REPUBLIC OF KENYA

OFFICE OF THE PRESIDENT CABINET OFFICE

HANDBOOK ON GOVERNING RESPONSIBILITY IN KENYA

NOVEMBER 2005

TABLE OF CONTENTS
CHAPTER ONE: THE EXECUTIVE...................................................................................1 1.1 The Executive ............................................................................................................1 1.2 Presidents Functions and Powers .............................................................................1 1.3 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 .....................................................5 1.13 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..........................................................10 2.1 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. ......................................................11 2.2.2 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......................................................16 3.6 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 ..............................................................................................................................24 Annex A ...............................................................................................................................24 ii

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 ...............................................................................................................................27 C.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 public service. The Government must lead in adapting our political and other institutions to enhance 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 my government will be transparency, accountability, financial responsibility and ethical conduct. Kenyans must have faith that their government is managing their affairs in an open, honest and transparent manner. Ministers, Assistant Ministers and Permanent Secretaries, are expected to work hard to earn the support and respect of Kenyans and colleagues in parliament and public service respectively through active engagement and the highest standards of ethical conduct. The HANDBOOK ON GOVERNING RESPONSIBLY IN KENYA explains the principles of sharing responsibilities and actions that are intended to guide you in undertaking 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 the following principles: Integrity: You must uphold the highest ethical standards so that public confidence, trust in the honesty, objectivity and impartiality of government are upheld. Ministers in particular, have an obligation to perform their official duties and arrange their private affairs in a manner that bears the closest public scrutiny. This obligation is not fully discharged merely by acting within the law. Public confidence: You must always preserve the public confidence in the integrity of management and operations within your Offices. You must carry out powers, duties and functions of your offices in accordance with the constraints provided by the law. Accountability: Ministers and Assistant Ministers are accountable to parliament for the use of the powers vested in them by law. This requires your presence in Parliament to answer questions about the use of those powers. You must accept the responsibilities that flow from those powers. It is most important for you to give honest, accurate and truthful information to Parliament. You must take steps to 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 collective responsibility.

Non-partisan Public Service: Ministers must respect the non-partisan nature of the public Service of Kenya. The public Service will provide you with the expertise and advice needed to enable you fulfil your ministerial functions and mandate without regard to political partisanship. This Handbook will aid you in your role of promoting a culture of integrity, achievement and respect for our democratic institutions in a working Nation. We owe this to our fellow citizens.

MWAI KIBAKI

PRESIDENT iv

CHAPTER ONE: THE EXECUTIVE

1.1 The Executive

Kenya is a sovereign Republic. The Republic of Kenya is a multi-party democratic state. Thus, the structures and conduct of executive authority are governed by Kenyas constitution, written Law and customs that have been established and have evolved over the history of Kenya. The Executive Authority of the Government is vested on the President assisted by the Cabinet Ministers who are responsible to Parliament and the citizens in general.

1.2

Presidents Functions and Powers

The President, who is both head of state and government, is above all, responsible for appointing members of the Cabinet and for providing the leadership necessary to maintain the unity of the Government. This unity is essential if the government is to maintain 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 the organization, 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 to meet its objectives. Supervise the conduct of Ministers. Sign the Presidential or General Warrant, which authorises issues from the Consolidated Fund in accordance with the Appropriation Act. Assent all bills passed in parliament before they can become law.

1.3

Vice-Presidents Roles The 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 Ministers from among members of the National Assembly. Thus, the Cabinet Ministers are accountable to both the President and the National Assembly in the performance of their duties; Ministers are individually accountable for executing the responsibilities 1

assigned to them by the President. The Ministers are therefore expected to uphold both the individual and collective responsibilities Since the Minster is accountable to Parliament on matters of management of the respective ministry, Assistant ministers and all staff in the ministry should support him or her to collectively implement Government policies. They should thus work closely, consistently and in a well-coordinated manner in liaison with the National Assembly. In addition, the ministers are expected to participate in the approval of government policies before presentation to the National Assembly. This act in itself makes them own all Cabinet decisions and cannot therefore disown them unless they resign from the government. Ministers are expected to spearhead and support policies emanating from their ministries and especially if the matter under discussion cuts across several ministries. In pursuing government business, all Cabinet Ministers should observe Cabinet Solidarity and confidentiality. Since the overall government agenda largely determines the ministrys goals, ministers are expected to work closely with their colleagues to ensure that their ministries agenda is included in the broader national agenda 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. On the other hand, the relevant statutes vest ministers with powers used for the day-today management of their ministries. These powers are held in trust of the State. The powers are then delegated to Permanent Secretaries and heads of department to exercise on their behalf. Despite this arrangement, Ministers are responsible to the National Assembly individually and for actions of subordinate staff and bodies falling under their ministry. The Ministers are particularly charged with the responsibility of: Shaping future policies and laws. Ensuring service delivery within the governments policy and legislative framework; Ensuring that advisory Committees that make decisions and determine appeals from the public are functional. Ensuring that State Corporations provide services in accordance with the functions of the Ministry.

The ministers also oversee state corporations falling within their mandate and which maintain unique relationships with the line ministry. However, all these state corporations are answerable to the National Assembly through them. The Minister, in addition to the other roles given, is responsible for coordination of overall governance, legislation and programmes to meet the objectives of the ministry. These roles are played through the assistance of the Permanent Secretary, who is his/her principal adviser on all matters of the ministrys management. The Permanent Secretaries are responsible for policy implementation coordination and

harmonization of activities. Ministers should also guide state corporations under their 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 of a colleague. In such a case, the acting Minister may exercise the full powers of the Minister, but is highly advised not to make major decisions during the acting capacity. Should a need for making such a decision arise, the acting minister is advised 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 their actions, including those that are not directly related to their official functions. Ministers are therefore expected to adhere to the Public Officer Ethics Act, 2003 in all circumstances, whether acting as a Minister, a Member of Parliament or a private citizen. This is meant to uphold the image of the minister as an individual as well as that of the government The ministers must also act with honesty and must uphold the highest ethical standards to ensure that public confidence and trust in the integrity, objectivity and impartiality of government are maintained and enhanced. Ministers, have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny. This obligation is not fully discharged merely by acting within the law.

1.8

Ministers Personal Staff

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

1.9

Ministers and the Law

All government activity must be implemented in accordance with the law. Ministers having any doubts on the legality of a particular action should refer to their Permanent Secretary or seek legal advice from the Attorney General. As much as possible, ministers should be guided by the various statutes and regulations governing the management of their Ministries.

1.10

Relations with the Judiciary and Other Government Agencies

As Members of Parliament, Ministers have responsibilities to their constituents. However, there are limitations on their ability to act on behalf of constituents or others, including themselves, when dealing with certain government agencies. The President expects Ministers and their staff not to intervene, or appear to intervene, on behalf of anyone, including constituents, with the Judiciary concerning any 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 matter before them that requires a decision in their judicial capacity, unless otherwise authorized by law. Ministers are therefore responsible for ensuring that they and their staff understand and respect the need for non-interference and an arms length relationship with these organizations should be maintained. While Ministers need to be in contact with the agencies within their own Ministries on a broad range of matters, governing statutes give some bodies such as State Corporations a degree of independence from Ministrys direction. A Ministers degree of control and responsibility on these organizations is defined in the Act that establishes them. They must also understand and respect their arms length relationship with them. In matters regarding another Ministers docket, Cabinet norms preclude a Minister from speaking about or otherwise becoming involved in a colleagues Ministry without first gaining the colleagues approval. This does not preclude the Minister from speaking directly to the Minister responsible. Nor does it prevent the Ministers staff from raising the concerns of constituents either with the staff of the Minister or through channels in the departments or agencies that are specifically intended for dealing with matters of constituents. There are situations when the office of a Minister can expect requests for assistance from other members of the Parliament on behalf of their constituents. When such an intervention is requested on a judicial matter, the office should indicate that it is not possible by any Minister and suggests that the constituent deal directly with the agency. However, Ministers and their staff may seek information that is available to the 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 and responsibility for a non-departmental body is defined in the Act that establishes that body. While a Ministers relationship with a non-departmental body is at arms length, the Minister must still provide the organization with general guidance on the governments objectives and expectations. Ministers need to know both the details of their responsibilities, as well as the limits of their powers, for those bodies. 4

Permanent Secretaries can provide advice to Ministers on these issues, particularly in the context of integrated Ministry management. Though the minister should keep cordial relations with independent decision-making tribunals falling under his/her ministrys mandate, he/she should never at any onetime try to influence their decision-making. The heads of such bodies are appointed by the President on advice of the Permanent Secretary and minister in charge. Some of 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 public service.

1.12

Ministers Relations with the National Assembly

Clear Ministers accountability to Parliament is a fundamental principle and ensures that Kenyans have confidence in their government and that it is open, honest and transparent. A parliament that makes real decisions requires Parliamentarians who have and can use information as tools to promote the interests of the country and to hold the government to account for its decisions. The President expects Ministers to place high priority on ensuring that Parliament and its committees are informed of departmental policy priorities, spending plans, and management challenges. Ministers are expected to seek the views of fellow members and Parliamentary committees on plans and priorities, and to dedicate time to consulting and engaging their colleagues in Parliament in order to earn their support. These elements are key in 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, and through them the officials under their management and direction, are accountable to Parliament for their actions. Parliament also reviews government spending as a key element 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 House duties. These duties includeMandatory daily attendance of Ministers in the House at question time. Any proposed absence from the country must be authorised by the President. When a Minister is absent, an acting Minister or an Assistant Minister answers on his/her behalf. Attendance at other specified times according to the mandatory schedule of House duties prepared by Leader of Government business in Parliament. Ministers are personally responsible for arranging replacements if they have to be absent and for notifying the Chief Whip of the arrangements. 5

Piloting their own legislation through the House and to appear before Parliamentary committees as required. In relation to debates in the House, standing orders also require that members of parliament declare any pecuniary interest before participating 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 she or he has portfolio responsibility. Any issue of this sort must be discussed in advance with the President, the leader of Government business in the house and the Chief Whip. Responding to private Members motions. Under the Standing Orders, all private Members motions are votable. The government determines its position on all Private Members motions. If a motion specifically opposes government policy, Ministers who are responsible for the policy should ensure that Members of Parliament are informed about the governments position, and seek their support on the same. Maintaining Committee relations; the government will look to the parliamentary committees to play an active role in policy and legislative issues, and ministers should place high priority in developing good relationships with committee chairs and members and supporting the essential work of the committees. Undertaking other House duties. The Leader of Government business in Parliament assigns and coordinates other House duties to Ministers, such as attendance during voting, issuing Government statements and leading the governments response to Opposition party motions. Ministers duties and relations with Parliament are very demanding and require significant support, particularly in question period and committee work. They require careful daily and long-term coordination with the Chief whip and the Leader of government business in parliament. On their accountability to Parliament, Ministers are required to answer Parliamentary questions concerning their ministries as clearly and as fully as possible. It is of paramount importance for Ministers to give accurate and truthful information to Parliament, and to correct any error at the earliest opportunity. Parliamentary questions cannot be directed to a former Minister concerning policies or transactions in 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 may have occurred prior to their appointment. Parliamentary accountability recognizes that only the person to whom responsibility and authority are assigned can take action. Ministers cannot be accountable for matters over which they have no authority. The statutes governing many nondepartmental bodies such as regulatory commissions or tribunals may assign only limited Ministerial responsibility for internal management and operations. In these cases, Ministers accountability is limited. Where Ministers do not have direct responsibility for addressing issues raised by Parliament, they must nevertheless ensure that the non-departmental body concerned does address those issues.

1.14

Assistant Ministers

Section 19 of the constitution empowers the President to appoint Assistant Ministers from among members of the National Assembly to assist a Minister or to undertake specific duties assigned by the President. While an Assistant Minister does not have a ministry independent of the minister, he or she is a member of the Government, participates in collective decision-making, and must uphold the confidentiality of Government decisions. Upon appointing an Assistant Minister, the President sets out his/her specific roles in a letter of appointment. The Minister then outlines roles in writing that are more detailed, bearing in mind that he is responsible for responding to any broad direction on priorities conveyed by the President. An Assistant Minister may be assigned a Department to supervise under the direction of the minister. The Permanent Secretary to ensure that the senior Staff of the respective Department gives the Assistant Minister the necessary cooperation and support. They may also be called upon 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 the President well in advance and in writing. Ministers are also expected to consult the Leader of the Government Business in Parliament and the Government Chief Whip and to ensure the availability of acting Ministers. When making use of government aircraft, Ministers should make every effort to ensure joint travel in the interests of efficient use of government resources. Ministers and Assistant Ministers should limit travels abroad, especially while Parliament is in session. While travelling abroad on official or private matters, they must inform the Ministry of Foreign Affairs in advance to facilitate their security among other considerations. On return, all goods acquired by ministers abroad are subject to normal customs requirements and examination, and must be declared on arrival and relevant duties paid 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 are bound by the Oath of Office, the Official Secrets Act as well as the Public Officer

Ethics Act and must therefore maintain confidentiality at all times. In addition, they must ensure that cabinet information is not released without Cabinet Office approval. Permanent Secretaries are accountable to their Ministers for the security of departmental personnel, information, facilities and other assets. All individuals who work in or for Ministers offices must be vetted and approved before appointment. In addition, Ministers have been granted armed police security throughout. The officers are always in contact with the wider police network in case additional back up is necessary. However, Ministers should not hesitate to inform their Permanent Secretaries if increased security is needed. Ministers are required to notify their Permanent Secretaries immediately of any potential compromise of Cabinet confidences. The Permanent Secretary, Secretary to the Cabinet and Head of the Public Service can provide Ministers with further information on security matters.

1.17

Cabinet, Institutional and Personal Records

Private and public records of ministers must be filed separately for operational efficiency and confidentiality while at the same time ensuring compliance to the applicable 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 Orders and 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 conflicts of interest, applying compliance measures and briefing Ministers on their responsibilities under the codes. The Ministers should also try to control the behaviour of their immediate families or relatives whose actions are likely to bring ridicule or disrespect to the Government. Ministers are accountable to the President for their adherence to the provisions of the 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 the provisions of the Public Officer Ethics Act 2003 in their capacity as Members of Parliament.

1.19

Invitations

Ministers often receive invitations to participate in or endorse events, community initiatives or publications, to meet with people or to travel to various countries. 8

Ministers must be aware that some invitations may come from individuals or groups with dubious motives or backgrounds. The purpose for such invitation must be well explained and the Minister has to be cleared by the Government to attend. Any comments he/she makes in his private capacity do not reflect the official position of the government. Ministers are expected to exercise discretion at all times. They are responsible for ensuring the bona fides of those with whom they have dealings. When there is any doubt about accepting an invitation, inquiries should be directed to the Permanent Secretary, Secretary to The Cabinet and The Head of Public Service for advice. The Permanent Secretary, Secretary to The Cabinet and The Head of Public Service will then make inquiries, offer general advice to the Minister and arrange briefings as may be necessary.

CHAPTER TWO: PERMANENT SECRETARIES

2.1

Permanent Secretary, Secretary to the Cabinet and Head of the Public Service

The Permanent Secretary, Secretary to the Cabinet and Head of the Public Service is a non-partisan public servant appointed by the President under section 22 (2) of the constitution. He is the Presidents Permanent Secretary and is responsible for the 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 to brief him on all staffing, operational problems and major policy issues in their ministries.

2.2

Roles of Permanent Secretaries

Permanent Secretaries are professional, non-partisan public servants. They are appointed 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-day management of the ministries. However, Permanent Secretaries do not exercise direct authority over statutory bodies within the Ministry. Permanent Secretaries as chief executives of the ministry are required to manage a complex set of multiple accountabilities. These arise out of various powers, authorities and responsibilities attached to the position. They have two main roles mainly those of being Accounting and Authorized officers

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2.2.1

Permanent Secretary as an Accounting Officer.

The Permanent Secretary to the Treasury personally appoints Permanent Secretaries by letter to be responsible for the financial management of the Ministrys votes. This therefore makes them personally accountable and responsible to parliament on the use of the same. When authority granted by Parliament is delegated to the Accounting Officer, there must be adequate accountability within the Ministry /Department before the overall accountability to Parliament is rendered. The Accounting Officer therefore has the power of summoning any officer to whom he has delegated authority to personally account for disbursement/commitment of Public Funds in case wastage and misuse is suspected. As an accounting officer, the permanent Secretary is personally expected to Personally sign the Appropriation Account, other accounts and Annual Financial statements. This makes him/her responsible for their correctness and accountability. Ensure custody of funds due to a ministry/department and for proper conduct of 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 the ceiling of the Vote and are approved by the specific statutory authority where necessary. Ensure that excess expenditure is not incurred above the total sum approved by Parliament on Vote, Head and Items. All known amounts due as Appropriations in Aid (AIA) and Extra Exchequer receipts connected with the votes under his control should be promptly collected and accounted for in full. Ensure that Public Expenditures are incurred in respect of services for which Parliamentary approval was granted and then only within the specified limits. Ensure that all revenues due to the Government are collected and properly accounted for in accordance with laid down statutes, rules, and Regulations. Manage, control and ensure that policies are carried out efficiently with minimal wastage of public funds. Ensure that there are adequate arrangements for custody and safeguarding of public property and that proper systems are followed for acquisition and disposal thereof. Ensure that proper financial and accounting records are maintained which are capable of providing reliable information and basis for preparation and submission of periodic Statements and Accounts.

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Provide strategy for linking of resources to objectives and their effective utilization and achievement of predetermined goals after critical Policy Analysis. Arrange activities of his/her Ministry/Department in a coordinated manner to facilitate expedient execution of the activities/services and be capable of controlling and adhering to objectives of Financial Administration. He/she should not only guard against losses but also against irregularities and wastage. He/she should also help in identifying the weak points in the systems, which can be sorted out promptly to remedy the situation and hence safeguard public funds.

2.2.2

Permanent Secretary as Authorised Officer

The Permanent Secretaries, being the chief executive officers of the ministry are expected 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 Commission vide 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 Assistant chiefs, 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 the probationary 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 with regulation 19.

The exercise of these powers can however be challenged by any aggrieved public servant by appealing to the Public Service Commission. Such an appeal must however 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 on temporary terms for periods not exceeding 12 months to fill a vacancy in a ministry. The Permanent Secretary can only however extend such an appointment upon consulting 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 his Minister

The Minister and the Permanent Secretary may at times disagree on an important matter affecting the financial administration of the ministry. In a case where a minister insists on implementing a policy in a manner seen as wasteful and extravagant by the Permanent Secretary, while still noting that an accounting officer has a duty to obey ministers instructions, he/she must ensure that the ministry is administered economically and efficiently. The Accounting Officer should not however hesitate to register his/ her objections on any course of action he she regards as inconsistent with duty. The Accounting Officer should also record such an objection, which he may find difficulty in defending as a measure of prudent administration before the Public Accounts Committee. Having done that, the Accounting Officer must then accept the course of action taken by the minister and defend the action taken by citing the policy ruling given by the minister. In case the matter of the Accounting Officers objection involves his personal liability on an issue of regularity or propriety, the accounting officer should both register the objection in writing and grounds for it but also request written instruction from the minister authorizing the action and over ruling the Accounting Officers advice. Finally, after taking such an action, he/she should inform the Treasury of the circumstances and then communicate the papers to the Controller and AuditorGeneral. If these procedures are followed faithfully, then the Public Accounts Committee 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 in a clear chain of command. The President appoints Permanent Secretaries, whereas the Public Service Commission appoints Deputy Secretaries, Heads of Departments and other officers. The accountability of departmental staff is to the Minister through the Permanent Secretary, but the Minister is accountable to the National Assembly and the President. Public officials must work within the laws of Kenya, and maintain political neutrality while in the Public Service. This ensures their continuing ability to provide professional, candid and frank advice. In no circumstances should departmental officials be asked to participate in partisan political activities. Public Officer Ethics Act, 2003 stipulates that all public officials are responsible for preserving public confidence in the integrity of management and operations within their departments.

2.3.1 Conflict between a Permanent Secretary and his/her Minister 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 and discipline rest with the Public Service Commission.

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The Public Service Commission has partly delegated some of these responsibilities to 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 the Exchequer and Audit Act. They: Spell out Control and Management of Public finances (i.e. Management of public 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 of credits on exchequer account, issue from the exchequer account to be paid into the bank account, overdraft on exchequer account, issue from the Consolidated fund, investment of moneys in consolidated fund). The Audit of Public Accounts and the Protection of Public property (i.e. annual accounts, reports on accounts, notification of irregularities to Treasury, power to dispense with examination of certain accounts. Spell out procedures for Audit of Accounts of local authorities, submission of accounts, powers of Controller and Auditor General and other auditors, report of 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, expenditure authorization, and accounting, submission of accounts of State Corporations In the execution of this role, the Permanent Secretaries should ensure that all expenditures in his Ministry are properly and prudently managed and are related to the conduct of official business. The Permanent Secretary /Accounting Officer is responsible for preparation of the Appropriation Accounts for the Ministry within four months after the closure of the financial year in respect of the votes and moneys allocated. The appropriation account shall show the services for which the money expended were voted, the sums actually expended on each service and the state of each vote compared with appropriation; and each such account shall contain a statement explaining any variation between the expenditure and the sums voted, and shall contain such other information and be in such form as the Treasury may direct, and the statement, as well 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 the responsibility of the President, assisted by the cabinet. The Cabinet determines the main thrusts of the programme. The Leader of the Government Business in the House coordinates the process of translating the Cabinets policy decisions into bills to 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 ministry concerned is responsible for discussing with the Treasury the financial implications of the draft bill, other ministries concerned and indeed all other stakeholders. The draft should be in a simple language clearly stating the objectives, purpose, background and other existing legislation affecting the subject. After Cabinet has approved a Ministrys draft bill, the bill is forwarded to the Attorney General for finalisation. The pace of presenting drafted bills to parliament is set by the leader of Government business in the House in close consultation with ministers sponsoring them. The Leader of the Government Business is supported in this regard by his or her own Ministry staff, the Cabinet Office, the Deputy House Leader and the Government Chief Whip. Parliament approves the Governments annual estimates and authorises appropriation 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 the purposes of the Government of Kenya shall be paid into and form a Consolidated fund from which no monies shall be withdrawn except as may be authorised by the constitution or by an Act of Parliament (including the Appropriation Act) or by Vote on account passed by the National Assembly under section 101. Expenditure of public funds before appropriation is provided for under section 101 of the Constitution of Kenya, which states: If the appropriation Act for a financial year has not come into operation, by the beginning of that financial year, the National Assembly may, by vote on account authorise the withdrawal from the consolidated fund of moneys (not exceeding in total one-half of the sums included in the estimates of expenditure for that year that have been laid before the assembly) for purposes of meeting expenditure necessary to carry on the services of the Government of Kenya during that year until such a time as the appropriation Act comes into operations, but any moneys so withdrawn shall be included, under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act 15

The Exchequer and Audit Act sets out the principles underlying the sovereignty of Parliament in the raising and spending of public money. Revenue can only be raised and 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 of the public funds is credible and avoids waste. Ministers must be prepared to respond to 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 other qualified person. He is an ex- officio member of the house. His prime duty is to enforce the rules of the house to ensure order in the conduct of parliamentary business. He is the spokesperson of the House. The Speaker is required to be authoritative and impartial in the conduct and control of the business and in application of rules of practise and procedure. He certifies all bills sent to the President for assent.

3.3

Clerk of the National Assembly

The Clerk is the Accounting Officer of the National Assembly and is responsible for the application of the correct procedure in the process of legislation. The Clerk also advises on the interpretation of standing orders, privileges, rights and immunities of Parliament for the good order and conduct of the honourable members. He is responsible for compiling the journals of the House and acts as a custodian of all records and documents laid before Parliament. He endorses all bills sent for Presidential assent.

3.4

Parliamentary Clerks

Parliamentary Clerks form a fundamental link between Ministers and The National Assembly. In committees, they help in sharing departmental information and work with committee chairpersons to plan appearances of Ministers and Government officials 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 the governments 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 is supported by the clerk of the National Assembly and the Chief whip. Ministers are

16

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

3.6

Parliamentary Committees and the Role of Departmental Officials

Appearances before House and Parliamentary committees by Ministers and their officials are an essential part of informing Parliament, enabling Parliament to represent the views of their constituents in the development of policy and legislation and to hold the government to account for its management and policies. Ministers should promote an ongoing dialogue with Parliamentary committees on their departments policy priorities, legislative and spending issues, and management challenges. Ministers, supported by the public service, should appear regularly before their respective Parliamentary committees to seek the committees input to policy and spending priorities, and to discuss departmental performance and results. Ministers are expected to provide, consistent with Treasury guidelines, informative and balanced report to Parliament, most importantly the Estimates, the Report on plans and priorities, and Departmental Performance Reports. Ministers and their officials must cooperate with the committees in their work and seek the views of Parliamentary committees on their plans and priorities. The principles of accountability and responsibility guide Ministers and their officials appearing before Parliamentary committees. Ministers are responsible for providing answers to Parliament on questions regarding the governments policies, programmes and activities, and for providing as much information as possible about the use of powers assigned to them or delegated by them to others. Ministers are also responsible for deciding which questions they should answer personally and which questions their Assistant Ministers may answer on their behalf. Officials can assist Ministers by factually answering questions at Parliamentary committees, but they are explaining rather than defending or debating policies. When appearing before this committee, officials maintain the traditional impartiality of the Public Service. The authoritative political presence of either the Minister or his or her political representative is required if politically controversial matters are likely to arise. Ministers should ensure that appearances by their officials before Parliament committees are fully consistent with the Ministry responsibility assigned by the President. Public servants are ultimately accountable to Ministers and not directly to Parliament. Consequently, departmental officials do not appear before committees without clear guidance from their Minister. While appearing on behalf of their Minister before committees, departmental officials are often able to provide more detailed information on departmental plans and performance than Ministers can. The Permanent Secretary and other officials must be prepared to describe in detail the plans, activities and performance of the department in areas such as financial management, programme and service delivery, and human resources management. 17

Public officials also have a duty and specific legal responsibility to hold in confidence information that may have come into their possession in the course of their duties. Therefore, when appearing before Parliamentary committees, they are bound by these legal obligations, as well as an obligation to the Minister and to the government, not to disclose information that is confidential for reasons of national security or privacy, or because it consists of advice to Ministers as provided for in the Official Secrets Act. In practice, officials should endeavour to work with Members of Parliament, in cooperation with Ministers and their offices, to find ways to respond to legitimate requests for information from Members of Parliament, within the limitations placed on them. In the context of a committee, releasing information that is not in the public domain can only be made available on the specific authorization of the Minister, 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 other stakeholders and, accordingly, House leaders or Leaders of each party are kept informed 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 the management of the Government. These departments are critical and include the Attorney General, the Cabinet Office, the Public Service Commission, The Treasury, State House, Public Communications Office, and the Directorate of Personnel Management.

4.2

The Attorney General

The constitution, under section 26, makes a special provision for the office of the Attorney - General in the public office and Section 109 empower the President to appoint the Attorney General. The Attorney General is not responsible to a Minister in 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 authority and indeed enjoys security of tenure. He is an ex-officio Member of Parliament and a member of the Cabinet, is the Principal 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 after receiving Cabinet approval. The bills are then presented to Parliament for deliberation. The Attorney-General is the public prosecutor of Kenya and is therefore solely responsible for the conduct of all public criminal prosecutions in Kenya. The Attorney-General is also responsible for the institution of criminal prosecutions and for their termination before verdict under certain circumstances by the entry of a nolle prosequi. While the Attorney-General may wish to inform himself / herself of all relevant considerations including those affecting public policy, before deciding whether or not to commence or terminate any particular prosecution, by consulting the President or any Minister, the responsibility for the eventual decision remains exclusively his/hers and he/she cannot be instructed or directed whether or not to prosecute in any particular case. In order to ensure that his/her right to decide whether to launch any prosecution is not inhibited in any way, the Attorney- General is empowered to require the Commissioner of Police to investigate any matter, which relates to any offence. A request for legal advice should be addressed to the Attorney-General under the signature of the Minister or the Permanent Secretary to the Ministry concerned. The request should summarize the issue and state clearly the specific points on which advice is required. All relevant papers should be attached and referenced. 19

Permanent Secretaries are required to seek the advice of the Attorney General before they can commit the government in any contract to make sure that it complies with the provision of the Kenyan Law and policy. The Attorney General must be involved in all agreements for financing and loans. The Attorney General must always be involved in drafting of treaties, conventions and all other manner of international instruments to ensure, firstly, the proper legal express of national interest in such documents and secondly that obligations emanating from such international legal instruments area capable of performance in the Republic of Kenya 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 brought against it. Permanent Secretaries are required to seek a no objection letter from the Attorney General before they can engage the services of a private Lawyer to act on behalf of the government.

4.3
4.3.1

Cabinet Office
Cabinet Office Headquarters

The Cabinet Office provides the President with public service support and directly assists the President in performing all of his or her duties and responsibilities as head of state and government. It is also the Cabinet Secretariat. Through ongoing consultation with departments and agencies, the Cabinet Office provides the President with comprehensive information and analysis on contemplated policies and priorities. Specifically, it provides information on organization of the government and its relations with Parliament and the judiciary. It further provides information on appointment of holders of senior offices, overall spending programme of the government, functioning of the cabinet decision-making system, development of major policies, management of intergovernmental relations and other specific issues. The Cabinet Office also provides the necessary support to the Vice President and to the other Ministers. The Cabinet Office is a government secretariat. It is politically impartial and coordinates operations at the centre of government. It is the custodian of records of present 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 relevant information to the public regularly. The government has therefore created the office of the Public Communications Secretary, under Cabinet Office, to be discharging this mandate. The office will not however divulge personal information held by the Government or government institutions unless ordered to do so through a ruling of the 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 20

therefore be coordinated to ensure they are consistent with overall government objectives and decisions. The implications of an announcement are among the issues considered by the Cabinet 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, affected stakeholders, their Permanent Secretaries and the Public Communications Secretary on all impending public announcements.

4.4

State House

State House consists of the Presidents personal and Public service staff under the Private Secretary/Comptroller of State House. The Office serves the President and is fully accountable to him or her. State House supports the President in exercising his or her duties as head of State and government, leader of a political party and Member of Parliament. The personal staff in State House provides advice on policy development and appointments, discuss Parliament proceedings with him or her, and facilitate the Presidents relations 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 guide the political strategy of the government and is the central point of communication and coordination with Ministers, Civil Service and Members of Parliament. It also works closely with the Cabinet Office to provide advice and support from different perspectives on the issues of daily concern to the President.

4.5
4.5.1

The Ministry Of Finance

The Treasury

The Treasury means the Minister for the time being responsible for Finance and such other officer or officers of his Ministry as may deputize him to exercise and perform on behalf of the Treasury any powers or duty conferred or imposed on the treasury by any written law. The Minister of Finance delegates to the Permanent Secretary to the Treasury to exercise and perform on behalf of the Treasury the powers and duties conferred and imposed on the Treasury by the Exchequer and Audit Act (Cap.412). The responsibility for management, supervision, control and direction of all matters related to the financial affairs of Kenya which are not assigned to any other Act, are, 21

vide section 3 of the Exchequer and Audit Act, vested in the Minister responsible for finance. Under various specific Acts of Parliament the Minister is further charged with the responsibility of regulating financial control and management to ensure due compliance with the functions set out in those Acts. The Minister for Finance discharges 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 oversee proper procedures for procure of goods and services and the disposal of unserviceable, obsolete or surplus stores and equipment. The directorate is responsible 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 Procurement review board was created to arbitrate all appeals that may arise in procurement and disposal.

4.6

The Public Service Commission (PSC)

Section 106 of the constitution of Kenya establishes the Public Service Commission whose members the President appoints. The commission is bestowed with the following responsibilities: Appointment of persons to hold or to act in offices in the Public Service and in the service of the Local Authorities The power to exercise disciplinary control over persons holding or acting in those 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 Service Commission from appointing certain key officers whose appointment is the prerogative of the President. The Chairman and all other Commissioners enjoy security 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 Government Ministries, Departments, Local Authorities and Public enterprises on human resource management and development. The Department has the following key functions: Formulating Human resource management and development policies, rules and regulations in the public sector Advising government on organizational structures, staff complements establishment and career guidelines. Training and capacity building in the public service Reviewing and updating the terms and conditions of service for public servants 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 a consensus on issues. Once a consensus is reached, Ministers must fulfil their collective responsibility to Parliament and to the Nation. Given that civil servants play an important role in the development of policy and consultations supporting it, they may attend Cabinet meetings upon invitation by the President or Cabinet committee meetings on the invitation of the chair. They can also enhance the decision making process through stakeholders consultations and briefings to the Ministers. Where a statutory decision or action would affect the collective interest of the government, the minister should not take the relevant action or decision without consulting the other colleagues at an early stage and submitting a paper to the Cabinet (Via the appropriate Cabinet Committee). The paper should include the ministers recommended action or decision, and preferably analysis of other options that commend themselves to the Cabinet. This will ensure that the decision ultimately taken by the minister, via the collective process, is justifiable in terms of the statutory decision making process that the minister has undertaken, and will reduce the risk of judicial review. Ministers must use their judgement in deciding which matters concerning the exercise of their individual statutory powers would affect the collective interest of the government and should therefore be brought to Cabinet. The following matters must be submitted to Cabinet:: significant policy issues; proposal that will affect governments financial position or important financial commitments; matters concerning the machinery of the government, proposals involving new legislation or regulations; government response to select committee recommendations; matters concerning portfolio interests of a number of ministries; controversial matters; all but minor public appointments, international treaties and agreements and the release of public discussion documents or reports of a substantive nature affecting government policy or government agencies. Once Cabinet makes a decision, ministers must support it regardless of their personal views and whether or not they were in the meeting concerned. If ministers are unsure about whether to take an issue concerning the exercise of their statutory power or functions to Cabinet, they should seek guidance from the President or from the 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 to maintain Cabinet Solidarity and enhance its practical effectiveness. The President organizes Cabinet and Cabinet business and chooses committee chairpersons to act on his or her behalf. The Cabinet Office is the secretariat and manages 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 vote on issues before them, rather, the President (or committee chairperson) call for the consensus after Ministers have expressed their views. The Cabinet Office subsequently records and communicates the decisions. Consultation among the Ministers and departments involved must precede the submission of a proposal to the Cabinet by the responsible Minister or Ministers. Ministry discussions in the Cabinet or Cabinet committee focus on the decisions required and provide Ministers with an opportunity to participate in and influence that decision. Ministers have the right to seek their colleagues consideration of proposals for government action in their area of responsibility. This is, of course, subject to the agenda set by the President for government priorities. The committee chairpersons acting on the Presidents behalf set cabinet committee agendas. Official secrets must be appropriately safeguarded from unauthorized disclosure or other compromise. The Cabinets collective decision-making process has been traditionally protected by the rule of secrecy, which enhances Cabinet solidarity and collective Ministry responsibility. Secrecy ensures that Ministers can frankly express their views before a final decision is made. The President expects Ministers to announce policies only after Cabinet decisions are taken, and in consultation with State House. Civil Servants involved in the decision-making process are also expected 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 efficiently and according to accepted ground rules that are fully understood and respected. Cabinet discussions should not be used to air introductory or preliminary discussions of issues. Permanent Secretaries are expected to ensure that other affected departments are adequately consulted in advance and that coordination across Ministries is pursued so that other Ministers are briefed for Cabinet discussion and government decisions are coherent and aligned with overall policies. When departments directly involved differ on a matter, the dispute should not be referred to the 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 policy and priorities as well as by electoral manifestos. The President, during the official opening of each parliamentary session sets the agenda for the parliamentary session. This agenda is normally guided by the existing policies. For example, the Minister for Finance presents the Governments annual budget forming the fiscal framework for the period as agreed by the cabinet. The Minister also tables the financial 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 raises an issue. The Cabinet Office normally circulates the supporting documents to all Ministers 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. Records of final decisions are circulated to all Ministers and their Permanent Secretaries for action under Ministers individual authority. Policy announcements are made after a Cabinet decision and after the Treasurys approval of any resources required to implement the decision.

B.3.

Cabinet and its Committees

Cabinet committees are an extension of the Cabinet itself. The President establishes both standing and ad hoc (or special purpose) committees, chooses their membership, prescribes their procedures and changes them as need arises. The Permanent Secretary, Secretary to The Cabinet and Head of The Public Service provides Ministers with information on the Presidents decisions regarding the structure 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, including setting the committee agenda. For the most part, the appropriate committee, subject to confirmation by the Cabinet, takes decisions. This system settles as many questions as possible at the committee level in order to lessen the workload of the Cabinet and to allow it to concentrate on priority issues and broader national concerns. Ministers, including Assistant Ministers, may be invited by the committee chair to attend any meeting of a Cabinet committee, whether or not they are a member of the committee. Civil Servants may attend meetings of the Cabinet on the Presidents invitation, or a Cabinet committee meeting on the invitation of the chair. The President may make other exceptions to these conventions. The President designates certain Ministers as members of each committee; they are expected to attend meetings regularly. If Ministers are not able to attend a meeting, they should inform the Chair of their views on agenda well in advance and in writing. 26

Meetings are conducted as informally as possible in both English and Kiswahili. Most Cabinet committees meet on a regular schedule. This allows for effective planning and ensures that meetings and decisions can proceed immediately. The Cabinet Secretariat provides the Cabinet and its committees the with the support required to prepare for the meetings including circulating agendas, distributing documents, providing briefs to the chairperson of each committee on agenda items and recording Cabinet minutes and decisions. Cabinet Office is also responsible for sending Cabinet minute extracts to all concerned ministries for implementation and monitors the implementation of decisions.

B.4.

Legal Notices

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

B.5.

Financial Procedures

According to the Constitution, monies can be spent or borrowed by the government only with the authority of Parliament. A Finance bill, for the raising or spending of revenue, must originate in Parliament, as the House is the custodian of the public revenue. The Constitution of Kenya requires Finance bills to be recommended to the House by the Minister of Finance. This ensures legislatures control over revenue raising and spending initiatives before any money can be withdrawn from the consolidated fund and only acquire power of law when the President signs the general warrant. Parliament exercises its authority over government financial administration through instruments such as the Appropriations Act, Supplementary appropriations Act and the printed estimates and the Public Accounts Committee .The parliament together with its agent namely the Controller and Auditor general and the Public Accounts Committee 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 Permanent Secretaries and Ambassadors to Chief Executives, Directors of State Corporations among others. Many of these positions are very demanding, requiring extensive work and difficult decisions. It is essential for appointees to be well qualified, and senior government appointments must be made through a process that ensures broad and open consideration of proposed candidates. 27

By legislation or requirement under Standing Orders of Parliament, some appointments are subject to Parliamentary review and approval. While making public appointments the President considers the following: Representational criteria based on gender, equity, expertise and regional considerations among others. Appointees personal integrity. Appointments are given legal effect by the Presidents signature. By legislation or some appointments are subject to Parliamentary review and approval.

Annex D

D.1

Cabinet, Institutional and Personal Records.

Cabinet papers belong to the Government and are formal records as designated by the Cabinet office. They include Memoranda to Cabinet (MCs), Cabinet Committee Reports (CRs), records of decisions (RDs), agendas, aide-memoire, and documents prepared for Ad Hoc Cabinet Committees or Reference Groups of Ministers. The efficient operation of the Cabinet and the necessary confidentiality of Ministry discussions partly depend, on the proper handling of Cabinet memos. Ministers must ensure that Cabinet memos provided to them are always safeguarded in accordance with the security requirements set by the Cabinet office. Civil Servants must also respect this protocol when they are given access to such documents. Ministers must assign members of their staff with specific responsibility for controlling the flow and ensuring 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. Ministers may 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 of government occurs, the outgoing President traditionally leaves the Cabinet records of his/her government in the custody of the Permanent Secretary, Secretary to the Cabinet and Head of the Public Service. The Permanent Secretary, Secretary to the Cabinet and Head of the Public Service plays a central role in administering the access to Cabinet papers. Former Ministers are bound for life to respect their oath of office including observing Official Secrets Act. They must also honour their commitments to other Ministers and colleagues. When talking or writing about their experience in government, former Ministers must consult their former departments to ensure that they do not disclose 28

matters that remain confidential. Any questions should be addressed to the Permanent 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 or entity, 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 their Ministry on a broad range of administrative, policy and regulatory matters when authorized to do so by legislation. For instance, the Minister may communicate with the Chair of a tribunal on its budget. Ministers and their Permanent Secretaries should work with the agencies in their Ministry to clarify mutually agreed limits on the information, which may flow to and from 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 not appropriate because the requests concerns a quasi-judicial case, the Ministers office should indicate that an intervention is not possible by any Minister and suggest that the constituent deal directly with that agency.

E.3

Dealings with Quasi-judicial Tribunals on Behalf of Constituents

There are limitations on the ability of a Minister to act on behalf of constituents as far as quasi-judicial bodies are concerned. Ministers and their staff cannot intervene on behalf of any person or entity with a national or sectoral quasi-judicial agency on any matter before it that requires a decision in its quasi-judicial capacity. Ideally and for the sake of harmonious management of the Government, a Minister should not speak about or otherwise become involved in a colleagues Ministry without first consulting him and gaining his approval.

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Annex F

Dealings with State Corporations

Minister responsible for a state corporation must deal with it on a variety of matters. 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 state corporation nor does his or her staff. Because of the wide range of activities carried out by individual State Corporations, the appropriate role of the Minister must be determined 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 directly with the Minister responsible for a state corporation. The staff of a Minister when dealing with constituency matters may, however, makes representations to a state corporation. The staff of the responsible Minister, because of their special responsibilities in support of their Minister, may not make representations, on behalf of a constituent, to any state corporation, which falls within their Ministers Ministry of responsibilities. It is recommended that the office of the Minister responsible for a State corporation establish a procedure, in cooperation with the corporation, to enable Ministers office to pass on as a referral, for the corporations appropriate action. These guidelines do not prevent any Minister or their staff from social contact with the officers and staff of State Corporations nor from participating in briefing sessions initiated by the corporation.

.The

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