Tasks, Functions and Powers Devolved to County Governments:
Preceding discussion has broadly highlighted the Constitutional authority and responsibilities of both parts of the County governments (i.e the executive and the legislative) in order to demonstrate their roles at the local level under the concept of devolution. In this section we will examine the Constitutional provisions of those roles and powers, and how these fit in the bigger picture of the entire country, i.e., the shifting of functions and powers from the center in Nairobi to the 47 Counties. In other words, the County governments' executive and legislative responsibilities discussed in the preceding sections arise from the devolution of the following functions as listed in the Fourth Schedule - Distribution of Functions between the National Government and the County Governments, Part 2 - County Governments:
The functions and powers of the county are—
1. Agriculture, including— (a) crop and animal husbandry; (b) livestock sale yards; (c) county abattoirs; (d) plant and animal disease control; and (e) fisheries.
2. County health services, including, in particular— (a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (e) veterinary services (excluding regulation of the profession); (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal.
3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
4. Cultural activities, public entertainment and public amenities, including- (a) betting, casinos and other forms of gambling; (b) racing; (c) liquor licensing; (d) cinemas; (e) video shows and hiring; (f) libraries; (g) museums; (h) sports and cultural activities and facilities; and (i) county parks, beaches and recreation facilities.
5. County transport, including— (a) county roads;(b) street lighting; (c) traffic and parking; (d) public road transport; and (e) ferries and harbours, excluding the regulation of international and national shipping and matters related thereto.
6. Animal control and welfare, including— (a) licensing of dogs; and (b) facilities for the accommodation, care and burial of animals.
7. Trade development and regulation, including— (a) markets; (b) trade licences (excluding regulation of professions); (c) fair trading practices; (d) local tourism; and (e) cooperative societies.
8. County planning and development, including— (a) statistics; (b) land survey and mapping; (c) boundaries and fencing; (d) housing; and (e) electricity and gas reticulation and energy regulation.
9. Pre-primary education, village polytechnics, homecraft centres and childcare facilities.
10. Implementation of specific national government policies on natural resources and environmental conservation, including— (a) soil and water conservation; and (b) forestry.
11. County public works and services, including— (a) storm water management systems in built-up areas; and (b) water and sanitation services.
12. Fire fighting services and disaster management.
13. Control of drugs and pornography.
14. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.
These 14 functions and powers contain a mixture of both straight-forward and complex responsibilities. It will be incumbent on the people of a County to setup a competent public service with adequate human resource capacity that can cope with and manage the devolved responsibilities.
Inevitably the transition from a centralised administration to devolution of functions brought out the inevitable question of Civil Service rationalization. Not long after the General Elections of 2013, the National Government promised to consolidate and trim down the number of government agencies or 'parastatals' in order to "........ eliminate wastage of public funds, enhance efficiency and bolster productivity with respect to roles and functions within governments." A task force - The Presidential Task Force on Parastatal Reforms - working especially closely with the Public Service Commission and the Ministry of Devolution and Planning, was subsequently set up to advise on the way forward. It found out that the 262 government agencies at the time, could be consolidated into just 187 agencies. Explains Senator Majority Whip Beatrice Elachi, "....... (for) the maximisation of efficiencies and the minimisation of wastage." (Elachi, B Daily Nation opinion, 2014).
A year later in July 2014 the Task Force's recommendations remained in limbo due to a lack of legislative framework to facilitate their implementation, in particular, the delay in the preparation and discussion in Parliament of the requisite Government Owned Entities Bill 2014. To compound matters further, County governments had been on a recruitment spree up to that time, leading the Transition Authority to call for a halt on recruitment by the Counties' public service boards when the National Government realised (rather late) that the entire nationwide rationalisation of personnel in the national civil service would involve massive transfer of staff to the County service boards if there were to be minimal layoffs. "It, therefore, makes eminently good sense that the counties hire, in the first instance, from the national government and only look for fresh blood on the open job market later.", advised Senator Elachi.
Additionally, the findings of the Task Force constantly faced unmerited onslaught from the political class at which Senator Elachi was quick to warn, "....... taking place in a context of an information and data vacuum. ...... In any case, devolution was never going to be easy. It is a many-faceted and complex process, and it must have no room for ignorance or politicking."
At the same time, the New Constitution had recognised that some Counties might not (on their own) be able to fully hit the ground running, and had therefore provisioned for a structured 3-year phased devolution of responsibilities and functions where inadequacies exist so the peoples of the Counties have time to build own capacity. Sixth Schedule, Article 15:
15. (1) Parliament shall, by legislation, make provision for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them ........
(2) The legislation mentioned in subsection (1) shall— (a) provide for the way in which the national government shall— (i) facilitate the devolution of power;
(ii) assist county governments in building their capacity to govern effectively and provide the services for which they are responsible; and (iii) support county governments; (b) establish criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform; (c) permit the asymmetrical devolution of powers to ensure that functions are devolved promptly to counties that have the capacity to perform them but that no county is given functions it cannot perform; and (d) provide mechanisms that ensure that the Commission on the Implementation of the Constitution can perform its role in monitoring the implementation of the system of devolved government effectively.
As part of the phased-transfer of functions, the Transition Authority TA, was established via the Transition to Devolved Government Act 2012, to midwife this process of devolution. It is to this Authority that County governments must apply for the transfer of devolved functions from the national government. In order to determine the readiness of a County to take up devolved functions, the TA considers specific criteria: (a) whether there is in existence legislation relating to the function applied for; (b) whether a framework for service delivery has been put into place to implement the function; (c) whether, where applicable, the county government has identified or established administrative units related to the function;(d) whether the county government has undertaken a capacity assessment in relation to the function; (e) the arrangements for and the extent of further decentralization of the function and provision of related services by the county government; (f) whether there is the required infrastructure and systems to deliver the function; (g) whether the county government has the necessary financial management systems in place; (h) whether the county government has an approved plan in relation to the function; (I) and any other variable as may be prescribed after consultations between the Authority, county governments and the Commission for the Implementation of the Constitution and the Commission on Revenue Allocation. (Transition to Devolved Government Act, 2012). This Act has provided phases 1&2 of transfer of functions to have been completed by March and July, 2013 respectively.
As a protector of the sovereignty of the people, the Commission on the Implementation of the Constitution CIC, will be at hand to ensure that the entire legislative and implementation process of phased devolution is open, just and fair to the peoples of the Counties given that the exercise is unlikely to be without political controversy. Obviously, if a County is denied a function because of lack of capacity, it follows that requisite funding may have to be withheld as well, leading to public protests from those affected. On the other hand, a County may face a 'take-over' by the National government if it mismanages devolved responsibilities. Part 5 - Relationships between Devolved Governments in Chapter 11 - Devolved Government:
190. (3) Parliament shall, by legislation, provide for intervention by the national government if a county government— (a) is unable to perform its functions; ........
Many of the functions listed above were already being performed by local town and municipal councils. It therefore follows, and contrary to opinion, that the devolution learning-curve for the 47 Counties may not actually be that steep, when they take over responsibilities from local authorities. What has perhaps presented significant challenges is the lack of capacity in the Counties to put in place the requisite human and systems capacity levels demanded by both the Constitution and legislation including the County Government Act 2012, the Public Finance Management Act 2012, among others.
The Constitution of Kenya 2010 is also not unaware that there exists potential for conflict between the County governments and the National Government (including conflicts on County and National legislation). In such an eventuality, the New Constitution has dexterously sought to promote an amicable resolution of such disputes by allowing for considerations of jurisdiction and common national good so as to achieve a win-win situation and hence guarantee a County's political and legislative autonomy. Excerpts from Article 191 of Part 5 - Relationships between Governments in Chapter Eleven - Devolved Government:
191. (2) National legislation prevails over county legislation if—(a) the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or (b) the national legislation is aimed at preventing unreasonable action by a county that—(i) is prejudicial to the economic, health or security interests of Kenya or another county; or (ii) impedes the implementation of national economic policy. (3) The following are the conditions referred to in clause (2) (a)–– (a) the national legislation provides for a matter that cannot be regulated effectively by legislation enacted by the individual counties; (b) the national legislation provides for a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing— (i) norms and standards; or (ii) national policies; or (c) the national legislation is necessary for— (i) the maintenance of national security; (ii) the maintenance of economic unity; (iii) the protection of the common market in respect of the mobility of goods, services, capital and labour; (iv) the promotion of economic activities across county boundaries; (v) the promotion of equal opportunity or equal access to government services; or (vi) the protection of the environment.
County Law can prevail over National Law:
191. (4) County legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) apply.
(5) In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.
(6) A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.
At times, a firm ruling by the High Court may be needed to set the record straight in a matter of conflict between governments. Chapter 10 - Judiciary, Part 2 - Superior Courts:
165. (3) ........ the High Court shall have— (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of— (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; ........
At other times, such a matter may just require legal advisory opinion to resolve.
163. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
The New Constitution also does provide for arbitration by the Public Service Commission, PSC, in the event that there is an appeal concerning a County government's public service. Chapter 13 - The Public Service, Part 2 - The Public Service Commission:
234. (2) The Commission shall— (i) hear and determine appeals in respect of county governments’ public service; ........
In all other matters, the County public service is not subject to the direct supervision of either the national Public Service, nor the Public Service Commission, nor the Provincial Administration.
All of these Constitutional dispute resolution mechanisms available to the 48 governments are given effect in the Intergovernmental Relations Act 2012.
The new Provincial Administration will especially play a key role in the fourteen functions of County governments listed above by facilitating capacity enhancement, training and human resource development at the Counties. Indeed, this is what largely led to the establishment of the Transition Authority through the Transition to Devolved Government Act 2012, to give effect to some of the Articles in the Constitution that have been mentioned in the preceding discussions. It is through the key roles assigned to this Authority that the PA will, during the early years of adoption of devolution, assist every County government to understand the complexities of devolution and ultimately, to stand on its own two feet. Excerpts from Chapter Eleven - Devolved Government, Part 3 - Functions and Powers of County Governments:
187. (2) If a function or power is transferred from a government at one level to a government at the other level— (a) arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred; and (b) constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule.
Once again, the Intergovernmental Relations Act 2012 in its Part III, lays out "the how" of intergovernmental transfer of functions or powers. The Act also ensures that Parliament and the County Assemblies are privy to any transfers to ensure checks and balances.