The Kenyan government is now drafting a new Organic Budget Law that will provide a comprehensive framework for budgeting in Kenya. While this is a laudable initiative, we argue in the latest IBP Brief that both the substance of the draft law, as well as the process by which it has been formulated, need to be interrogated:
- There should be broader participation in its drafting, and
- A high degree of transparency and accountability in its contents.
From Constitution to Implementing Legislation
Last year, Kenyans approved a new constitution. The document entails significant changes in nearly every facet of government. One of the key achievements of the constitution is to transform the way the government spends public money, or what is often called the public financial management system. The constitution reduces the power of the Treasury, and increases the power of Parliament to decide how to spend government funds. It also creates new opportunities for public engagement with the budget, both at the central and at the new county level.
However, Kenya’s constitution leaves many important details to be worked out in implementing legislation, bills which have to be approved by Parliament over the next several years. It is important, therefore, for citizens to monitor closely any new legislation that is proposed to ensure that it continues to embody the spirit of the constitution with respect to greater transparency and citizen participation.
Drafting the OBL in the Dark
Currently, Kenya’s government is drafting a new budget law (known as an Organic Budget Law) with the support of the IMF. This process is happening in the dark, where neither citizens nor other donors are fully aware of what is transpiring. Of course, government has a right, and even a responsibility, to develop initial drafts of important legislation internally before sharing them for comments. But when important bills are being drafted, the public also has a right to know what the government is doing, when drafts will be made available, how much time there will be for comments, and so on. This allows stakeholders to prepare to engage with the process. In the case of the OBL, the government has been silent about its intentions, and no timetable has been offered.
This opaque approach is inconsistent with the tenor of the new constitution, and lends itself to speculation that Treasury may try to recoup some of the discretion it lost in the new constitution through the implementing legislation.Of course, nobody knows if Treasury is really trying to subvert elements of the constitution, because no one has any idea what it is doing. That is exactly what is wrong with the process so far. Kenyans worked hard to pass the new constitution, and they deserve to participate in open debate around the implementing legislation to ensure that it complies with the spirit of the constitutional referendum itself. Government should immediately announce a timetable for release of the draft under production, as well as a timeline for receiving public comment, and procedures for incorporating citizen feedback.
Include more transparency and participation provisions in the OBL
At the same time, citizens should demand that the new budget law augment transparency and provide opportunities for participation in the budget process. IBP has a new brief out that details some of the provisions and language that could go in a budget law like the one Kenya is producing. You can read it here. It calls for, among other things:
- Provisions guaranteeing that budget information is made available throughout the year in an easy to use and transparent manner
- Clear guidelines for incorporating citizen feedback on the budget and responding to it
- Limits on the amount of funds that the Executive can spend without parliamentary oversight
- A mechanism for linking the public’s own oversight to the Auditor General in order to ensure greater accountability for management of public funds
What else do you think should be included in Kenya’s new budget law?