How counties are breaking law that created them

As Kenyans mark 15 years since the promulgation of the Constitution, county governments have come under sharp scrutiny for widespread violations of the very law that created them.

Chapter 11, Articles 174 to 200, introduced 47 devolved governments and set out their objects, principles and structures.

The Fourth Schedule assigned counties critical responsibilities such as health, agriculture, transport, trade regulation, pre-primary education, environmental conservation, disaster management, and community participation. These functions were meant to take the government closer to the people and address inequalities in development.

Devolution, which came into force in March 2013, was expected to transform governance by ensuring accountability and equitable growth, and spur grassroots development.

Yet as the first Katiba Day is marked today, the most recent report from the Office of the Auditor General paints a damning picture. 

The 2023/2024 audit exposes systemic violations ranging from ballooning wage bills and illegal pending bills to procurement scandals, ghost workers, and diversion of development funds. Auditor General Nancy Gathungu notes that county governments are showing a consistent pattern of disregard for constitutional principles.

“Lack of action and sanctions has also led to fiscal indiscipline including misallocations, wastage of resources, lack of value for money in the implementation of projects and loss of public funds, thereby impacting negatively on development programs,” states the report.

One of the most glaring violations relates to bloated wage bills. Under Regulation 25(1)(b) of the PFM (County Governments) Regulations, 2015, counties are required to cap personnel emoluments at 35 per cent of their total revenues.

Yet according to the Auditor General’s report, 40 counties ignored this ceiling.

Kisii topped the list by spending 68 per cent of its revenue on salaries, followed by Taita Taveta at 66 per cent. Nairobi spent 52 per cent, Kisumu 47 per cent, Kakamega 45 per cent, and Kiambu 44 per cent. Others, including Bungoma, Nyeri, Vihiga, and Nakuru also breached the limit.

Procurement irregularities featured prominently in the report. Thirty-two county executives were cited for unlawful procurement practices amounting to more than Sh10 billion. 

Nairobi was responsible for contracts worth Sh3.2 billion that did not follow the law, while Kericho accounted for Sh1.9 billion. 

Human resource management was equally riddled with malpractice, contrary to Articles 232 and 235. Bomet, Bungoma, and Uasin Gishu were cited for keeping ghost workers on their payrolls. Vihiga recruited outside approved structures, while Turkana and Marsabit expanded their payrolls through irregular appointments. 

Article 227 requires procurement to be fair, transparent, and accountable, yet counties are sinking into unsustainable debt.

Nairobi’s arrears stood at a staggering Sh119 billion as of June 2024, representing more than half of all county pending bills combined. 

Embu followed with Sh18.2 billion, while Kiambu owed Sh6.8 billion, Kilifi Sh6.2 billion, Machakos Sh5.6 billion, Kakamega Sh5.2 billion, Kisumu Sh4.7 billion, Turkana Sh3.2 billion, Vihiga Sh2.1 billion, and Bomet Sh1.5 billion.

“Some of the County Governments’ pending bills related to prior financial years and they lacked supporting schedules and documentation. Failure to clear pending bills as a first charge is contrary to Regulation 55(2)(b) of the Public Finance Management (County Governments) Regulations, 2015,” read part of the Auditor-General's report.

Development spending, which was supposed to be the lifeblood of devolution, was also sacrificed in favour of recurrent costs. 

The PFM Act requires counties to allocate at least 30 percent of their budgets to development projects.

Kitui allocated only 22 percent, Siaya 25 percent, and Homa Bay 23 percent. 
Even larger counties such as Kakamega and Kisumu failed to meet the threshold as salaries and recurrent expenditure consumed the lion’s share of their budgets.

The Auditor-General warned that the spirit of devolution is undermined where citizens are denied services because resources are swallowed by wages and operational costs.

The breaches, she concluded, are disturbingly consistent across all devolved units while governors are generally faulted for constitutional violations that have seen some charged in court together with their subordinates.

Some are said to have breached Article 10 on national values and principles of governance, Article 201 on prudent use of public resources, Article 227 on transparent procurement, Article 232 on values in public service, and Article 235 on county staffing.

Statutory laws such as the Public Finance Management Act, the Public Procurement and Asset Disposal Act, and the Employment Act are equally disregarded.