The Constitution in Article 192 provides for the procedure for suspension of a county government in Kenya. It is the role of the President to handle the dissolution of a county government in Kenya.
Part XIII of the County Governments Act contains further provisions on the dissolution of a county government in Kenya.
Under what circumstances can a county government be dissolved? The President may suspend a county government under two grounds:
- in an emergency arising out of internal conflict or war; or
- in any other exceptional circumstances
A county government should not be suspended in any other exceptional circumstances unless:
- an independent commission of inquiry has investigated allegations against the county government,
- the President is satisfied that the allegations are justified, and
- the Senate has authorised the suspension.
During a suspension under Article 192, arrangements should be made for the performance of the functions of a county government in accordance with an Act of Parliament (this is found in the County Governments Act).
The Senate may at any time terminate the suspension.
A suspension under Article 192 should not extend beyond a period of ninety days. On the expiry of the 90-day period, elections for the relevant county government should be held.
procedure for the suspension of a county government
As indicated, the President may suspend a county government in an emergency arising out of internal conflict or war or in any other exceptional circumstances.
Suspension of county government in exceptional circumstances
Section 123 of the County Governments Act provides for the suspension of county government in Kenya in exceptional circumstances.
A person may petition the President to suspend a county government in any other exceptional circumstances if the county government engages in actions that are deemed to be against the common needs and interests of the citizens of a county.
A petition to suspend a county government in ay other exceptional circumstances should be supported by the signatures of not less than ten per cent of the registered voters in the county.
The President should, within fourteen days after receiving a petition against a county government, submit a report on the averments (allegations) made and grounds giving rise to the suspension of a county government before the apex intergovernmental body (hereinafter referred to as the apex body) established under the law governing intergovernmental relations for approval.
Upon approval by the apex body, the President should nominate members of a Commission to inquire into and investigate the situation in the county and make recommendations on the suspension of the county government and should, after approval by Senate, appoint the members of the Commission by notice in the Kenya Gazette.
The Commission should comprise—
- a chairperson, who should be an advocate of the High Court of Kenya with at least fifteen years’ experience;
- the chairperson of the National Police Service;
- two residents in the affected county and who have not for the last ten years stood for an elective office in the affected county government, or have been an officer or employee of the affected county government; and
- two other persons not resident in the affected county with experience in conflict management.
The Commission should have all or any of the powers vested in a Commission under the Commissions of Inquiry Act (Cap. 102). At any inquiry the Commission undertakes, the county government in question and any member thereof should be entitled to be heard (they can appear before the Commission to argue their case).
The Commission should inquire into the matters before it expeditiously and report on the facts and make recommendations to the President.
Upon receipt of the report of the Commission and upon being satisfied that justifiable grounds exist for suspension of a county government, the President should within seven days forward the report and the recommendations of the Commission, together with the petition for suspension of the county
government to the speaker of the Senate.
The speaker should ensure a motion for the suspension of the county government is laid before the Senate within seven days and approval by Senate should be by a resolution adopted in accordance with the provisions of Articles 122 and 123 of the Constitution (Voting in Parliament and Decisions of Senate respectively).
Upon approval by the Senate, the President should, by notice in the Gazette, suspend the county government for a period not exceeding ninety days, or until the suspension is terminated earlier by the Senate in accordance with Article 192(4) of the Constitution (“the Senate may at any time terminate the suspension”).
However, there are two instances upon which the dissolution of a county government may not happen:
- if the president is not satisfied with the report of the Commission that justifiable grounds exist for suspension of a county government, and
- if the Senate rejects a motion for the suspension of a county government.
Prorogation of the county assembly
During the period of suspension of a county government, the county assembly should stand prorogued.
Prorogation is the action of discontinuing a session of the County Assembly without dissolving it.
During a period of suspension, the speaker and members of the county assembly should remain in office and should retain half their benefits (salaries, etc).
All Bills introduced before the county assembly and that have not received assent prior to suspension should expire and should be re-introduced as new bills upon the end of the suspension.
County assembly committees should be dissolved during the period of suspension and should be reconstituted upon the end of the suspension.
The prorogation of the county assembly should come to an end—
- if the suspension is terminated by the Senate;
- upon the expiry of ninety days; or
- upon the publication of a notice on the holding of the election of the county assembly in the Kenya Gazette by the Independent Electoral and Boundaries Commission according to the provisions of the Elections Act).
Suspension of the county executive committee
During the period of suspension of a county government, the functions of the county executive committee should be suspended and its functions should be undertaken by an interim county management board.
During a period of suspension, the governor, deputy governor and members of the executive committee should receive half of their benefits.
Termination of suspension
The suspension of a county government in Kenya should be terminated in the following ways—
- upon the expiry of ninety days; or
- upon termination by the Senate by a resolution adopted in accordance with Articles 122 and 123 of the Constitution.
County elections after suspension
Elections for a suspended county should be held within ninety days after the suspension.
The Independent Electoral and Boundaries Commission should cause elections of the governor and the county assembly to be held in the affected county according to the provisions of the Elections Act (No. 24 of 2011).