Repeal of the Kenya Social Assistance Act 2013 is improper.

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Repeal of the Kenya Social Assistance Act 2013 is improper.

The Kenyan government has recently introduced a bill to repeal the Social Assistance Act 2013. The Social Assistance (Repeal) Bill 2020 seeks to repeal the Social Assistance Act 2013, which was
assented to in 2013 but has never been operationalized 7 years later. The reason or object of the repeal is to enable the operationalization of the Social Assistance Fund, under draft regulations
through the Public Finance Management Act 2012. The Social Assistance Act of 2013 was passed to enhance the provision of social assistance and related services to vulnerable populations in Kenya.
The Social Assistance Act 2013 provides parameters of those who qualify to receive social assistance. It also sets different situations where social assistance may be provided. These include in emergencies, short term or long term basis and in special circumstances. The Act also provides for the establishment of a Social Assistance Authority as an institutional mechanism for the provision of social assistance and other key services to vulnerable people.

The government’s intention to set up a Social Assistance Fund under the Ministry of Finance and National Treasury is misguided. One wonders why the government is keen to repeal the Social Assistance Act 2013, using regulations under the Public Finance Management Act 2012. In 2019, when the government asked for memoranda on the proposed regulations, civil society stakeholders were categorical that the move to develop regulations on social assistance under the PFMA 2012 should be totally rejected. Social Assistance is not just limited to providing grants to those in need, but it includes different aspects of social protection and social services. The provision of grants is just one facet of social assistance. Social assistance takes different forms – it can be cash grants, food
donations of food stamps, food for work, and it could also be cash for work programs among other instruments. The Social Assistance Act 2013 had also anticipated other needs that the beneficiaries have beyond cash, including psychosocial support, rehabilitation, and community development. Moreover, social protection approaches are diverse including a provision (which includes the provision of grants or food items), preventive (cushioning people against risks and shocks for example through insurance), promotive (includes interventions that strengthen livelihoods and productivity) and transformation (which includes policies and programs that promote equity and empowerment including promoting social and economic rights). It is therefore unlikely that the Ministry of Finance and National Treasury would integrate all these services in the design of the social assistance fund.

Social protection goes beyond cash transfers, and this is one reason why its implemented under the Ministry in charge of social services because it requires a holistic approach.
It is also notable that social protection has three pillars which include social assistance (cash transfers, currently consolidated into the “Inua jamii” programme), social security (the National Social Security Fund), and Health Insurance (The National Health Insurance Fund). The other two pillars of social protection, namely the social security and health insurance both operate through substantive laws;-
The National Social Security Act and the National Health Insurance Act respectively. It is highly unlikely that these two pillars will be recreated under the Public Finance Management Act. It has always been our contention that the social assistance pillar remains the weakest link in social protection since the substantive law has not been operationalized. Additional social security and health insurance have through their respective Acts solid institutional mechanisms ( the NSSF and the NHIF Boards). Previous reviews on the Social Assistance Act 2013 indicate that the proposed National Social Assistance Authority is not tenable; however there is a need for the government to have clarity on the institutional arrangement and governance of social assistance programs, but certainly not an implementation structure under the Ministry of Finance and National Treasury. The Ministry of Finance and National Treasury can form part of the governance structures that enhances the monitoring of funds, but not the direct implementation of such funds. The funds that have been established under the Government Financial Management regulations including the Women Enterprise Fund and the youth funds seem to be limited to the disbursement and repayments of loans.

Since 2004, some of the social assistance programs that have been initiated by the government include the cash transfer programs that have been implemented 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), which are now consolidated into one program the “inua jamii” program. Cumulatively, the exchequer makes available about 26 billion shillings annually for the cash transfer programs, with each beneficiary entitled to 2000 shillings per month, payable every second month. 1.2 households or 6 million people benefit from the cash transfer programs.

The establishment of the Social Assistance Fund under the PFMA amounts to duplicity and will cause confusion with the ongoing social assistance programmes. There have been different legal processes undertaken by the government in a bid to come up with a new law on social assistance and social protection. These processes include Social Protection Council Bill 2014, The Social Protection Bill 2016, The Public Finance Management (Social Assistance Fund )Regulations 2019 and more recently the Social Assistance Fund Bill 2019( under the PFMA 2012) . The undertaking of various processes in a bid to come up with social assistance or social protection law in the last five years points to the lack of clarity by the government on how the social assistance pillar of social protection should be undertaken.

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