that person - 16. (a) holds a degree from a university recognised in Kenya;

lnsenion of section E6E in Cap. 265.

Insenion of section 86F in Cap.265.

Inscrtion of section 86C in Cap. 265.

Functions of thc s€cr€tary to thc

Forum.

Term of officc of secretary to thc Forum.

Rcmoval from offrcc of sccrctary

to the Forum.

• t least ten
• (b) has knowledge and a years work experience management position: in a senior
• (c) is an emPloYee Intergovemmental the Relations
• Technical committee; of
• (d) meets the requirements of Chapter
• Six of the Constitution;
• (e) has not been adjudged bankruPt;
• and
• (11 has not been convicted of offence and sentenced imprisonment for at least an to six
• months.
• 86E. In exercise of functions under this Act, the secretary to the Forum shall, subject
• to the direction of the Forum -
• (a) be responsible for the day-to-day management of the Forum;
• (b) oversee and coordinate the implementation of the Policies, programmes and objectives of the
• Forum;
• (c) cause to be PrePared approval of the Forum -
• for the
• the strategic Plan and annual plan of the Forum; and
• (i)
• (ii) the annual budget and audited accounts of the Forum; and
• (d) perform such other duties as may be assigned to the secretary bY the
• Forum.
• 86F. The secretary to the Forum shall hold office for a term of three years and shall be eligible for reappointment for one
• further term.
• 86G. (l) The Forum may terminate the appointment of the secretary to the Forum
• for-

Inscnion of scction StarTofthc Forum

86H in Cap. 265.

lns€flion of section 861 in Cap. 265.

Prctection frcm personal liability

lnscnion ofsection Funds ofthe Forum E6J in Cap.265.

• (a) inability to perform the functions of the office arising out of physical or mental incapacity;
• (b) gross misconduct or misbehaviour;
• (c) incompetence or neglect of duty; or
• (d) is no longer an employee of the Intergovernmental Relations
• Technical Committee.
• (2) The termination under Subsection ( I ) Shall not affeet the employment terms of the Secretary to Intergovemmental Relations Technical Committee.
• 86H. (l) The Forum may appoint such officers in consultation with the Intergovernmental Relations Technical Committee, agents and staff as are necessary for the proper and efficient discharge of the
• functions of the Forum under this Act.
• (2) The staff appointed under subsection ( I ) shall serve on such terms and conditions as the Forum may. in consultation with the Intergovernmental Relations Technical
• Committee. determine.
• E6I. ( I ) In accordance with Article 236. No matter or thing done by an officer or an employee of the Forum shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Forum, render the officer or employee so acting, personally liable for any action, claim or demand.
• (2) Subsection ( I ) shall not relieve the Forum from liability to pay compensation or damages to any person for any injury to that person, or other loss caused by the exercise of any power conferred by this Act or any other written law or by the failure of any
• works of the Forum.
• E6J. (l) The funds of the Forum shall consist of monies as may be lawfully granted or donated to the Forum.

of n€w 86K in Act Cap.265.

of section Cap.265

Accounts and

• audit. E6K. ( l) The Forum shall cause to be kept proper books and other records of accounts of the income, expenditure and the assets of the Forum.
• (2) The accounts of the Forum shall be audiled and reported upon in accordance with the provisions of the Public Audit Act.

Annual rcgrn and

ProSr8mme.

• E6L. (l) The Forum shall, within a period of four months after the end of each financial year, submit to the Senate, the County Assemblies and the Council of County Governors an annual report on the activities and operations of the Forum in the preceding fi nancial year.
• (2) A report of the Forum submitted under subsection (l) shall include an annual programme outlining a comprehensive plan of action for the subsequent finanelal year.

MEMORANDUM OF OBJECTS AND REASONS

The principal object of this Bill is to provide a legislative framework that will facilitate the inter-county transfer of pensionable county public officers. It seeks to allow for the seamless movement of these officers between county public services without compromising their accrued benefits, thus promoting efficiency, national integration, cohesion, and the effective delivery of public services across counties. The proposed legislation opens the avenue for counties to send and receive experienced officers based on specific needs. By allowing officers to transfer between counties, the Bill ensures that expertise and competencies can be evenly distributed, thus enhancing the efficiency anp effectiveness of public

service delivery across the nation.

The Bill further seeks to establish a county public service board consultative forum which recognizes the critical role played by the individual County Public Service Boards and seeks to offer a more robust and collaborative platform to facilitate their functions.

Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms

The Bill does not contain any provisions limiting any fundamental rights or freedoms in the Bill of Rights and it does not delegate legislative powers.

Statement on how the Bill concerns county governments

The Bill concerns county governments as stipulated under Article I l0(l)(a) of the Constitution. The Bill addresses the inter-county movement of pensionable county public officers, a matter directly linked to the human resource functions of county govemments as highlighted in the Fourth Schedule. By providing a framework for the transfer of officers between counties, the Bill has a direct bearing on the powers and responsibilities of counties to manage their personnel for effective service delivery. Furthermore, the safeguarding of rights and benefits for transferring officers also impacts county financial obligations and administrative functions. Therefore, the Bill affects the functions and powers of county govemments as enumerated in the Fourth Schedule of

the Constitution.

Statement that the Bill is not a money Bill within the meaning of Article 114 of the Constitution

The enactment of this Bill shall not occasion additional expenditure of public funds.

Dated on the l5th May,2024.

section 2 rf Cap 265 oJ the lav,s of Kenya, w,hich it proposes to antend2. Interpretation in this At't, unless the conte-\t otherv'ise requires-

..analysisoffunctions.'meansprocessesof,andmechanismsfor reviewing'and reassigning powers and- competencies between the national governmlnt and couity g"ovemments in accordance with the provisions of ite Conrtitution generall-y and in particular, the provisions of the Fourth

Schedule thereto;

"apex body" means the body established under the law governing inter- governmental relations:

"appointment" includes an acting appointment, reappointment' promotion and re-desi gnation :

"authorized officer" includes -

• (a)theholderoftheofficeofcountychiefofficerinacounty department; or
• (b) in case of a deP administration of department; and artment that is not assigned or under direct county chief officer, the head of that a
• (c) any other public officer appointed by the County Public Serv-ice ' Board to be an authorizid officer with respect to a specified public body including a city or urban area;

..Cabinet Secretary" means the Cabinet Secretary responsible for

matters relating to inter-governmental relations;

..city''hasthemeaningassignedtoitundertheUrbanAreasand

Cities Act (Cap.275'l;

..codeofconduct''meansanywrittenstandardissuedbyalawful authoritytoguidetheconductofanycountypublicofficerorcategoryof county public officers;

..competencies''meanspowersgiventoapublicauthorityinrespect of a specihc activity which is key to ensuring the provision of a public servici and includei powers of planning, regulating, setting standards' "ontt.u"ting, financing, managing' monitoring and evaluating' sanctioning

or interveniltrg in any iay to ensure that a function is discharged;

..conditions of service" include any criterion or circumstance or factor for a p€rson's-

• (a) appointment, secondment. deployment. promotion or discipline with respect to a public office;
• (b) retention in employment as a public officer: or
• (c) remunerative. retirement and other benefits:

"Constitution" means the Constitution of Kenya. 20 l0;

"county assembly" means a county assembly established under

Article 176 of the Constiturion:

"county assembly member" means a member elected or nominatecl in

accordance with Article 177( l) of the Constitution;

"county chief officer" means a county chief officer appointed under

section 45:

"county executive committee" means a county executive committee established in accordance with Article 176 of the Constitution:

"county Gazette" means a Gazette published by the authority of the county government or a supplement of such Gazette:

"county government" means the county government provided tbr

under Article I76 of the Constitution:

"county government election" means an election of Governor and

county assembly members:

"county public office" means an ofTice in the county public service or an office in a public body but does not include any office specifically exempted by the Constitution liom the powers of the county govemment;

"county public officer" means any person appointed by the county government and holding or acting in any county public office whether paid, unpaid. or on contractual or permanent terms but does not include a person engaged on a part-time basis in a county public body paid at an hourly or daily rate:

"county public service" means the collectivity of all individuals performing functions within any department of the county govemment or its agency, but does not include the Covernor, deputy Governor, members of the county executive committee and the members of the county assembly;

"deputy Governor" me ns u person nominated by the Covernor in

accordance with Article lU0 of the Constitution;

"disciplinary control" means the imposition of any punishment against a public off icer on account of breach of a code of conduct;

"CIS based database system" means a geographical information management system that integrates hardware, sofiware and data for capturing, managing. analyzing and displaying forms of geographically

referehced information:

"Govemor" means a county Governor elected in accordance with

Article 180 of the Constitution:

"input indicator" means an indicator that measures the costs,

resources or time used to produce an output:

"marginalised group" has the meaning assigned ro it by Article 260

of the Constitution:

"merit" when used with rel'erence to a person who is a candidate for appointment, promotion or re-designation to a county public office,

means -

• (a) the abilities, qualifications and personal qualities required to satisfy any prescribed criteria fbr appointments in the county public service. or to carry out the duties of the county public
• olTice: and
• (b) the person's potential firr developmenr;

"outcome indicator" means an indicator that measures the quality or impact of an output in achieving a particular objective:

"output indicator" means an indicator that measures the results of activities, processes and strategies of programmes or projects of a county government;

"promotion" means the conf'erment upon a person in the county public service of an office to rvhich is attached a higher salary or salary scale than that attached to the previous office substantively held by that person:

"public officer" has the meaning assigned to it in Article 260 of the

Constitut ion:

"qualification" means any prescribed factor of eligibility or ineligibility attached to holding or acting in a county public office;

"re-designation" means the conferment upon a person. of a county public office at a grade equal to or substantially equal to the one previously held by that person and whose major consequence is to change ttom one cadre to the other to tacilitate that person's horizontal mobility characterized with change in career path;

a

..retirement" means the removal of an officer from the public service with full separation benefits including pension benefits, gratuity or such other terminal benefits as may be provided for in the applicable law or the contract of service or a special retirement scheme agreed upon between the public officer and the relevant lawful authority;

"salaries and Remuneration Commission" means the Salaries and Remuneration commission established under Article 230(l) of the Constitution;

"secondment" means a temporary leave from discharging the duties of a county public office with a view of the concerned county public officer being-employed outside the county public service or in another public body;

"shared services" means -

• (a) the centralisation at a county or other level of those administrative functions of a county that could be performed by different units including matters such as supply chain management, Iuman resource management, information technology, purchasing, inventory, payroll, hiring, and information technology; or
• (b) partnerships between counties, a county or counties and national govemment and public private partnerships to deliver a specified set of public services;

"speaker" means the speaker of a county assembly elected under

Article 178 of the Constitution;

"the public", when used in relation to public participation in this Act' means-

• (a) the residents of a particular county;
• (b) the rate payers of a particular city or municipality;
• (c) any resident civic organisation or non-govemmental, private ' -se"tor or labour organiiation with an interest in the governance of a particular county, city or municipality;
• (d) non-resident persons who because of their temporary-presence in a particular cbunty, city or municipality make use of services or
• facilities provided by the county, city or municipality;

"urban area" has the meaning assigned to it under the Urban Areas

and Cities Act (CaP. 275);

"Ward" means an electoral unit within a constituency delimited in accordance with Article 89 of the Constitution and any other relevant law;

and

"Ward representative" means a county assembly member representing a particular Ward.

Section l2 of Cap 265 of the laws of Kenya, which it proposes to amend-

The county assembly service board

12. (l) There shall be a county assembly service board for each county assembly.

• (2) The county assembly service board shall be a body corporate with perpetual succession and a common seal.
• (3) The Board consists of-

4. (a) the Speaker of the county assembly, as the Chairperson; 5. (b) a vice-Chairperson elected by the Board from the members appointed under paragraph (c); 6. (c) two members of the county assembly nominated by the political parties represented in the county assembly according to their proportion of members in the county assembly; and 7. (d) one man and one woman appointed by the county assembly from amongst persons who are experienced in public affairs, but are not members of the county assembly. 8. (3A)The members of the Board appointed under section l2(3)(d) shall serve on a part-time basis.

• (4) The county assembly clerk shall be the secretary to the county assembly service board.

10. (5)A member of the county assembly service board shall vacate 11. office - 12. (a) if the person is a memberof the county assembly- 13. (i) 14. at the end of the term of the county assembly; or 15. (ii) if the person ceases to be a member of the county assemblyl or 16. (b) if the person is an appointed member, on revocation of the person's appointment by the county assembly; or 17. (c) if the person is the Speaker, when the person ceases to be such Speaker.

• (6) Despite subsection (-5), when the term of the county assembly ends, a member of the county assembly service board under subsection (3Xd) shall continue in office until a new member has assumed olTice in the member's place in the next assembly.
• (7) The county assembly service board is responsible fbr-

3. (a) providing services and f'acilities to ensure the efficient and effective functioning of the county assembly; 4. (b) constituting offices in the county assembly service, and appointing and supervising office holders; 5. (c) preparing annual estimates of expenditure of the county assembly service and submitting them to the county assembly for approval, and exercising budgetary control over the service; 6. (d) undertaking, singly or jointly with other relevant organizations, programmes to promote the ideals of parliamentary democracy; 7. and 8. (e) performing other tunctions 9. (i) necessary for the well-being of the members and staff of the 10. county assembly; or 11. (ii) prescribed by national legislation.

Section 73 of Cap 265 of the law,s of Kenya, whic'h it proposes to amend-

Secondments

73. ( I ) The national government shall put in place measures to protect its public officers on secondment to the counties from loss or disadvantage with respect to pension benefits, gratuity or other terminal benefits.

• (2) Unless there is an agreement to the contrary, it shall be the responsibility of the national government to pay the salaries, remuneration, allowances and other benefits due to the staff seconded to a county government during the transition period.
• (3) If for any reason it is not necessary for an officer on secondment to remain seconded and the secondment period has not lapsed, the officer

4. shall be entitled to revert back to the public otfice held before secondment.

• (4) The County Public Service Board shall not allow a public officer to proceed on secondment if it is not in the interest of the public officer or the concemed county public service.

6. -

• (5 ) The County Public Service Board making a decision on ment shall not allow the secondment unless it has considered the sentation by the concemed authorized officer or head ofdepartment.

tion 86 oJ Cap 265 of the laws of Kenya, whieh it proposes to amend-

by County Public Service Board

86. ( l) The County Public Service Board may delegate, in writing, an of its functions to any one or more of i officer, sub-county or ts members and the county , county chief Ward administrator, village inistrator, city or municipal manager and town administrators.

• (2) The provisions of this Part shall apply to the person to whom the are delegated under this section