handbook on governing responsibility in kenya

8/6/2019 Handbook on Governing Responsibility in Kenya

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REPUBLIC OF KENYA

OFFICE OF THE PRESIDENT

CABINET OFFICE

HANDBOOK ON GOVERNING RESPONSIBILITYIN KENYA

NOVEMBER 2005


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TABLE OF CONTENTS

CHAPTER ONE: THE EXECUTIVE...................................................................................1

1.1 The Executive ............................................................................................................1

1.2 Presidents Functions and Powers .............................................................................11.3 Vice-Presidents Roles...............................................................................................1

1.4 Ministers Responsibility and accountability.............................................................1

1.5 Functions and Powers of Ministers............................................................................2

1.6 Acting Ministers.........................................................................................................3

1.7 Ministers Personal Conduct......................................................................................3

1.8 Ministers Personal Staff...........................................................................................3

1.9 Ministers and the Law................................................................................................3

1.10 Relations with the Judiciary and Other Government Agencies................................4

1.11 State Corporations and Other Bodies.........................................................................4

1.12 Ministers Relations with the National Assembly .....................................................51.13 Ministers House Duties ............................................................................................5

1.14 Assistant Ministers.....................................................................................................7

1.15 Ministers and Assistant Ministers Travel Coordination..........................................7

1.16 Security ......................................................................................................................7

1.17 Cabinet, Institutional and Personal Records ..............................................................8

1.18 Conflict of Interest .....................................................................................................8

1.19 Invitations ..................................................................................................................8

CHAPTER TWO: PERMANENT SECRETARIES..........................................................102.1 Permanent Secretary, Secretary to the Cabinet and Head of the Public Service ....10

2.2 Roles of Permanent Secretaries ...............................................................................10

2.2.1 Permanent Secretary as an Accounting Officer. ......................................................112.2.2 Permanent Secretary as Authorised Officer............................................................12

2.3 Financial Conflict between a Permanent Secretary and his Minister .....................13

2.3.1 Conflict between a Permanent Secretary and his/her Minister on matters relating

to Staff Management...............................................................................................13

2.4 Financial and Resource Management......................................................................14

CHAPTER THREE: THE ROLE OF PARLIAMENT.....................................................15

3.1 Legislative Programme............................................................................................15

3.2 Speaker of the National Assembly...........................................................................16

3.3 Clerk of the National Assembly...............................................................................16

3.4 Parliamentary Clerks................................................................................................16

3.5 Leader of Government Business- House Duties......................................................163.6 Parliamentary Committees and the Role of Departmental Officials ......................17

CHAPTER FOUR: KEY DEPARTMENTS IN GOVERNMENT OPERATIONS AND

MANAGEMENT ...................................................................................................................19

4.1 Background..............................................................................................................19

4.2 The Attorney General ..............................................................................................19

4.3 Cabinet Office..........................................................................................................20

4.4 State House ..............................................................................................................21

4.5 The Ministry Of Finance.........................................................................................21

4.6 The Public Service Commission (PSC) ...................................................................22

4.7 Directorate of Personnel Management (DPM) ........................................................23

ANNEXES ..............................................................................................................................24Annex A...............................................................................................................................24


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A.1 Cabinet Decision Making ........................................................................................24

B.2 Basic Rules for Cabinet Business ............................................................................25

B.3. Cabinet and its Committees .....................................................................................26

B.4. Legal Notices ...........................................................................................................27

B.5. Financial Procedures................................................................................................27

Annex C ...............................................................................................................................27C.1 Appointments...........................................................................................................27

Annex D...............................................................................................................................28

D.1 Cabinet, Institutional and Personal Records. ...........................................................28

Annex E ...............................................................................................................................29

E.1 Basic Principle on quasi-judicial tribunals ..............................................................29

E.2 Dealings with Quasi-Judicial Tribunals within the Ministry...................................29

E.3 Dealings with Quasi-judicial Tribunals on Behalf of Constituents ........................29

Annex F Dealings with State Corporations .....................................................................30


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FOREWORD

Kenyans are expecting better services from their government and its publicservice. The Government must lead in adapting our political and other institutions toenhance confidence in our system of government. To this end, we must recognize and

strengthen the critical roles of the three arms of Government. The core principles of mygovernment will be transparency, accountability, financial responsibility and ethical conduct.Kenyans must have faith that their government is managing their affairs in an open, honestand transparent manner.

Ministers, Assistant Ministers and Permanent Secretaries, are expected to workhard to earn the support and respect of Kenyans and colleagues in parliament and publicservice respectively through active engagement and the highest standards of ethicalconduct.

The HANDBOOK ON GOVERNING RESPONSIBLY IN KENYA explains theprinciples of sharing responsibilities and actions that are intended to guide you inundertaking your official duties and fostering unity of purpose in Government operations. The

conduct of Ministers, Assistant ministers and Permanent Secretaries is to be guided by thefollowing principles:

Integrity: You must uphold the highest ethical standards so that publicconfidence, trust in the honesty, objectivity and impartiality of government areupheld. Ministers in particular, have an obligation to perform their official dutiesand arrange their private affairs in a manner that bears the closest publicscrutiny. This obligation is not fully discharged merely by acting within the law.

Public confidence: You must always preserve the public confidence in theintegrity of management and operations within your Offices. You must carry outpowers, duties and functions of your offices in accordance with the constraintsprovided by the law.

Accountability: Ministers and Assistant Ministers are accountable to parliamentfor the use of the powers vested in them by law. This requires your presence inParliament to answer questions about the use of those powers. You must acceptthe responsibilities that flow from those powers. It is most important for you togive honest, accurate and truthful information to Parliament. You must take stepsto correct any inadvertent error at the earliest opportunity.

Confidentiality: Ministers and Assistant Ministers are bound by the oath of Office. This oath requires you to uphold the constitution and the confidentiality of cabinet

decisions. You are also expected to uphold the principle of collectiveresponsibility.

Non-partisan Public Service: Ministers must respect the non-partisan nature ofthe public Service of Kenya. The public Service will provide you with theexpertise and advice needed to enable you fulfil your ministerial functions andmandate without regard to political partisanship.

This Handbook will aid you in your role of promoting a culture of integrity, achievement andrespect for our democratic institutions in a working Nation. We owe this to our fellowcitizens.

MWAI KIBAKI

PRESIDENT


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CHAPTER ONE: THE EXECUTIVE

1.1 The Executive

Kenya is a sovereign Republic. The Republic of Kenya is a multi-party democraticstate. Thus, the structures and conduct of executive authority are governed byKenyas constitution, written Law and customs that have been established and haveevolved over the history of Kenya. The Executive Authority of the Government isvested on the President assisted by the Cabinet Ministers who are responsible toParliament and the citizens in general.

1.2 Presidents Functions and Powers

The President, who is both head of state and government, is above all, responsiblefor appointing members of the Cabinet and for providing the leadership necessary tomaintain the unity of the Government. This unity is essential if the government is tomaintain the confidence of Kenyans.

The following are the principal functions of the President:

The Commander In- Chief of the Armed Forces.

Appoints the principal holders of public office

Chairs Cabinet meetings, approve the agenda of the meetings and decide theorganization, procedures and composition of the same.

Lead the process of setting the general direction of government policy.

Determine the broad organization and structure of the government in order tomeet its objectives.

Supervise the conduct of Ministers.

Sign the Presidential or General Warrant, which authorises issues from theConsolidated Fund in accordance with the Appropriation Act.

Assent all bills passed in parliament before they can become law.

1.3 Vice-Presidents RolesThe Vice-President is the principal assistant to the President in all his

responsibilities. He is also a member of the Cabinet and can be assigned a

ministerial portfolio at the prerogative of the President.

1.4 Ministers Responsibility and accountability

Section 16 of the constitution empowers the President to appoint Cabinet Ministersfrom among members of the National Assembly. Thus, the Cabinet Ministers are

accountable to both the President and the National Assembly in the performance oftheir duties; Ministers are individually accountable for executing the responsibilities


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assigned to them by the President. The Ministers are therefore expected to upholdboth the individual and collective responsibilities

Since the Minster is accountable to Parliament on matters of management of therespective ministry, Assistant ministers and all staff in the ministry should support

him or her to collectively implement Government policies. They should thus workclosely, consistently and in a well-coordinated manner in liaison with the NationalAssembly. In addition, the ministers are expected to participate in the approval ofgovernment policies before presentation to the National Assembly. This act in itselfmakes them own all Cabinet decisions and cannot therefore disown them unlessthey resign from the government. Ministers are expected to spearhead and supportpolicies emanating from their ministries and especially if the matter under discussioncuts across several ministries.

In pursuing government business, all Cabinet Ministers should observe CabinetSolidarity and confidentiality. Since the overall government agenda largely

determines the ministrys goals, ministers are expected to work closely with theircolleagues to ensure that their ministries agenda is included in the broader nationalagenda and the minister is individually accountable for this.

1.5 Functions and Powers of Ministers

The President, through Presidential Circulars spells out the duties of Ministers. Onthe other hand, the relevant statutes vest ministers with powers used for the day-to-day management of their ministries. These powers are held in trust of the State.

The powers are then delegated to Permanent Secretaries and heads of departmentto exercise on their behalf. Despite this arrangement, Ministers are responsible tothe National Assembly individually and for actions of subordinate staff and bodiesfalling under their ministry. The Ministers are particularly charged with theresponsibility of:-

Shaping future policies and laws.

Ensuring service delivery within the governments policy and legislativeframework;

Ensuring that advisory Committees that make decisions and determineappeals from the public are functional.

Ensuring that State Corporations provide services in accordance with thefunctions of the Ministry.

The ministers also oversee state corporations falling within their mandate and whichmaintain unique relationships with the line ministry. However, all these statecorporations are answerable to the National Assembly through them.

The Minister, in addition to the other roles given, is responsible for coordination ofoverall governance, legislation and programmes to meet the objectives of theministry. These roles are played through the assistance of the Permanent Secretary,who is his/her principal adviser on all matters of the ministrys management. ThePermanent Secretaries are responsible for policy implementation coordination and


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harmonization of activities. Ministers should also guide state corporations undertheir ministry to contribute to the overall objective of the ministry.

1.6 Acting Ministers

The President can appoint a Minister to act in another Ministry during the absence ofa colleague. In such a case, the acting Minister may exercise the full powers of theMinister, but is highly advised not to make major decisions during the actingcapacity. Should a need for making such a decision arise, the acting minister isadvised to consult the Permanent Secretary, his or her colleagues or the President.

1.7 Ministers Personal Conduct

The President holds Ministers to the highest standards of conduct for all theiractions, including those that are not directly related to their official functions.Ministers are therefore expected to adhere to the Public Officer Ethics Act, 2003 inall circumstances, whether acting as a Minister, a Member of Parliament or a privatecitizen. This is meant to uphold the image of the minister as an individual as well asthat of the government

The ministers must also act with honesty and must uphold the highest ethicalstandards to ensure that public confidence and trust in the integrity, objectivity andimpartiality of government are maintained and enhanced. Ministers, have an

obligation to perform their official duties and arrange their private affairs in a mannerthat will bear the closest public scrutiny. This obligation is not fully discharged merelyby acting within the law.

1.8 Ministers Personal Staff

Ministers are responsible for the operations in their offices. The minister is assigneda Personal Assistant who is a Government employee. The Personal Assistant isexpected to carry out his duties in a non-partisan manner, observe the principle ofconfidentiality, liaise with the departments and provide general assistance to theMinister in all official matters.

1.9 Ministers and the Law

All government activity must be implemented in accordance with the law. Ministershaving any doubts on the legality of a particular action should refer to theirPermanent Secretary or seek legal advice from the Attorney General. As much aspossible, ministers should be guided by the various statutes and regulationsgoverning the management of their Ministries.


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1.10 Relations with the Judiciary and Other GovernmentAgencies

As Members of Parliament, Ministers have responsibilities to their constituents.However, there are limitations on their ability to act on behalf of constituents orothers, including themselves, when dealing with certain government agencies.

The President expects Ministers and their staff not to intervene, or appear tointervene, on behalf of anyone, including constituents, with the Judiciary concerningany matter pending before the courts.

Ministers and their staff are also expected not to intervene, or appear to intervene,on behalf of anyone, including constituents, with judicial tribunals on any matterbefore them that requires a decision in their judicial capacity, unless otherwiseauthorized by law. Ministers are therefore responsible for ensuring that they and

their staff understand and respect the need for non-interference and an arms lengthrelationship with these organizations should be maintained.

While Ministers need to be in contact with the agencies within their own Ministries ona broad range of matters, governing statutes give some bodies such as StateCorporations a degree of independence from Ministrys direction. A Ministers degreeof control and responsibility on these organizations is defined in the Act thatestablishes them. They must also understand and respect their arms lengthrelationship with them.

In matters regarding another Ministers docket, Cabinet norms preclude a Minister

from speaking about or otherwise becoming involved in a colleagues Ministrywithout first gaining the colleagues approval. This does not preclude the Ministerfrom speaking directly to the Minister responsible. Nor does it prevent the Ministersstaff from raising the concerns of constituents either with the staff of the Minister orthrough channels in the departments or agencies that are specifically intended fordealing with matters of constituents.

There are situations when the office of a Minister can expect requests for assistancefrom other members of the Parliament on behalf of their constituents. When such anintervention is requested on a judicial matter, the office should indicate that it is notpossible by any Minister and suggests that the constituent deal directly with the

agency. However, Ministers and their staff may seek information that is available tothe public

1.11 State Corporations and Other Bodies

Ministers are responsible for non-departmental bodies such as State corporations,agencies, commissions, tribunals or boards. A Ministers degree of control andresponsibility for a non-departmental body is defined in the Act that establishes thatbody. While a Ministers relationship with a non-departmental body is at arms length,

the Minister must still provide the organization with general guidance on thegovernments objectives and expectations. Ministers need to know both the details oftheir responsibilities, as well as the limits of their powers, for those bodies.


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Permanent Secretaries can provide advice to Ministers on these issues, particularlyin the context of integrated Ministry management.

Though the minister should keep cordial relations with independent decision-makingtribunals falling under his/her ministrys mandate, he/she should never at any one-

time try to influence their decision-making. The heads of such bodies are appointedby the President on advice of the Permanent Secretary and minister in charge. Someof the bodies answer directly to the minister while others answer to parliament.However when heads of such bodies appear before the parliamentary committees,they do so under the principle of ministerial responsibility and neutrality of the publicservice.

1.12 Ministers Relations with the National Assembly

Clear Ministers accountability to Parliament is a fundamental principle and ensuresthat Kenyans have confidence in their government and that it is open, honest andtransparent. A parliament that makes real decisions requires Parliamentarians whohave and can use information as tools to promote the interests of the country and tohold the government to account for its decisions. The President expects Ministers toplace high priority on ensuring that Parliament and its committees are informed ofdepartmental policy priorities, spending plans, and management challenges.Ministers are expected to seek the views of fellow members and Parliamentarycommittees on plans and priorities, and to dedicate time to consulting and engagingtheir colleagues in Parliament in order to earn their support. These elements are keyin bringing the public will and the purpose of a government into a productive

engagement.

Parliament confers powers of State to Ministers on the condition that they, andthrough them the officials under their management and direction, are accountable toParliament for their actions. Parliament also reviews government spending as a keyelement of this accountability.

1.13 Ministers House Duties

The daily proceedings in Parliament are essential to the governments effectiveness.Consequently, the President expects Ministers to place a high priority on their Houseduties. These duties include-

Mandatory daily attendance of Ministers in the House at question time. Anyproposed absence from the country must be authorised by the President. When aMinister is absent, an acting Minister or an Assistant Minister answers on his/herbehalf.

Attendance at other specified times according to the mandatory schedule of Houseduties prepared by Leader of Government business in Parliament. Ministers arepersonally responsible for arranging replacements if they have to be absent and fornotifying the Chief Whip of the arrangements.


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Piloting their own legislation through the House and to appear before Parliamentarycommittees as required. In relation to debates in the House, standing orders alsorequire that members of parliament declare any pecuniary interest beforeparticipating in the consideration of any item of business. Occasionally, a minister

may find that he or she has a conflict concerning a bill, or part of a bill, for which sheor he has portfolio responsibility. Any issue of this sort must be discussed inadvance with the President, the leader of Government business in the house and theChief Whip.

Responding to private Members motions. Under the Standing Orders, all privateMembers motions are votable. The government determines its position on all PrivateMembers motions. If a motion specifically opposes government policy, Ministerswho are responsible for the policy should ensure that Members of Parliament areinformed about the governments position, and seek their support on the same.

Maintaining Committee relations; the government will look to the parliamentarycommittees to play an active role in policy and legislative issues, and ministersshould place high priority in developing good relationships with committee chairs andmembers and supporting the essential work of the committees.

Undertaking other House duties. The Leader of Government business in Parliamentassigns and coordinates other House duties to Ministers, such as attendance duringvoting, issuing Government statements and leading the governments response toOpposition party motions.

Ministers duties and relations with Parliament are very demanding and requiresignificant support, particularly in question period and committee work. They requirecareful daily and long-term coordination with the Chief whip and the Leader ofgovernment business in parliament.

On their accountability to Parliament, Ministers are required to answer Parliamentaryquestions concerning their ministries as clearly and as fully as possible. It is ofparamount importance for Ministers to give accurate and truthful information toParliament, and to correct any error at the earliest opportunity. Parliamentaryquestions cannot be directed to a former Minister concerning policies or transactionsin a Ministry he or she no longer holds. However, current Ministers must account to

the House for taking any corrective action required to address problems that mayhave occurred prior to their appointment.

Parliamentary accountability recognizes that only the person to whom responsibilityand authority are assigned can take action. Ministers cannot be accountable formatters over which they have no authority. The statutes governing many non-departmental bodies such as regulatory commissions or tribunals may assign onlylimited Ministerial responsibility for internal management and operations. In thesecases, Ministers accountability is limited. Where Ministers do not have directresponsibility for addressing issues raised by Parliament, they must neverthelessensure that the non-departmental body concerned does address those issues.


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1.14 Assistant Ministers

Section 19 of the constitution empowers the President to appoint Assistant Ministersfrom among members of the National Assembly to assist a Minister or to undertakespecific duties assigned by the President. While an Assistant Minister does not havea ministry independent of the minister, he or she is a member of the Government,participates in collective decision-making, and must uphold the confidentiality ofGovernment decisions.

Upon appointing an Assistant Minister, the President sets out his/her specific roles ina letter of appointment. The Minister then outlines roles in writing that are moredetailed, bearing in mind that he is responsible for responding to any broad directionon priorities conveyed by the President. An Assistant Minister may be assigned aDepartment to supervise under the direction of the minister. The Permanent

Secretary to ensure that the senior Staff of the respective Department gives theAssistant Minister the necessary cooperation and support. They may also be calledupon to answer policy questions during question period in the Ministers absence.Assistant Ministers have a particular responsibility in:

National Assembly business and questions

Ministry Public Relations

Party liaison and political aspects of Ministry business

1.15 Ministers and Assistant Ministers Travel Coordination

All proposed Minister and Assistant Ministers travel abroad is authorized by thePresident well in advance and in writing. Ministers are also expected to consult theLeader of the Government Business in Parliament and the Government Chief Whipand to ensure the availability of acting Ministers. When making use of governmentaircraft, Ministers should make every effort to ensure joint travel in the interests ofefficient use of government resources.

Ministers and Assistant Ministers should limit travels abroad, especially whileParliament is in session.

While travelling abroad on official or private matters, they must inform the Ministry ofForeign Affairs in advance to facilitate their security among other considerations. Onreturn, all goods acquired by ministers abroad are subject to normal customsrequirements and examination, and must be declared on arrival and relevant dutiespaid for personal goods.

1.16 Security

The Cabinet Office briefs Ministers on applicable security requirements, from time to

time. During their tenure of office and after, all Ministers and Assistant Ministers arebound by the Oath of Office, the Official Secrets Act as well as the Public Officer


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Ethics Act and must therefore maintain confidentiality at all times. In addition, theymust ensure that cabinet information is not released without Cabinet Office approval.Permanent Secretaries are accountable to their Ministers for the security ofdepartmental personnel, information, facilities and other assets. All individuals whowork in or for Ministers offices must be vetted and approved before appointment. In

addition, Ministers have been granted armed police security throughout. The officersare always in contact with the wider police network in case additional back up isnecessary. However, Ministers should not hesitate to inform their PermanentSecretaries if increased security is needed.

Ministers are required to notify their Permanent Secretaries immediately of anypotential compromise of Cabinet confidences. The Permanent Secretary, Secretaryto the Cabinet and Head of the Public Service can provide Ministers with furtherinformation on security matters.

1.17 Cabinet, Institutional and Personal Records

Private and public records of ministers must be filed separately for operationalefficiency and confidentiality while at the same time ensuring compliance to theapplicable laws.

1.18 Conflict of Interest

Ministers are bound by the Public Officers code of conduct with effect from their first

day of appointment. They are also subject to the Parliamentary Standing Ordersand the Public Officer Ethics Act 2003 in their capacity as Members of Parliament.The Speaker of the National Assembly is responsible for administering both codes,investigating allegations against Ministers and other senior officials involving conflictsof interest, applying compliance measures and briefing Ministers on theirresponsibilities under the codes. The Ministers should also try to control thebehaviour of their immediate families or relatives whose actions are likely to bringridicule or disrespect to the Government.

Ministers are accountable to the President for their adherence to the provisions ofthe Public Officers Ethics Act 2003, which inter alia stipulates that:

Ministers should declare their assets and liabilities annually

They must behave in a manner consistent with dignity and decorum.

Ministers are also held accountable by Parliament for their adherence to theprovisions of the Public Officer Ethics Act 2003 in their capacity as Members ofParliament.

1.19 Invitations

Ministers often receive invitations to participate in or endorse events, communityinitiatives or publications, to meet with people or to travel to various countries.


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Ministers must be aware that some invitations may come from individuals or groupswith dubious motives or backgrounds. The purpose for such invitation must be wellexplained and the Minister has to be cleared by the Government to attend. Anycomments he/she makes in his private capacity do not reflect the official position ofthe government.

Ministers are expected to exercise discretion at all times. They are responsible forensuring the bona fides of those with whom they have dealings. When there is anydoubt about accepting an invitation, inquiries should be directed to the PermanentSecretary, Secretary to The Cabinet and The Head of Public Service for advice. ThePermanent Secretary, Secretary to The Cabinet and The Head of Public Service willthen make inquiries, offer general advice to the Minister and arrange briefings asmay be necessary.


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CHAPTER TWO: PERMANENT SECRETARIES

2.1 Permanent Secretary, Secretary to the Cabinet and Head ofthe Public Service

The Permanent Secretary, Secretary to the Cabinet and Head of the Public Serviceis a non-partisan public servant appointed by the President under section 22 (2) ofthe constitution. He is the Presidents Permanent Secretary and is responsible forthe following other functions:

Organisation and Co-ordination of Government Business

Secretary to the Cabinet

Organisation of the Cabinet Office Communication of Executive directives

Facilitation of appointments for:

Ministers and Assistant Ministers Permanent Secretaries Judges Ambassadors and High Commissioners Chairpersons and Directors of Statutory Boards

Facilitation of establishment and abolition of Public Offices Facilitation of establishment of Presidential Commissions of Enquiry and their

operation

Declaration of Public Holidays

Travel clearance for senior public officers

Public Service performance and accountability

All Permanent Secretaries report to the Head of Public Service and have a duty tobrief him on all staffing, operational problems and major policy issues in theirministries.

2.2 Roles of Permanent Secretaries

Permanent Secretaries are professional, non-partisan public servants. They areappointed by the President in accordance with section 22 (I) of the Constitution.Their role is to advice Ministers and provide support needed for their day-to-daymanagement of the ministries. However, Permanent Secretaries do not exercisedirect authority over statutory bodies within the Ministry. Permanent Secretaries aschief executives of the ministry are required to manage a complex set of multipleaccountabilities. These arise out of various powers, authorities and responsibilities

attached to the position. They have two main roles mainly those of being Accountingand Authorized officers


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2.2.1 Permanent Secretary as an Accounting Officer.

The Permanent Secretary to the Treasury personally appoints PermanentSecretaries by letter to be responsible for the financial management of the Ministrysvotes. This therefore makes them personally accountable and responsible toparliament on the use of the same.

When authority granted by Parliament is delegated to the Accounting Officer, theremust be adequate accountability within the Ministry /Department before the overallaccountability to Parliament is rendered. The Accounting Officer therefore has thepower of summoning any officer to whom he has delegated authority to personallyaccount for disbursement/commitment of Public Funds in case wastage and misuseis suspected.

As an accounting officer, the permanent Secretary is personally expected to-

Personally sign the Appropriation Account, other accounts and AnnualFinancial statements. This makes him/her responsible for their correctnessand accountability.

Ensure custody of funds due to a ministry/department and for proper conductof financial business.

Ensure accuracy in Preparation of both recurrent and development Estimates

and adhering to set ceilings. Ensure that Funds entrusted to him are applied only for voted purposes and

as per the laid down rules and regulations.

Ensure that all payments made by the Ministry/Department are within theceiling of the Vote and are approved by the specific statutory authority wherenecessary.

Ensure that excess expenditure is not incurred above the total sumapproved by Parliament on Vote, Head and Items. All known amountsdue as Appropriations in Aid (AIA) and Extra Exchequer receiptsconnected with the votes under his control should be promptly collectedand accounted for in full.

Ensure that Public Expenditures are incurred in respect of services for whichParliamentary approval was granted and then only within the specified limits.

Ensure that all revenues due to the Government are collected and properlyaccounted for in accordance with laid down statutes, rules, and Regulations.

Manage, control and ensure that policies are carried out efficiently withminimal wastage of public funds.

Ensure that there are adequate arrangements for custody and safeguarding ofpublic property and that proper systems are followed for acquisition anddisposal thereof.

Ensure that proper financial and accounting records are maintained which are

capable of providing reliable information and basis for preparation andsubmission of periodic Statements and Accounts.


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Provide strategy for linking of resources to objectives and their effectiveutilization and achievement of predetermined goals after critical PolicyAnalysis.

Arrange activities of his/her Ministry/Department in a coordinated manner tofacilitate expedient execution of the activities/services and be capable of

controlling and adhering to objectives of Financial Administration. He/sheshould not only guard against losses but also against irregularities andwastage. He/she should also help in identifying the weak points in thesystems, which can be sorted out promptly to remedy the situation and hencesafeguard public funds.

2.2.2 Permanent Secretary as Authorised Officer

The Permanent Secretaries, being the chief executive officers of the ministry areexpected to manage staff working under them to attain the goals of the ministry.They do this through powers delegated to them by the Public Service Commissionvide CAP 185 (laws of Kenya). These powers are applied in management, hiring,and terminations of services of public servants.

In the management of staff in Job Groups A to L, including chiefs and Assistantchiefs, the Permanent Secretaries have the powers to-

Appointment (including acting appointment ), promote and transfer,

Confirm in appointment of any public officer on probation, or to extend theprobationary period of any such public officer,

Terminate the probationary appointment of any such public officer under

these Regulations and any other Regulation which may be in force, Retire compulsorily any public officer in accordance with regulation 18 upon

attaining mandatory retirement age as under the Pension Legislation and,

Retire on the grounds of ill health any public officer in accordance withregulation 19.

The exercise of these powers can however be challenged by any aggrieved publicservant by appealing to the Public Service Commission. Such an appeal musthowever pass through the respective Permanent Secretary.

The Public Service Commission has further empowered Permanent Secretaries to:

Promote public Officers in Job Groups A-L

Confirm appointments in all grades and

To undertake disciplinary measures on public servants on Job Group A-L

The Permanent Secretaries are further empowered to appoint public officers ontemporary terms for periods not exceeding 12 months to fill a vacancy in a ministry.The Permanent Secretary can only however extend such an appointment uponconsulting the Public Service Commission and upon provision of convincing reasons.The Permanent Secretaries also have power to terminate public officers working on

contracts or temporary employment.


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2.3 Financial Conflict between a Permanent Secretary and hisMinister

The Minister and the Permanent Secretary may at times disagree on an importantmatter affecting the financial administration of the ministry. In a case where aminister insists on implementing a policy in a manner seen as wasteful andextravagant by the Permanent Secretary, while still noting that an accounting officerhas a duty to obey ministers instructions, he/she must ensure that the ministry isadministered economically and efficiently. The Accounting Officer should nothowever hesitate to register his/ her objections on any course of action he sheregards as inconsistent with duty. The Accounting Officer should also record suchan objection, which he may find difficulty in defending as a measure of prudentadministration before the Public Accounts Committee. Having done that, the

Accounting Officer must then accept the course of action taken by the minister anddefend the action taken by citing the policy ruling given by the minister.

In case the matter of the Accounting Officers objection involves his personal liabilityon an issue of regularity or propriety, the accounting officer should both register theobjection in writing and grounds for it but also request written instruction from theminister authorizing the action and over ruling the Accounting Officers advice.Finally, after taking such an action, he/she should inform the Treasury of thecircumstances and then communicate the papers to the Controller and Auditor-General. If these procedures are followed faithfully, then the Public AccountsCommittee may consider absolving him/her of any personal blame for the loss or

misappropriation.

The departmental heads reports to the Minister through the Permanent Secretary ina clear chain of command. The President appoints Permanent Secretaries, whereasthe Public Service Commission appoints Deputy Secretaries, Heads of Departmentsand other officers. The accountability of departmental staff is to the Minister throughthe Permanent Secretary, but the Minister is accountable to the National Assemblyand the President.

Public officials must work within the laws of Kenya, and maintain political neutralitywhile in the Public Service. This ensures their continuing ability to provide

professional, candid and frank advice. In no circumstances should departmentalofficials be asked to participate in partisan political activities. Public Officer EthicsAct, 2003 stipulates that all public officials are responsible for preserving publicconfidence in the integrity of management and operations within their departments.

2.3.1 Conflict between a Permanent Secretary and his/herMinister on matters relating to Staff Management

On Matters of Staff management, the ministers should adhere to the rules governing

personnel matters in their ministries. The responsibilities of hiring, promotion anddiscipline rest with the Public Service Commission.


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The Public Service Commission has partly delegated some of these responsibilitiesto the Permanent Secretaries as Authorised Officers.

2.4 Financial and Resource Management

Both statutes and Treasury circulars guide the use of public funds as spelt out in theExchequer and Audit Act. They:-

Spell out Control and Management of Public finances (i.e. Management ofpublic finances, Powers of Treasury, Control of expenditure and revenue,Bank Accounts)

Set out the duties and powers of the Controller and Auditor General

Spell out procedure for the Collection, issue, and payment of public moneys(i.e. the exchequer account, Consolidated fund, Bank returns, granting ofcredits on exchequer account, issue from the exchequer account to be paid

into the bank account, overdraft on exchequer account, issue from theConsolidated fund, investment of moneys in consolidated fund).

The Audit of Public Accounts and the Protection of Public property (i.e. annualaccounts, reports on accounts, notification of irregularities to Treasury, powerto dispense with examination of certain accounts.

Spell out procedures for Audit of Accounts of local authorities, submission ofaccounts, powers of Controller and Auditor General and other auditors, reportof Controller and Auditor General contracting policies and procedures.

Outline controls of finances of statutory boards, commissions and bodies, (i.e.Appointment and power of the Controller and Auditor- General, expenditureauthorization, and accounting, submission of accounts of State Corporations

In the execution of this role, the Permanent Secretaries should ensure that allexpenditures in his Ministry are properly and prudently managed and are related tothe conduct of official business.

The Permanent Secretary /Accounting Officer is responsible for preparation of theAppropriation Accounts for the Ministry within four months after the closure of thefinancial year in respect of the votes and moneys allocated. The appropriationaccount shall show the services for which the money expended were voted, thesums actually expended on each service and the state of each vote compared withappropriation; and each such account shall contain a statement explaining any

variation between the expenditure and the sums voted, and shall contain such otherinformation and be in such form as the Treasury may direct, and the statement, aswell as the account, shall be signed by the Accounting Officer.


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CHAPTER THREE: THE ROLE OF PARLIAMENT

3.1 Legislative Programme

The content of the governments legislative programme is ultimately theresponsibility of the President, assisted by the cabinet. The Cabinet determines themain thrusts of the programme. The Leader of the Government Business in theHouse coordinates the process of translating the Cabinets policy decisions into billsto be placed before the National Assembly.

The first stage in this process is preparing of a draft bill by the ministry sponsoring

the proposed bill to the Cabinet. Before submission to the cabinet, the ministryconcerned is responsible for discussing with the Treasury the financial implicationsof the draft bill, other ministries concerned and indeed all other stakeholders. Thedraft should be in a simple language clearly stating the objectives, purpose,background and other existing legislation affecting the subject. After Cabinet hasapproved a Ministrys draft bill, the bill is forwarded to the Attorney General forfinalisation. The pace of presenting drafted bills to parliament is set by the leader ofGovernment business in the House in close consultation with ministers sponsoringthem. The Leader of the Government Business is supported in this regard by his orher own Ministry staff, the Cabinet Office, the Deputy House Leader and theGovernment Chief Whip.

Parliament approves the Governments annual estimates and authorisesappropriation of funds under section 99(1) of the Constitution of Kenya, which states:Subject to subsection (2), all revenue or other monies raised or received for thepurposes of the Government of Kenya shall be paid into and form a Consolidatedfund from which no monies shall be withdrawn except as may be authorised by theconstitution or by an Act of Parliament (including the Appropriation Act) or by Vote onaccount passed by the National Assembly under section 101.

Expenditure of public funds before appropriation is provided for under section 101 ofthe Constitution of Kenya, which states:

If the appropriation Act for a financial year has not come intooperation, by the beginning of that financial year, the NationalAssembly may, by vote on account authorise the withdrawalfrom the consolidated fund of moneys (not exceeding in totalone-half of the sums included in the estimates of expenditurefor that year that have been laid before the assembly) forpurposes of meeting expenditure necessary to carry on theservices of the Government of Kenya during that year untilsuch a time as the appropriation Act comes into operations,

but any moneys so withdrawn shall be included, underseparate votes for the several services in respect of whichthey were withdrawn, in the Appropriation Act


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The Exchequer and Audit Act sets out the principles underlying the sovereignty ofParliament in the raising and spending of public money. Revenue can only be raisedand spent or borrowed by the government with the authority of Parliament. Regular,ongoing Parliament spending reviews are part of ensuring that taxpayer monies are

aligned with the priorities set by Kenyans, and that the governments management ofthe public funds is credible and avoids waste. Ministers must be prepared to respondto questions on spending for which they are responsible.

3.2 Speaker of the National Assembly

The Speaker is elected from among members of the National Assembly or any otherqualified person. He is an ex- officio member of the house. His prime duty is toenforce the rules of the house to ensure order in the conduct of parliamentarybusiness. He is the spokesperson of the House. The Speaker is required to beauthoritative and impartial in the conduct and control of the business and inapplication of rules of practise and procedure. He certifies all bills sent to thePresident for assent.

3.3 Clerk of the National Assembly

The Clerk is the Accounting Officer of the National Assembly and is responsible forthe application of the correct procedure in the process of legislation. The Clerk also

advises on the interpretation of standing orders, privileges, rights and immunities ofParliament for the good order and conduct of the honourable members. He isresponsible for compiling the journals of the House and acts as a custodian of allrecords and documents laid before Parliament. He endorses all bills sent forPresidential assent.

3.4 Parliamentary Clerks

Parliamentary Clerks form a fundamental link between Ministers and The NationalAssembly. In committees, they help in sharing departmental information and workwith committee chairpersons to plan appearances of Ministers and Governmentofficials in order to ensure a productive dialogue.

3.5 Leader of Government Business- House Duties

The Leader of Government Business in Parliament is responsible for managing thegovernments agenda in Parliament, and Ministers are expected to work with him/her on legislation and private Members bills for which they are responsible. In

carrying out these duties, the Leader of Government business in Parliament issupported by the clerk of the National Assembly and the Chief whip. Ministers are


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responsible for ensuring that their legislation is piloted through Parliament and thatquestions related to their Ministries are answered.

3.6 Parliamentary Committees and the Role of DepartmentalOfficials

Appearances before House and Parliamentary committees by Ministers and theirofficials are an essential part of informing Parliament, enabling Parliament torepresent the views of their constituents in the development of policy and legislationand to hold the government to account for its management and policies. Ministersshould promote an ongoing dialogue with Parliamentary committees on theirdepartments policy priorities, legislative and spending issues, and managementchallenges. Ministers, supported by the public service, should appear regularly

before their respective Parliamentary committees to seek the committees input topolicy and spending priorities, and to discuss departmental performance and results.Ministers are expected to provide, consistent with Treasury guidelines, informativeand balanced report to Parliament, most importantly the Estimates, the Report onplans and priorities, and Departmental Performance Reports. Ministers and theirofficials must cooperate with the committees in their work and seek the views ofParliamentary committees on their plans and priorities.

The principles of accountability and responsibility guide Ministers and their officialsappearing before Parliamentary committees. Ministers are responsible for providinganswers to Parliament on questions regarding the governments policies,

programmes and activities, and for providing as much information as possible aboutthe use of powers assigned to them or delegated by them to others.

Ministers are also responsible for deciding which questions they should answerpersonally and which questions their Assistant Ministers may answer on their behalf.Officials can assist Ministers by factually answering questions at Parliamentarycommittees, but they are explaining rather than defending or debating policies. Whenappearing before this committee, officials maintain the traditional impartiality of thePublic Service. The authoritative political presence of either the Minister or his or herpolitical representative is required if politically controversial matters are likely toarise.

Ministers should ensure that appearances by their officials before Parliamentcommittees are fully consistent with the Ministry responsibility assigned by thePresident. Public servants are ultimately accountable to Ministers and not directly toParliament. Consequently, departmental officials do not appear before committeeswithout clear guidance from their Minister.

While appearing on behalf of their Minister before committees, departmental officialsare often able to provide more detailed information on departmental plans andperformance than Ministers can. The Permanent Secretary and other officials mustbe prepared to describe in detail the plans, activities and performance of thedepartment in areas such as financial management, programme and servicedelivery, and human resources management.


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Public officials also have a duty and specific legal responsibility to hold in confidenceinformation that may have come into their possession in the course of their duties.Therefore, when appearing before Parliamentary committees, they are bound bythese legal obligations, as well as an obligation to the Minister and to the

government, not to disclose information that is confidential for reasons of nationalsecurity or privacy, or because it consists of advice to Ministers as provided for in theOfficial Secrets Act. In practice, officials should endeavour to work with Members ofParliament, in cooperation with Ministers and their offices, to find ways to respond tolegitimate requests for information from Members of Parliament, within the limitationsplaced on them. In the context of a committee, releasing information that is not in thepublic domain can only be made available on the specific authorization of theMinister, and within the context of the Official Secrets Act.

Through their own initiative or in response to a request from a Parliamentary caucus,Ministers can also inform Parliament by directing departmental officials to provide

factual briefings. Briefings organized for one group can be made available to otherstakeholders and, accordingly, House leaders or Leaders of each party are keptinformed of such briefings.


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CHAPTER FOUR: KEY DEPARTMENTS IN GOVERNMENT

OPERATIONS AND MANAGEMENT

4.1 Background

This Chapter provides information on the roles of central agencies in themanagement of the Government. These departments are critical and include theAttorney General, the Cabinet Office, the Public Service Commission, The Treasury,State House, Public Communications Office, and the Directorate of PersonnelManagement.

4.2 The Attorney General

The constitution, under section 26, makes a special provision for the office of theAttorney - General in the public office and Section 109 empower the President toappoint the Attorney General. The Attorney General is not responsible to a Ministerin the exercise of his/her professional Judgement or of his statutory powers. Further,the Attorney General is not subject to the direction or control of any other authorityand indeed enjoys security of tenure.

He is an ex-officio Member of Parliament and a member of the Cabinet, is thePrincipal legal adviser to the Government and his opinion should be sought in all

matters, which have legal, legislative or constitutional aspects.

The Attorney General is responsible for drafting bills emanating from ministries afterreceiving Cabinet approval. The bills are then presented to Parliament fordeliberation.

The Attorney-General is the public prosecutor of Kenya and is therefore solelyresponsible for the conduct of all public criminal prosecutions in Kenya. TheAttorney-General is also responsible for the institution of criminal prosecutions andfor their termination before verdict under certain circumstances by the entry of anolle prosequi. While the Attorney-General may wish to inform himself / herself of

all relevant considerations including those affecting public policy, before decidingwhether or not to commence or terminate any particular prosecution, by consultingthe President or any Minister, the responsibility for the eventual decision remainsexclusively his/hers and he/she cannot be instructed or directed whether or not toprosecute in any particular case. In order to ensure that his/her right to decidewhether to launch any prosecution is not inhibited in any way, the Attorney- Generalis empowered to require the Commissioner of Police to investigate any matter, whichrelates to any offence.

A request for legal advice should be addressed to the Attorney-General under thesignature of the Minister or the Permanent Secretary to the Ministry concerned. The

request should summarize the issue and state clearly the specific points on whichadvice is required. All relevant papers should be attached and referenced.


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Permanent Secretaries are required to seek the advice of the Attorney Generalbefore they can commit the government in any contract to make sure that it complieswith the provision of the Kenyan Law and policy. The Attorney General must beinvolved in all agreements for financing and loans. The Attorney General mustalways be involved in drafting of treaties, conventions and all other manner of

international instruments to ensure, firstly, the proper legal express of nationalinterest in such documents and secondly that obligations emanating from suchinternational legal instruments area capable of performance in the Republic ofKenya and in accordance with its laws. He must also be involved in drafting treaties,conventions and other agreements.

The Attorney General also undertakes to represent government in all cases broughtagainst it. Permanent Secretaries are required to seek a no objection letter from theAttorney General before they can engage the services of a private Lawyer to act onbehalf of the government.

4.3 Cabinet Office

4.3.1 Cabinet Office Headquarters

The Cabinet Office provides the President with public service support and directlyassists the President in performing all of his or her duties and responsibilities ashead of state and government. It is also the Cabinet Secretariat. Through ongoingconsultation with departments and agencies, the Cabinet Office provides thePresident with comprehensive information and analysis on contemplated policies

and priorities. Specifically, it provides information on organization of the governmentand its relations with Parliament and the judiciary. It further provides information onappointment of holders of senior offices, overall spending programme of thegovernment, functioning of the cabinet decision-making system, development ofmajor policies, management of intergovernmental relations and other specific issues.The Cabinet Office also provides the necessary support to the Vice President and tothe other Ministers.

The Cabinet Office is a government secretariat. It is politically impartial andcoordinates operations at the centre of government. It is the custodian of records ofpresent and past regimes and therefore provides continuity during regime change

and assists in the management of a smooth transition.

4.3.2 Public Communications Office

In promoting good governance, the government is expected to provide relevantinformation to the public regularly. The government has therefore created the officeof the Public Communications Secretary, under Cabinet Office, to be discharging thismandate. The office will not however divulge personal information held by theGovernment or government institutions unless ordered to do so through a ruling ofthe High Court of Kenya.

Communicating with the public is an important responsibility of the government.Communications must be timely and clear. All government communications must


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therefore be coordinated to ensure they are consistent with overall governmentobjectives and decisions.

The implications of an announcement are among the issues considered by theCabinet when it decides on a policy or the announcement of government action

through the Public Communications Secretary.

The President expects Ministers to consult well with other colleagues, affectedstakeholders, their Permanent Secretaries and the Public Communications Secretaryon all impending public announcements.

4.4 State House

State House consists of the Presidents personal and Public service staff under thePrivate Secretary/Comptroller of State House. The Office serves the President and isfully accountable to him or her.

State House supports the President in exercising his or her duties as head of Stateand government, leader of a political party and Member of Parliament. The personalstaff in State House provides advice on policy development and appointments,discuss Parliament proceedings with him or her, and facilitate the Presidentsrelations with Ministers, the MPs and the Government as a whole.

In addition, State House schedules the diary, organizes his or her public statements,relations with the media and handles his or her correspondence.

In general, State House plays an important role in enabling the President to guidethe political strategy of the government and is the central point of communication andcoordination with Ministers, Civil Service and Members of Parliament. It also worksclosely with the Cabinet Office to provide advice and support from differentperspectives on the issues of daily concern to the President.

4.5 The Ministry Of Finance

4.5.1 The Treasury

The Treasury means the Minister for the time being responsible for Finance andsuch other officer or officers of his Ministry as may deputize him to exercise andperform on behalf of the Treasury any powers or duty conferred or imposed on thetreasury by any written law. The Minister of Finance delegates to the PermanentSecretary to the Treasury to exercise and perform on behalf of the Treasury thepowers and duties conferred and imposed on the Treasury by the Exchequer andAudit Act (Cap.412).

The responsibility for management, supervision, control and direction of all mattersrelated to the financial affairs of Kenya which are not assigned to any other Act, are,


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vide section 3 of the Exchequer and Audit Act, vested in the Minister responsible forfinance. Under various specific Acts of Parliament the Minister is further chargedwith the responsibility of regulating financial control and management to ensure duecompliance with the functions set out in those Acts. The Minister for Financedischarges his responsibilities through formulation and promulgation of regulations

under powers given to him vide section 34 (1) of the Exchequer and Audit Act(Cap.412).

4.5.2 Directorate of Public Procurement

The Directorate of public procurement has been created to establish and overseeproper procedures for procure of goods and services and the disposal ofunserviceable, obsolete or surplus stores and equipment. The directorate isresponsible for the following key functions:

To promote maximum economy and efficiency procurement and disposal.

To promote competition and treatment of competitors To promote integrity and fairness in procurement and disposal procedures

To promote transparency and accountability in procurement process

To promote public confidence in procurement procedures.

Under the Exchequer and Audit Act (regulation 2001), the Public Procurementreview board was created to arbitrate all appeals that may arise in procurement anddisposal.

4.6 The Public Service Commission (PSC)

Section 106 of the constitution of Kenya establishes the Public Service Commissionwhose members the President appoints. The commission is bestowed with thefollowing responsibilities:-

Appointment of persons to hold or to act in offices in the Public Service and inthe service of the Local Authorities

The power to exercise disciplinary control over persons holding or acting inthose offices

The power to remove those persons from office

The power to delegate any of its powers to any officer in the public service

However, section 107(4) of the Constitution, precludes the Public ServiceCommission from appointing certain key officers whose appointment is theprerogative of the President. The Chairman and all other Commissioners enjoysecurity of tenure.


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4.7 Directorate of Personnel Management (DPM)

The role of DPM is to provide specialized services and advice to the GovernmentMinistries, Departments, Local Authorities and Public enterprises on human resourcemanagement and development. The Department has the following key functions:Formulating Human resource management and development policies, rules andregulations in the public sector

Advising government on organizational structures, staff complementsestablishment and career guidelines.

Training and capacity building in the public service

Reviewing and updating the terms and conditions of service for publicservants

Initiating and coordinating human resource reforms in the public sector.

Harmonizing and improving terms and conditions of employment for the public

sector.


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ANNEXES

Annex A

A.1 Cabinet Decision Making

The Cabinet is the ultimate decision-making forum where Ministers reach aconsensus on issues. Once a consensus is reached, Ministers must fulfil theircollective responsibility to Parliament and to the Nation.

Given that civil servants play an important role in the development of policy andconsultations supporting it, they may attend Cabinet meetings upon invitation by the

President or Cabinet committee meetings on the invitation of the chair. They canalso enhance the decision making process through stakeholders consultations andbriefings to the Ministers.

Where a statutory decision or action would affect the collective interest of thegovernment, the minister should not take the relevant action or decision withoutconsulting the other colleagues at an early stage and submitting a paper to theCabinet (Via the appropriate Cabinet Committee). The paper should include theministers recommended action or decision, and preferably analysis of other optionsthat commend themselves to the Cabinet. This will ensure that the decisionultimately taken by the minister, via the collective process, is justifiable in terms ofthe statutory decision making process that the minister has undertaken, and willreduce the risk of judicial review.

Ministers must use their judgement in deciding which matters concerning theexercise of their individual statutory powers would affect the collective interest of thegovernment and should therefore be brought to Cabinet. The following matters mustbe submitted to Cabinet:: significant policy issues; proposal that will affectgovernments financial position or important financial commitments; mattersconcerning the machinery of the government, proposals involving new legislation orregulations; government response to select committee recommendations; matters

concerning portfolio interests of a number of ministries; controversial matters; all butminor public appointments, international treaties and agreements and the release ofpublic discussion documents or reports of a substantive nature affecting governmentpolicy or government agencies.

Once Cabinet makes a decision, ministers must support it regardless of theirpersonal views and whether or not they were in the meeting concerned. If ministersare unsure about whether to take an issue concerning the exercise of their statutorypower or functions to Cabinet, they should seek guidance from the President or fromthe Secretary to the Cabinet.


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B.2 Basic Rules for Cabinet Business

A number of basic ground rules for the conduct of Cabinet business are essential tomaintain Cabinet Solidarity and enhance its practical effectiveness.

The President organizes Cabinet and Cabinet business and chooses committeechairpersons to act on his or her behalf. The Cabinet Office is the secretariat andmanages the Cabinet decision making process on behalf of the President.

The government operates through a process of compromise and consensus building,which culminates in Cabinet decisions. The Cabinet and its committees do not voteon issues before them, rather, the President (or committee chairperson) call for theconsensus after Ministers have expressed their views. The Cabinet Officesubsequently records and communicates the decisions.

Consultation among the Ministers and departments involved must precede thesubmission of a proposal to the Cabinet by the responsible Minister or Ministers.Ministry discussions in the Cabinet or Cabinet committee focus on the decisionsrequired and provide Ministers with an opportunity to participate in and influence thatdecision.

Ministers have the right to seek their colleagues consideration of proposals forgovernment action in their area of responsibility. This is, of course, subject to theagenda set by the President for government priorities. The committee chairpersonsacting on the Presidents behalf set cabinet committee agendas.

Official secrets must be appropriately safeguarded from unauthorized disclosure orother compromise. The Cabinets collective decision-making process has beentraditionally protected by the rule of secrecy, which enhances Cabinet solidarity andcollective Ministry responsibility. Secrecy ensures that Ministers can frankly expresstheir views before a final decision is made. The President expects Ministers toannounce policies only after Cabinet decisions are taken, and in consultation withState House. Civil Servants involved in the decision-making process are alsoexpected to preserve the secrecy of Cabinet deliberations.

Cabinet business is extensive, and Cabinet consensus at times is difficult to achieve.Given the limited time available to Ministers and given the importance of clear

decisions to government operations, Cabinet business must be conducted efficientlyand according to accepted ground rules that are fully understood and respected.Cabinet discussions should not be used to air introductory or preliminary discussionsof issues. Permanent Secretaries are expected to ensure that other affecteddepartments are adequately consulted in advance and that coordination acrossMinistries is pursued so that other Ministers are briefed for Cabinet discussion andgovernment decisions are coherent and aligned with overall policies. Whendepartments directly involved differ on a matter, the dispute should not be referred tothe Cabinet until all other means of resolving it have been exhausted.


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B.2.1 The Policy and Fiscal Frameworks

Cabinet decision-making is steered by certain key statements of government policyand priorities as well as by electoral manifestos. The President, during the officialopening of each parliamentary session sets the agenda for the parliamentary

session. This agenda is normally guided by the existing policies. For example, theMinister for Finance presents the Governments annual budget forming the fiscalframework for the period as agreed by the cabinet. The Minister also tables thefinancial estimates for the year.

B.2.2 The Process of Cabinet decision-making

The Cabinet process begins when a Minister in the form of a Cabinet memo raisesan issue. The Cabinet Office normally circulates the supporting documents to allMinisters before the issue is discussed at the appropriate Cabinet committee.Ministers can also update their colleagues on the progress of certain key initiatives

being developed or implemented in their departments.

The Cabinet committees report is subject to approval by the entire Cabinet. Recordsof final decisions are circulated to all Ministers and their Permanent Secretaries foraction under Ministers individual authority. Policy announcements are made after aCabinet decision and after the Treasurys approval of any resources required toimplement the decision.

B.3. Cabinet and its Committees

Cabinet committees are an extension of the Cabinet itself. The President establishesboth standing and ad hoc (or special purpose) committees, chooses theirmembership, prescribes their procedures and changes them as need arises. ThePermanent Secretary, Secretary to The Cabinet and Head of The Public Serviceprovides Ministers with information on the Presidents decisions regarding thestructure and operations of Cabinet committees.

Currently, most collective deliberations take place in Cabinet Committees.Committee chairpersons act for the President with his or her authority, includingsetting the committee agenda. For the most part, the appropriate committee, subject

to confirmation by the Cabinet, takes decisions. This system settles as manyquestions as possible at the committee level in order to lessen the workload of theCabinet and to allow it to concentrate on priority issues and broader nationalconcerns.

Ministers, including Assistant Ministers, may be invited by the committee chair toattend any meeting of a Cabinet committee, whether or not they are a member of thecommittee. Civil Servants may attend meetings of the Cabinet on the Presidentsinvitation, or a Cabinet committee meeting on the invitation of the chair. ThePresident may make other exceptions to these conventions. The Presidentdesignates certain Ministers as members of each committee; they are expected to

attend meetings regularly. If Ministers are not able to attend a meeting, they shouldinform the Chair of their views on agenda well in advance and in writing.


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Meetings are conducted as informally as possible in both English and Kiswahili. MostCabinet committees meet on a regular schedule. This allows for effective planningand ensures that meetings and decisions can proceed immediately. The CabinetSecretariat provides the Cabinet and its committees the with the support required toprepare for the meetings including circulating agendas, distributing documents,

providing briefs to the chairperson of each committee on agenda items and recordingCabinet minutes and decisions. Cabinet Office is also responsible for sendingCabinet minute extracts to all concerned ministries for implementation and monitorsthe implementation of decisions.

B.4. Legal Notices

Some actions of the executive require a more formal process. Legal Notices arelegal instruments made by the President or a minister pursuant to statutory authority.The responsible Ministers forward recommendations to the President .They takelegal effect only when signed by the President, relevant Minister or the AttorneyGeneral.

B.5. Financial Procedures

According to the Constitution, monies can be spent or borrowed by the governmentonly with the authority of Parliament. A Finance bill, for the raising or spending ofrevenue, must originate in Parliament, as the House is the custodian of the publicrevenue. The Constitution of Kenya requires Finance bills to be recommended to the

House by the Minister of Finance. This ensures legislatures control over revenueraising and spending initiatives before any money can be withdrawn from theconsolidated fund and only acquire power of law when the President signs thegeneral warrant.

Parliament exercises its authority over government financial administration throughinstruments such as the Appropriations Act, Supplementary appropriations Act andthe printed estimates and the Public Accounts Committee .The parliament togetherwith its agent namely the Controller and Auditor general and the Public AccountsCommittee annually review the spending of public funds on behalf of the house.

Annex C

C.1 Appointments

Presidential appointments are made to a wide range of positions, from PermanentSecretaries and Ambassadors to Chief Executives, Directors of State Corporationsamong others. Many of these positions are very demanding, requiring extensive

work and difficult decisions. It is essential for appointees to be well qualified, andsenior government appointments must be made through a process that ensuresbroad and open consideration of proposed candidates.


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By legislation or requirement under Standing Orders of Parliament, someappointments are subject to Parliamentary review and approval.

While making public appointments the President considers the following:

Representational criteria based on gender, equity, expertise and regionalconsiderations among others.

Appointees personal integrity.

Appointments are given legal effect by the Presidents signature.

By legislation or some appointments are subject to Parliamentary review andapproval.

Annex D

D.1 Cabinet, Institutional and Personal Records.

Cabinet papers belong to the Government and are formal records as designated bythe Cabinet office. They include Memoranda to Cabinet (MCs), Cabinet CommitteeReports (CRs), records of decisions (RDs), agendas, aide-memoire, and documentsprepared for Ad Hoc Cabinet Committees or Reference Groups of Ministers.

The efficient operation of the Cabinet and the necessary confidentiality of Ministrydiscussions partly depend, on the proper handling of Cabinet memos. Ministers mustensure that Cabinet memos provided to them are always safeguarded in accordancewith the security requirements set by the Cabinet office. Civil Servants must alsorespect this protocol when they are given access to such documents. Ministers mustassign members of their staff with specific responsibility for controlling the flow andensuring the security of these documents. When a Cabinet item has been dealt with,the associated Cabinet memos must be returned to the Cabinet office without fail.

When a Minister leaves office, Cabinet memos must be returned to the Cabinet

secretariat while institutional records must be left with the departments. Ministersmay however remove their political papers but for the sake of sensitive documents,storage facilities offered by the secret registries should be used. When a change ofgovernment occurs, the outgoing President traditionally leaves the Cabinet recordsof his/her government in the custody of the Permanent Secretary, Secretary to theCabinet and Head of the Public Service. The Permanent Secretary, Secretary to theCabinet and Head of the Public Service plays a central role in administering theaccess to Cabinet papers.

Former Ministers are bound for life to respect their oath of office including observingOfficial Secrets Act. They must also honour their commitments to other Ministers andcolleagues. When talking or writing about their experience in government, formerMinisters must consult their former departments to ensure that they do not disclose


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matters that remain confidential. Any questions should be addressed to thePermanent Secretary, Secretary to the Cabinet and Head of the Public Service.

Annex E

E.1 Basic Principle on quasi-judicial tribunals

Ministers shall not intervene, or appear to intervene, on behalf of any person orentity, with national quasi-judicial tribunals.

E.2 Dealings with Quasi-Judicial Tribunals within the Ministry

Ministers (including Assistant Ministers) need to be in contact with agencies in theirMinistry on a broad range of administrative, policy and regulatory matters whenauthorized to do so by legislation. For instance, the Minister may communicate withthe Chair of a tribunal on its budget.

Ministers and their Permanent Secretaries should work with the agencies in theirMinistry to clarify mutually agreed limits on the information, which may flow to andfrom each agency and the appropriate procedures for communication.

The Ministers office can expect requests for assistance from other Ministers on

behalf of their constituents. Where such an intervention with an agency is notappropriate because the requests concerns a quasi-judicial case, the Ministersoffice should indicate that an intervention is not possible by any Minister and suggestthat the constituent deal directly with that agency.

E.3 Dealings with Quasi-judicial Tribunals on Behalf ofConstituents

There are limitations on the ability of a Minister to act on behalf of constituents as faras quasi-judicial bodies are concerned. Ministers and their staff cannot intervene onbehalf of any person or entity with a national or sectoral quasi-judicial agency on anymatter before it that requires a decision in its quasi-judicial capacity.Ideally and for the sake of harmonious management of the Government, a Ministershould not speak about or otherwise become involved in a colleagues Ministrywithout first consulting him and gaining his approval.


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Annex F Dealings with State Corporations

.The Minister responsible for a state corporation must deal with it on a variety ofmatters. The Minister, for example, is responsible for determining the broad

orientations of the corporation including approving its budget.

However, the Minister does not become involved in day-to-day operations of a statecorporation nor does his or her staff. Because of the wide range of activities carriedout by individual State Corporations, the appropriate role of the Minister must bedetermined on a case-by-case basis.

The following guidelines will assist Ministers in fulfilling their representative duties,while preserving the managerial autonomy of State Corporations within their Ministry.No Minister should personally promote the private interests of any individual,corporation or non-governmental organization, including a constituent, with any state

corporation.

It is always appropriate for a Minister to raise the concerns of a constituent directlywith the Minister responsible for a state corporation.

The staff of a Minister when dealing with constituency matters may, however, makesrepresentations to a state corporation.

The staff of the responsible Minister, because of their special responsibilities insupport of their Minister, may not make representations, on behalf of a constituent, toany state corporation, which falls within their Ministers Ministry of responsibilities.

It is recommended that the office of the Minister responsible for a State corporationestablish a procedure, in cooperation with the corporation, to enable Ministers officeto pass on as a referral, for the corporations appropriate action.

These guidelines do not prevent any Minister or their staff from social contact withthe officers and staff of State Corporations nor from participating in briefing sessionsinitiated by the corporation.

handbook on governing responsibility in kenya

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