Concept of Devolution
The Constitution of Kenya 2010 contains provisions for the devolution of two of the three arms of government: namely, the legislature and the executive. Chapter 1 - Sovereignty of the People and the Supremacy of this Constitution:
1. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– (a) Parliament and the legislative assemblies in the county governments; (b) the national executive and the executive structures in the county governments; ........
This devolution is built around a core unit of geographical subdivision known as a County. These administrative Counties which number 47 in total, are listed in the First Schedule of the New Constitution.
6. (1) The territory of Kenya is divided into the counties specified in the First Schedule.
These County boundaries are to a large extent what were known as Districts up to 1992. Indeed, a judicial review (Job Nyasimi Momanyi & 2 others v AG & another [2009] eKLR), on the same and delivered in September of 2009, affirmed this and essentially declared approximately 210 additional districts created after 1992 as illegal. The Districts were administered under 8 larger units known as Provinces.
Although these 8 provincial administrative units as well as the additional 210 District have been ignored by the new Constitution, the National Government's Provincial Administration is yet to fully transition from the District system to the sub-county (based on the constituency) as a unit of administration.
The Counties operate under a limited devolved system of government:
6. (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
The need for governments to consult and cooperate at all times cannot be overemphasised, seeing that any misunderstanding or miscommunication between them has the potential of raising political and social instability issues, not to mention waste of resources through duplication, or at worst case scenario, denial of public resources by National Government.
The Constitution therefore allows these governments to set up liaison bodies to synchronise vertical and horizontal activities and relationships between and amongst them. Chapter 11 - Devolved Governments, Part 5 - Relationships Between Governments:
189. (2) Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.
It is from this provision that Parliament enacted the Intergovernmental Relations Act 2012 to "....... establish a framework for consultation and co-operation between the national and county governments and amongst county governments; to establish mechanisms for the resolution of intergovernmental disputes ......."
One of these joint committees is the Council of County Governors established by the Act and which in the opinion of this writer, mischievously and opportunistically, played to the public gallery when, soon after the establishment of County Governments after the March 2013 General Elections, it repeatedly accused the National Government of frustrating devolution. The Summit's claims ranged from 'undue delay by the Transition Authority TA, to devolve functions'; 'stringent conditions set by the Controller of Budget in budget preparation and fund appropriations'; to 'refusal by the National Assembly to consider the Senate's amendments to the Division of Revenue Bill to increase devolved amounts', etc.
As fate would have it, the Council was successfully able to exert political pressure and prevail on the President to 'order' the Transition Authority and Treasury to rush its timetable for the transfer of functions and funds respectively.
Unsurprisingly, these acts of commission by the TA came to haunt it and the Council as well, as less than a year later in the month of March 2014, the activities of County Governments came into sharp public focus with the general feeling that there was little to show in terms of performance in delivery of services. The Governor's Council simply gave the (lame) excuse that their members had no prior knowledge about the intricacies and complexities involved under the new dispensation.
The TA on its part, was quick to remind the Council that it was not at fault as it had tried its best to persuade individual Counties to adhere to a customised devolution-of-functions and funds timetable that it (the TA) had prepared for each County, but which they ignored. The Chair of the TA had this to say on this issue of en masse and therefore premature transfer of (devolved) funds before the authority moved the functions to the Counties; that it “basically turned the constitutional principle of ‘resources follow functions’ upside down”. In effect, the TA was blaming Treasury and the Controller of Budget for the mess that was playing out.
Moving on, other bodies established by the Intergovernmental Relations Act 2012, include an eight-member Intergovernmental Relations Technical Committee led by the Cabinet Secretary for Devolution, and the National and County Government Co-ordinating Summit aka as 'The Summit' that includes all the 47 County Governors and is led by the President. Both bodies are required by the Act to report to both Houses of Parliament, as well as to all the 47 County Assemblies.
The concept of devolution across all 47 Counties adheres to the same uniform set of objectives that embrace affirmative action. Excerpts from Chapter Eleven - Devolved government, Part 1 - Objects and Principles of Devolved Government, Article 175:
175. County governments established under this Constitution shall reflect the following principles–– (a) county governments shall be based on democratic principles and the separation of powers; (b) county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and (c) no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.
As has been noted in the introduction, the devolution so envisaged contains administrative, political and fiscal elements and structures of decentralization of the national government. Consequently, the County is an independent entity working within the greater good of the Republic of Kenya. Excerpt from Chapter 2 - The Republic, Article 6 of the Constitution:
6. (2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
Being a unit of devolution, the County is itself represented nationally. This has been achieved by the creation of a second legislative house or Senate, at Parliament. Elected Senators of the Counties will sit in this house. Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament:
96. (1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.
98. (1) The Senate consists of— (a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency; (b) sixteen women members who shall be nominated by political parties ....... (c) two members, being one man and one woman, representing the youth; (d) two members, being one man and one woman, representing persons with disabilities; ........
Indeed, the Senate is a part of and is encompassed within the concept of Kenya's devolution under the New Constitution. The Counties will henceforth enjoy political autonomy through the expanded House of Parliament; (for more on this House, see the discussion on the Senate).
The Senator will be expected to act as a sort of liaison between the County Assembly and Parliament to facilitate harmonization between county and national legislation, and inter-county legislation with respect to adjacent counties that share the same resource(s).
The potential twin problems of devolved corruption and waste of resources due to inadequate human resource capacity at the Counties has been addressed by the Constitution too. Firstly, the County County Assembly are expected to conduct its business openly and transparently. Excerpts from Chapter Eleven - Devolved Governments, Part 3 Functions of Devolved Governments, Articles 196, 199:
196. (1) A county assembly shall— (a) conduct its business in an open manner, and hold its sittings and those of its committees, in public; and (b) facilitate public participation and involvement in the legislative and other business of the assembly and its committees.
(2) A county assembly may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.
199. (1) County legislation does not take effect unless published in the Gazette.
In view of the Constitution's transparency and integrity requirements affecting public servants, calls have already been made for public vetting of those who will wish to be appointed to key positions in the county assemblies and governments. There should also be no sacred cows in the devolved units to perpetrate corruption and impunity, because the Assembly's oversight and audit functions have been enhanced by being granted the powers of a superior Court in its functions:
195. (1) A county assembly or any of its committees has power to summon any person to appear before it for the purpose of giving evidence or providing information.
(2) For the purposes of clause (1), an assembly has the same powers as the High Court to— (a) enforce the attendance of witnesses and examining them on oath, affirmation or otherwise; (b) compel the production of documents; and (c) issue a commission or request to examine witnesses abroad.
Secondly, where a County lacks adequate human resource capacity to perform a given function, the restructured Provincial Administration PA, is expected to provide technical and capacity support. The PA is an experienced hand in public administration and should be able to provide the requisite technical support to the Counties.
NB. The judicial arm of government has not been decentralised and is therefore set to continue as a single national/central homogeneous unit. However, legislative decentralisation will and should lead to different Counties enacting their own laws in line with their circumstances and preferences. Detailed discussion on the Judiciary can be found on the link.
