It emphasizes that these appearances are not mere courtesies but mandatory constitutional obligations, essential for checks and balances and fundamental to Kenya’s democratic spirit.

Overview of Kenya’s devolved system

Kenya operates under a two-tiered system of government: the National Government and 47 County Governments. While these levels are distinct, the Constitution mandates that they be interdependent and operate through consultation and coordination. The National Government consists of three arms – the judiciary, the executive and parliament. The Judiciary is an independent arm of government headed by the Chief Justice, mandated by Chapter 10 to interpret the law. The Executive is led by the President, who appoints cabinet secretaries to implement national policy. Parliament is established under Chapter 8, this bicameral legislature consists of the National Assembly (the lower house) and the Senate (the upper house).

The Senate (Article 96) comprises 68 members and serves as the primary guardian of county interests. It oversees the division of revenue and holds state officers - including County Governors - to account. At the county level, County Governments consist of an Executive, led by the Governor, and a County Assembly, which is charged with making laws and exercising oversight of the County Executive. The Intergovernmental Relations Act of 2012 established the Council of Governors (COG), a body mandated to promote consultation amongst the 47 counties and facilitate coordination between the national and county governments. The Council is comprised of the 47 governors’ representing all 47 counties. Its leadership is elected periodically from amongst the governors.

The 2026 accountability standoff

In February 2026, the COG issued a provocative statement: Governors would cease appearing before Senate committees, specifically the County Public Accounts Committee (CPAC) and the County Public Investments and Special Funds Committee (CPIC). The Governors alleged that these sessions had devolved into witch hunts and extortion expeditions. In response, the Senate maintained that Governors were abdicating their constitutional mandates. The Senate Speaker asserted that the Parliament possesses the power to issue summons and compel attendance through arrests, for instance. This standoff raises a critical question: What is the legal basis for Senate oversight?

The Legal basis for accountability

The Senate is mandated by the Constitution (under articles 110 and 117) to oversee revenue allocation and oversight of county expenditure. In a series of judgments, the courts have reiterated that the Senate has a constitutional mandate to oversee counties, especially regarding county finances and expenditures. In Petition No. 24 of 2019, Senate vs Council of Governors,  the Supreme Court, the highest court in the land, held that the Senate has a constitutional mandate to oversee the expenditure of nationally allocated and locally raised revenue. The Supreme Court was, however, clear in this petition that the Senate had no power to dictate the release of funds from the National Treasury to the county governments. The court observed that the Senate could not therefore order the Minister responsible for finance to stop funds transfer, as it would be an overstep which would paralyse the performance of county duties.     

In Kyalo Kamina v Senate & Others, the court held that governors and county governments cannot audit themselves and that oversight by an external body, such as the Senate, is necessary to safeguard accountability. This decision supports the idea that the Senate has the authority to question county officials on financial matters. In Monda & 2 Others v Senate & Others, the high court discussed the procedures for Senate involvement in impeachment proceedings of a governor, and importantly, confirmed that governors have a constitutional right to be heard but also an obligation to participate in Senate proceedings and processes. How does the Senate exercise this oversight function?

The Senate has the freedom to perform its oversight function through its committees. The committees may consider various documentation, including audit reports, county finances, and any other questions involving counties. Oversight is mainly conducted through Senate committees, such as, the County Public Accounts Committee. The Senate has the power to summon individuals and even entities to appear before it by virtue of Article 125 - which gives Parliament (including the Senate and its committees) powers similar that of a court of law to call any person to appear before it, require the production of documents, and take evidence under oath. Governors are no exception from this provision. Hence, notwithstanding the allegations made by the COG, governors have an obligation to appear before the Senate and answer queries on their counties. Absconding from this obligation stifles accountability, which is one of the national values. It may also give the impression that the governors are inadvertently admitting that they are guilty. The Auditor General has pointed, year after year, that there is imprudent use of public resources at the county level. This not only affects their reputation but also service delivery in their communities, as so much time is spent trying to resolve disputes which could have been resolved by answering queries.

On the other hand, despite the constitutional obligation bestowed on governors, it is imperative that the corruption allegations levelled against some Senators are not ignored. The claims of extortion and corruption made by COG before the Senate in 2026 are increasingly common. In 2019, the governors accused some Senators of soliciting bribes to influence the outcome of audit queries whenever governors appeared before Senate committees. Additionally, members of County Assemblies have also complained publicly of the Senate’s corrupt deals during impeachment proceedings, with some senators accused of extorting money from governors brought before them to influence their impeachment proceedings. However, despite the repeated accusations against the Senate and Senate committees, these allegations have remained political and public accusations which have never been taken seriously, reported, or addressed using any legal channels. This not only raises questions on the validity of the allegations but also the seriousness of the issues raised and whether county governors are only using them as a political leverage. This being a matter of national importance and central to the success of devolution and the optimal performance of counties, the COG must file official complaints with the Ethics and Anti-Corruption Commission and have the allegations investigated. 

Conclusion 

Checks and balances across various levels and arms of government are mandated by the Constitution. Appearance before the Senate is an oversight measure necessary to ensure prudent use of public resources at county level. The Senate and the COG must therefore find a way to resolve their conflict through constitutionally and legally established mechanisms to avoid paralyzing service delivery and adherence to constitutional values and principles. The standoff risks paralysing fiscal oversight of county governments, which are responsible for billions of shillings in public funds. It raises constitutional questions about the balance of power between devolved county executives and national oversight institutions.  Against this background, it is suggested that:

1. Governors immediately resume their constitutional obligation to appear before the Senate.
2. The COG formally report cases of extortion to the Ethics and Anti-Corruption Commission so that it can commence proper investigations and action against the alleged perpetrators.
3. The Speaker of the Senate facilitates internal investigations within the Senate Committees to ensure optimum and legal function of the committees.
4. The Intergovernmental Relations Technical Committee (IGRTC) intervene and resolve the dispute between the Senate and County governors to ensure the resumption of oversight sessions before the Senate.

By Benta Moranga, Doctoral Researcher