The Social Assistance (Repeal) Bill, 2020 proposes the repeal of the Social Assistance Act, No. 24 of 2013 in order to enable the enactment and operationalization of the Public Finance Management (Social Assistance Fund) Regulations made under the Public Finance Management Act, No. 18 of 2012.
Whereas the enactment and repeal of any legislation is within the mandate of Parliament, and Whereas Parliament would be within its powers to repeal the Social Assistance Act, 2013 (the Act), We the Stakeholders in the sector , beseech Parliament to reject the Social Assistance (Repeal) Bill, 2020 (hereinafter called the Bill) and instead opt for amendments to the Act, for the following reasons:
The repeal would serve an unconstitutional objective.
The Bill seeks to repeal a statute enacted pursuant to Articles 21 and 43 of the Constitution of Kenya 2010 (COK 2010) in implementation of human rights and fundamental freedoms and replace the same with an administrative tool for the effective management of funds. Article 21(2) of the COK 2010 commands the state to take legislative measures to achieve the rights guaranteed under Article 43. Article 21(4) also requires that the state enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. It is worth noting that Kenya has signed and ratified conventions obliging it to offer certain social assistance interventions. Such include the Universal Declaration of Human Rights and the ILO Social Protection Floors Recommendation, 2012 (No. 202)
Legislation is defined by the constitution to include An Act of Parliament, or law made under Authority conferred by An Act of Parliament’. Though law, regulations are not Acts of Parliament. The PFMA, though an Act of Parliament, is not a statute enacted for purposes of achieving article 43 rights and cannot therefore be the legislation envisaged under Article 21(2).
Establishing the Social Assistance Fund under a Statute that provides for the effective management of public funds denies and undermines the fact that the Social Assistance is a protected constitutional right and that, therefore, is a tool for the achievement and protection of rights and fundamental freedoms. Conversely, the fund to be created by the PFMA regulations is a tool for effective management of public finances.
Even if, for arguments sake, the effectiveness of a social assistance fund would be enhanced by the application of the PFMA, a statute would still be required to establish the Fund whose sole objective is to protect rights and fundamental freedoms, through addressing the rights and needs of vulnerable groups, in partial discharge of the mandate conferred on the state by article 21(3) and article 43.
It is relevant here to point out that Parliament recognized the Social Assistance Act sought to be repealed as one that sought to give effect to Article 43(1)(e) of the Constitution;. It was thus always the intention of Parliament in enacting the Social Assistance Act that it was creating an instrument for fulfilling the rights and fundamental freedoms in the Bill of Rights. It is also relevant to note that Parliament enacted the Public Finance Management Act for purposes of providing for the effective management of public finances by the national and county governments; the oversight responsibility of Parliament and county Assemblies; the different responsibilities of government entities and other bodies and for connected purposes.
By repealing the Act, Parliament would be removing the one Statute that enforces social assistance as article 43 rights without replacement and replacing it with a regulatory tool for financial efficiency. We opine that this would be improper, ill considered and unconstitutional.
The repeal is founded on a false premise.
The memorandum of objects and reasons for the Social Assistance (Repeal) Bill asserts that the Bill does not concern county governments as social security is a function of the national government under the constitution of Kenya 2010 (COK 2010).
We take issue with this assertion. The Fourth Schedule, Part 1, line 14 of COK 2010 lists as a function of the national government, Consumer protection, including standards for social security and professional pensions plans. It is this provision, and possibly, as fall back, Article 186(3) of COK 2010 that the mover of Bill relies to assert that Social security is a national government function.
We note on the onset that the COK 2010 refers to standards for social security and professional pension plans. We thus opine that the national government rests at setting standards for social security, not the entire ambit of social security.
That notwithstanding, and without getting into the conceptual debate as to what exactly is meant by social security in COK 2010; whether social security includes social assistance; or whether indeed the authors of the constitution sought to treat social protection, social security and social assistance as interchangeable; we assert that social assistance is a tool, and the Social Assistance Act , 2013 an instrument for fulfilling protected rights and fundamental freedoms.
Given that the protection of rights and fundamental freedoms are mandates to be discharged by all state organs under Article 21(1) of COK 2010, and given that the constitution has to be read as a whole, it is our assertion that county governments have a social assistance mandate.
To that extent, a fund established for the national government, such as funds established under S.24(4) of the PFMA, cannot be a proper and legal mechanism for meeting the objectives of a fund that would serve both national and county governments.
Our assertion is bolstered by the existing practice which has seen counties undertake social assistance interventions without challenge; and by the fact that the diverse nature of social assistance interventions of necessity cuts across the various functions of the two levels of government and defeats an attempt to pigeon hole it as a function of national government.
At best, we see Social Assistance, as a concurrent function of the county and national governments, making the PFMA the wrong instrument to use for its establishment. A sui generis legislation, such as the SSA, is the best way forward.
The Kenya Social Protection Policy 2007 and the review of Kenya Social Protection Policy 2017 both recognize social protection as having three pillars which include Social Security, Health Insurance and Social Assistance. We note that the other two components of social protection are anchored on substantive legislation: – the National Social Security Fund Act, the Pension Act, and the National Health Insurance Fund Act. There is no policy statement or indeed any indication that the National Social Security Fund and the National Health Insurance Fund will be re-created under s. 24(4) of the PFMA. It is however clear that both Funds are subject to the provisions of the PFMA. There is no reason why the Social Assistance Fund established under the Social Assistance Act, 2013 should be disbanded by repeal of the Act, and established under the PFMA while the other funds are not interfered with. We note here that no reasons are given as to why a regulatory establishment of the Fund is preferred over the existing statutory establishment.
It is notable that the implementation of a social assistance programme does not just involve the payment of funds, but has other elements of social rights, and empowerment, which rights must be protected by substantive law. It is also improper for the Treasury under the Ministry of Finance to repeal a law that is under the State Department of Social protection, under the Ministry of Labour and Social Protection. The setting up of the Fund at the treasury appears more like setting a Fund account rather than a social assistance programme that entails intricacies and interventions that promote the social wellbeing of citizens in addition to provision of grants. This calls for amendments to the SSA, 2013, if need be, and not its repeal.
There have been different legal processes undertaken by the government in a bid to come up with a new law on social protection including social assistance. These processes include the Kenya Social Protection Policy 2007, The Review of the Kenya Social Protection Policy 2017, The Social Assistance Act, 2013, the Social Protection Council Bill 2014, The Social Protection Bill 2016, and recently The Public Finance Management (Social Assistance Fund) Regulations 2019. These processes points to the lack of clarity in the government on how the social assistance pillar of social protection should be undertaken. We fear that the repeal leaves social assistance pillar of social protection, and the rights of Kenyans, even more vulnerable.
We have had opportunity to review the draft regulations under the Public Finance Management (Social Assistance Fund) Regulations, 2019. While we concede that the same are subject to ongoing discussions among stakeholders, we discern in regulations issues of concern that support our insistence that the Social Assistance Fund be established by an Act of Parliament. These include:
The regulation calls for the administration of the Fund under the Treasury. We opine that any administration of the Social Assistance Fund would require staff with experience in social and psychosocial development. Implementing a social assistance fund under the Ministry of Finance will therefore greatly disenfranchise the beneficiaries.
Since 2004, some of the social assistance programmes that have been initiated by the government include the cash transfer for the elderly (OP-CT), cash transfer for Persons with Severe Disability (PWSD-CT) and cash transfer for Orphans and Vulnerable Children (CT-OVC). These are now consolidated into one programme the inua jamii programme. Cumulatively, the exchequer makes available 30 billion shillings annually for the cash transfer programmes, with each beneficiary entitle to 2000 shillings per month, payable every second month. 1.2 households or 6 million people benefit from the cash transfer programmes. The Fund established under the PFMA regulations has a proposed Fund of 2 billion. It is not clear whether this fund will be used for the same purpose as the inua jamii programmes, and therefore be a duplication, or whether this is a replacement fund, in which case the funds allocated are far from adequate.
The draft regulations create a conundrum in governance of the Fund. Apart from the confusion and ambiguity caused in implementation between the Principal Secretary Finance and the Principal Secretary in charge of Social Assistance, the Board created which is both an oversight board and an executive board, a factor that hinders transparency and will no doubt create a lot of confusion in the implementation of the social assistance programmes.
We reject the repeal of the Social Assistance Act 2013 as proposed in the Social Assistance Repeal Bill 2020. We have severally proposed the amendment of the Social Assistance Act 2013, and in case of a repeal, the objects of such a repeal should not be to do away with the substantive legislation on Social Assistance, but rather to strengthen the provisions of such a law, including extending protection to the beneficiaries of social assistance programmes.
We attach herein our previous submissions to different processes.
Endorsed and Signed by the following:
Africa Platform for Social Protection
HelpAge International – Kenya
Dr. Samuel Kabue
Social Protection Actors Forum (SPAF)
Women for Dementia Africa
Ecumenical Disability Advocates Network
firstname.lastname@example.org and email@example.com
La Vie Foundation
Age Concern Foundation
Pst. Noah Nsubuga
County Trackers Elderly Foundation
Senior Womens Citizen for Change
Dated: Nairobi, Wednesday, 8th July 2020