As the reader is well aware, Kenya's New Constitution decentralized only two of the three traditional arms of government, namely the executive and the legislature. Excerpts from Chapter Eleven - Devolved Government, Part 2 — County Governments:
176. (1) There shall be a county government for each county, consisting of a county assembly and a county executive.
In order to provide for the effective implementation of Kenya's new systems of devolved governments in Chapter 10 of the Constitution, necessary national legislation was enacted in the lengthy County Government Act 2012.
200. (1) Parliament shall enact legislation providing for all matters necessary or convenient to give effect to this Chapter.
This Act attempted to lay the foundational details of what it really means to devolve government by not only addressing and defining the structures and functions of the County executive and legislative arms, but also by providing for civic education at the grassroots in order to guarantee effective citizen participation in the management of their own affairs. Thus it captures the objective and concept of the system, as well as the how and what will be established and administered i.e., execution.
However, on the 31st of July 2014, an amendment introduced into the County Government Act 2012 via the County Government (Amendment) (No 2) Act of 2013 originating from the Senate became law under a process that was not without political controversy. The amendment, which established County Development Boards, had drawn sharp reactions from the Council of Governors who reasoned that the establishment of the Boards would not only usurp the powers of county governments, but would also violate the constitution's provisions for separation of powers as their memberships are to be drawn largely from legislators. The County Governments (Amendment) Act 2013, Part I (Preliminary):
2. The County Governments Act, 2012, hereinafter referred to as the "principal Act", is amended by inserting the following new section immediately after section 111--
111A (1). There is established, for each county, a board to be known as the County Development Board, consisting of the following persons- (a) the member of the Senate for the county ......., who shall be the chairperson of the Board; (b) the members of the Senate nominated .......; (c) the members of the National Assembly ....... representing the constituencies located in the county; (d) the woman member of the National Assembly for the county ......., who shall be the vice- chairperson of the Board; (e) the members of the National Assembly nominated .......; (f) the governor of the county, who shall be the secretary to the Board; g) the deputy governor of the county; (h) the speaker of the county assembly; (i) the national government's representative for the time being responsible for planning at the county level; j) the leader of the majority party in the county assembly; (k) the leader of the minority party in the county assembly; (l) the chairperson of the county assembly committee responsible for finance and planning; (m) the chairperson of the county assembly committee responsible for budget; (n) the chairperson of the County Public Service Board.
Incredibly, out of a minimum total membership of 14 (some Counties have more than 1 nominated legislator, and therefore will have larger Boards), the only technocrats in the Board are the national government representative and the chairperson of the County Public Service Board! The rest are politicians. What upset the Governors even more in the amendment, was the fact that the Senator, and not they, would chair these Boards. Even from a neutral's point of view, the Boards' functions clearly duplicate those of the County Government (both the executive and the legislative) as assigned by the County Government Act 2012, and also crowd out the provisions of the Public Finance Management Act 2012. Consider the second part of the amendment as it attempts to address itself on the roles and functions of the Boards:
111A (2) The County Development Board, for each county, shall- (a) provide a forum, at the county level, for consultation between the national government and the county government; (b) coordinate and harmonise county development plans and projects; (c) consider and adopt county integrated development plans before they are tabled in the county assembly for approval; (d) consider and adopt county plans for cities and urban areas before they are tabled in the county assembly for approval; (e) consider and adopt the county annual budget before it is tabled in the county assembly for approval; (f) perform any other functions related to the mandate of the Board.
The keen reader would have noticed that sub-clause (a) above duplicates provisions of another Act, namely the Intergovernmental Relations Act of 2012 on the working relationship between the national and county governments.
It is also worth mentioning here that the Council of Governors had promised to move to Court in opposition to the Bill after it was passed by the Senate and before it was assented to by the President. Not only that, it took the formation of a mediation committee of both Houses of Parliament to pass the controversial Bill owing to the fact that when it was forwarded to the National Assembly it faced strong opposition from that House.
Furthermore, and earlier, the Commission for the Implementation of the Constitution had also opposed the Bill terming its provisions as unconstitutional.
It should therefore not surprise the reader to learn that on the 10th of July 2015, the High Court agreed with the Governors' prayers - that the 2014 County Government (Amendment) Act was null and void saying, "The senators, MPs and county commissioners have no duty sitting in the county development boards. Any law giving them that power is unconstitutional and against the spirit of separation of powers.”
Let us move on. As we have pointed out previously, the County is viewed as the formal unit and symbol of Kenya's new devolution. Higher standards in the letter and spirit of the Constitution and the Act, further demand that both the County Executive and the County Assembly, seek ways and means to devolve their operations further - a perfect democracy smoothly spread down to the grassroots:
176. (2) Every county government shall decentralise its functions and the provision of its services to the extent that it is efficient and practicable to do so.
Yet-to-be-enacted local legislation will clarify the process and modalities of the framework in which the members of these sub-local executive committees and assemblies will be elected/appointed by the people of the Wards and Locations.