- Fred Sitati argues that cooperative registration should remain centralised to protect a unified national register.
- He cites Legal Notice No. 85 of 2021, which categorised registration as a concurrent national and county function.
- Sitati outlines possible legal steps to prevent fragmentation of cooperative regulation as Parliament considers the new Bill.
Kenya is working to overhaul its cooperative framework that predates devolution. The Cooperative Societies Act (CSA) Cap 490 is to be replaced by a new Cooperatives Bill now before the Senate. Amid this, a sharp jurisdictional dispute has emerged over who holds the legal mandate to register cooperative societies.
The 2010 Constitution devolved the broad function of “cooperative development” to the 47 county governments. However, recent pushes to decentralise the actual registration of cooperatives to individual counties have sparked concerns over regulatory fragmentation, loss of a unified national register and potential disruption to the sector.
To understand why centralised registration must be preserved and what legal avenues can protect it while Parliament concludes its legislative work, it is necessary to trace the policy and constitutional trajectory that has defined cooperative governance since 2017.
Let me walk you through the trajectory of repealing the current CSA Cap 490 that began in 2017. The process commenced with the formulation of the National Cooperative Policy, which was subsequently adopted and validated in 2019 at a ceremony presided over by the then Cabinet Secretary (CS) for Cooperatives, Peter Munya. This was followed by parliamentary approval, which elevated its status to Sessional Paper No. 4 of 2020.
In the subsequent year, 2021, the Intergovernmental Technical Relations Committee (IGTRC), created under the Intergovernmental Relations Act, 2012, unbundled the National and County cooperative functions and gazetted them accordingly vide Legal Notice No. 85. In that Legal Notice, which has a legally binding effect, registration of cooperatives was categorised as a concurrent function where the Commissioner for Cooperative Development (CCD) did the registration and maintained the National Register.
Earlier on, the National Policy, 2019, had equally listed the various National and County functions, in which registration remained a concurrent function. What is important to note is that the said Policy had undergone public participation as dictated by Article 10 of the Constitution of Kenya, 2010, hence it had undergone due process.
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Usually, legislative making processes are guided by the policies that are formulated by line Ministries or CSs. The reason is that it is at the Ministry headquarters that government policies are generated. More importantly, it is at headquarters that the relevant information on any international commitments or obligations rests.
The country is a member of various international partners such as the International Cooperative Alliance (ICA) Global, ICA Africa Region, the Pan African Parliament (PAP), and many others with whom Kenya has memorandums of understanding (MOUs). Such agreements do not necessarily bind the country, but constitute soft law that may be customised or domesticated, where necessary, into our municipal or local Acts. A good example is the adopted Cooperative principles promulgated by the ICA in 1995, hence applicable to all ICA members, who include Kenya.
The point, then, is that the ongoing Senate deliberations cannot be stopped midway because of the principle of Separation of Powers. However, as at now, we are relying on the CSA read together with Legal Notice No. 85 on the delineation of cooperative functions.
Since we are unanimous that centralised registration is necessary, the CS or the CCD can move to court. They can argue that there exists a Legal Notice that has explicitly unbundled cooperative functions, and that by allowing counties to register cooperatives at their level, they would be acting ultra vires the law and would cause irreparable damage to the smooth running of cooperatives, as discussed yesterday.
In any case, the Constitution envisaged that counties shall customise both the national policy and national law through their respective County Assemblies.
By Fred Sitati
Consultant with the Cooperative Movement
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