MPs probe possible wastage of county resources on non-devolved functions

Sigor MP and chair of the National Assembly Departmental Committee on Regional Development Peter Lokachapong in Mombasa on Monday / BRIAN OTIENO

Counties may be funding functions that are not explicitly theirs, leading to wastage of resources that could otherwise be used to develop other areas, MPs have said.

 The MPs, under the National Assembly Departmental Committee on Regional Development, said partnership agreements signed between 34 counties and the Education ministry could create a loophole through which funds meant for development are channelled towards social protection.

 Committee chair and Sigor MP Peter Lokachapong questioned the deals in Mombasa, arguing that any function assigned to counties must be accompanied by resources to implement it.

 However, he said education support for secondary schools and universities is not a devolved function, yet counties are providing the support using county resources.

 “Are we therefore legitimising the use of county resources for functions that are not constitutionally assigned to counties?” he asked.

 He was speaking during a session with officials from the Intergovernmental Relations Technical Committee.

 The team revealed that 34 county governments have signed Intergovernmental Partnership Agreements with the Education ministry, enabling them to continue supporting bursary and scholarship programmes.

 Banisa MP Hassan Adan highlighted the practical challenges faced by counties such as Mandera, which has spent substantial amounts on bursaries over the years.

 He noted that while the programme had benefited many families, it had also diverted resources from other key sectors such as water, roads and infrastructure development.

 “We spend about Sh370 million annually on bursaries. That money comes from resources originally intended for development projects. The question is whether there is a sustainable and lawful funding model under these agreements,” he said.

 The Controller of Budget had at one point stopped counties from offering bursaries and scholarship programmes, arguing that these were not devolved functions.

 Controller of Budget Margaret Nyakang’o, in January 2025, said county officials were using the schemes to swindle funds from county coffers and directed that such schemes should only be implemented after official agreements with the Education ministry.

 On Monday, Lokachapong questioned the legality, funding mechanism and constitutional basis under which the 34 counties signed the IPAs.

 According to IGRTC, agreements have been prepared for 36 counties, with 34 already signed and operational.

 The Lokachapong-led committee heard that Nyakang’o had received funding requisitions from 31 counties and approved disbursements to 30.

 IGRTC chair Kithinji Kiragu said the 12^th Intergovernmental Summit directed them to conclude all pending agreements within two weeks.

 Nairobi, Mombasa, Nakuru, Kisumu, Mandera, Kwale and Kilifi are among the counties that have already signed the agreements.

 Kiragu said the current arrangements are anchored on Article 189 of the Constitution, which promotes cooperation between the two levels of government, rather than Article 187 on the transfer of functions.

 The MPs questioned whether the agreements are legally sound, with Kabuchai MP Majimbo Kalasinga challenging the continued reliance on Article 189 as the primary legal basis for the arrangements.

 Kalasinga raised concerns about development projects implemented by the national government within county jurisdictions, including market construction and questioned whether similar agreements should be mandatory in such cases.

 Not fully convinced, Lokachapong argued that bursaries and scholarships had traditionally been viewed as social protection interventions rather than devolved functions.

 “How then do you define this nature of education support?” he posed.

 The Sigor MP said there is no specific legal framework governing the agreements, citing the IGRTC’s legal advisers who acknowledged the lack of an explicit enabling law.

 “Doesn’t this render the IPAs unconstitutional?” the committee chair asked.

 Kiragu, IGRTC director of legal services Sophie Amutavy and her deputy Joy Bigambo acknowledged existing policy and legal gaps, particularly the absence of a comprehensive framework to operationalise Article 189.

 The IGRTC said a Legal Sector Working Group bringing together key institutions, including Parliament, the Office of the Attorney General, the National Treasury, the Controller of Budget and the Kenya Law Reform Commission, had been established to develop a more structured framework for intergovernmental cooperation.

 Kiragu said while there is no specific legislation dedicated to Article 189 agreements, both the constitution and the Intergovernmental Relations Act provide sufficient legal grounding for cooperation between national and county governments.

 The MPs also questioned the voluntary nature of the IPAs, saying some counties may refuse to sign the agreements, meaning needy learners in those counties could miss out on crucial education support.

 Emurua Dikirr MP David Keter called for measures to ensure all counties participate in the programme, saying thousands of needy learners risk missing out on bursary support where county governments decline to sign the agreements.

 “We may need legislation compelling every county government to sign these agreements because bursaries are critical to our children’s education,” Keter said.

 Embu Woman Representative Njoki Njeru questioned the criteria used to determine participation.

 “Does this mean that counties that fail to sign the agreements before the end of the financial year would lose access to funding?” she posed.

 Matungu MP Oscar Nabulindo warned against attempts to sidestep constitutional safeguards, saying the Controller of Budget’s office had already pronounced education support a national government function.

 “The Controller of Budget is a constitutional office mandated to guide public expenditure. If that office has pronounced itself on this matter, are we right to use agreements to create an alternative interpretation?” he asked.

 INSTANT ANALYSIS

 The Office of the Controller of Budget requires county governments to sign Intergovernmental Partnership Agreements with the Education ministry before disbursing bursary and scholarship funds. The framework was established following legal disputes regarding the constitutionality of counties funding education.