Devolution Under the New Constitution

 

 

Administrative. Political. Fiscal.

 

Contents
Introduction

Objective

The spirit and letter of Kenya's new system of devolution goes beyond previous token decentralization of government in which sub-national administrative Districts, local councils, the weak District Focus for Rural Development initiative of the 80s, and other programs, generally failed in delivering any tangible devolution benefits to the vast majority of the people.

 

Concept

 

The Constitution of Kenya 2010 provides for a total of 47 political and administrative Counties (listed in the First Schedule of the New Constitution), under a limited devolved system of government. These County boundaries are to a large extent, what were known as Districts, circa 1993.

This devolution is three-pronged: Administrative, Political and Fiscal.

Administratively, the County executive government will originate and implement local priorities;

Politically, every County will have a cabal of elected officials to allow for strong political representation in both the local and national levels in County Assemblies and in an expanded bicameral legislature, respectively;

And Fiscally, to independently administer budgets and to raise resources locally.

Execution

Every County is expected to establish a government bureaucracy made up of an executive and a legislative arm: The county executive committee will be in-charge of formulating and implementing local policies and those (delegated) from the national government in conjunction with a restructured Provincial Administration.

The county assembly will exercise oversight on the executive committee besides making local laws. 

 

Introduction

 

The 27th of August 2010, shall for ever remain an important date in the history of Kenya. On that day, the people of Kenya adopted a new Constitution - the Constitution of Kenya, 2010 to replace the Old Constitution of independence from colonial rule in 1963. The process of writing the New Constitution took the better part of one decade, through sustained civic and political pressure and negotiations, catalysed by decades of dictatorships by minority elites and a narrow political space, that resulted in wide regional inequalities and disparities.

The adoption of the New Constitution followed a national referendum held on the 4th of August in the same year. This Constitution brought with it many significant changes in how the people of Kenya wanted to be governed.

Central to these changes was, without a doubt, the concept of devolution that goes beyond mere decentralisation of government services. In it, the people of Kenya not only demanded a form of self-governance at the local level, they also put in place a process of equitable sharing of resources.

The rationale for the present devolution is hardly different from that at independence. Back then in 1962 at the Lancaster House negotiations, sharp regional inequalities in the Kenya colony that narrowed the political space for smaller tribes led them to form a united support under the Kenya African Democratic Union (KADU) party, for demands for regionalism lest they be dominated by larger tribes in the soon-to-be independent State.

Most agree that the dynamics and realities of today are such that the likelihood of any one tribe(s) dominating the social-political landscape in Kenya is now next to nil. Nonetheless, the Constitution of Kenya 2010 safeguards that unlikely eventuality through devolution and other forms of enhanced levels of representation in national politics and power for all groups, making it a well-negotiated, progressive, and an active peace-building document when fully implemented.

 

 



 


Objectives of Devolution

 

The primary objective of devolution is to delegate power, transfer resources, and provide for extensive representation down to the local level. Therefore, the greatest expectation in the hearts and minds of many Kenyans is to regularly participate in their own governance in order to deliver the promise of faster development and access to basic amenities and services.

To minorities and other marginalised groups in particular, devolution promises to deliver affirmative action, positive discrimination, and acceptable levels of representation and 'self' governance. In other words, recognise diversity wherever it exists.

The letter and spirit of such a devolution is designed to expand the social (and political) space for the people to directly determine, own and participate in their local affairs. "It has also been encouraged by the belief that fiscal decentralization encourages the flow of local information, and that it links citizens’ needs more closely to policies and programmes" (Kirira, 2011).

Through carefully thought out provisions, the constitution has attempted to address the potential pitfalls of devolution by outlining the rationale and spirit for Kenya's devolution which for the most part, aims to provide for the people's social-political and fiscal emancipation and to create a framework on which their alienable rights can be guaranteed and safeguarded. Excerpts from Chapter 11 - Devolved Government, Part 1—Objects and Principles of Devolved Government:

174. The objects of the devolution of government are— (a) to promote democratic and accountable exercise of power; (b) to foster national unity by recognising diversity; (c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; (d) to recognise the right of communities to manage their own affairs and to further their development; (e) to protect and promote the interests and rights of minorities and marginalised communities; (f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; (g) to ensure equitable sharing of national and local resources throughout Kenya; (h) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and (i) to enhance checks and balances and the separation of powers.

Therefore in Kenya's case, this new form of decentralization seeks to cure past social injustices which had brought about sharp regional inequalities, widespread impunity and corruption, a widening gap between the rich and the poor, and the simmering social unrest seen in the last two decades and which reached boiling-point in and around the 2007 General Elections.

Indeed, the Constitution specifically requires the National Government to also take cue from the concept of devolution and, like County Governments, strive to reform its structures, systems, and processes to adequately decentralise itself throughout the country. Thus for example, its agencies and organs such as the Judiciary, constitutional Commissions, etc., must establish points of operation down at every corner of the Republic:

174. The objects of the devolution of government are— (e) to protect and promote the interests and rights of minorities and marginalised communities; (f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; (h) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; .......

6. (3)  A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.

"One should not live under the illusion that county governments have to run a function for it to be considered devolved. No level of government owns devolution more than the other." (Murkommen, 2014). He goes further to make the case that there is no distinction in importance between what is devolved and what isn't: "The argument that the county government functions are more important than those of national government to devolution is a fallacy, as they are not listed in their order of significance in the Fourth Schedule of the Constitution."

 

 


 
 

 

Challenges (facing the objectives of Devolution)

 

 

Back then in the early years after independence, the momentum for regional equality (as led by KADU), easily fizzled out under pressure from the ruling class: "Kenya’s original dalliance with devolution ..... had no sound grounding in the fundamental values of either its KADU proponents or the KANU government whose onus it became to implement it." (Nyanjom, 2011).

Although much of the blame that led to a single-party rule and a powerful presidency in Kenya is often blamed on the first President Kenyatta and his Kenya African National Union party KANU, it is unfair to wholly blame the center for the present inequalities in Kenya. The dissolution of KADU as we have noted, was a clear case in point where the regional/minority elite failed (nay, betrayed) their people when they chose to look the other way while government distorted policy and developmental interventions. In other words, the commonwealth of those elites and the centralist KANU that had formed the government were by the mid sixties, enjoying a cohabitation of two opposites that concurrently fed from each other.

Likewise today, it is an open secret, that there remains influential pockets of resistance to devolution especially among the ruling class and as such, its implementation will only happen if Kenya makes a clean break with the political dispensation gone-by and the sections of its elite who fed off it. Nyanjom makes the point for wariness on the part of the electorate in the face of this new danger: "Successful devolution requires an efficacious design for the context within which it is to be undertaken, especially in a situation such as Kenya’s where a core elite has mastered the art of self-reinvention with changing times." (Nyanjom, 2011).

In its examination of the challenge of maintaining fair and equitable allocation of resources in the framework of well-acknowledged inequalities that exist across the Counties, the International Budget Partnership IBP, makes the observation of the existence of extensive inaccuracies that define the resource allocation formulae adopted by the country in the early years of devolution under the COK2010. IBP's rationale is that at present there lacks detailed and itemised data on the extent of the real needs for resources, and true capacities to raise resources, etc., of each of the 47 sub-regions. Even if this data was available, due caution would need to be exercised on its use given that, "historical factors ....... may have privileged some areas and marginalized others." (IBP Kenya, 2013). 

2014 had its fair share of demands by a section of the political elite in demanding that the constitutional 15% minimum allocation of national revenue to devolved funds be raised to 45% without offering any empirical evidence (such as that suggested by IBP and other experts) to back their calls for a referendum. In fact, their demands have ridden on the widespread notion that the center is opposed to devolution. "The 15 per cent minimum included in our Constitution emanates from our history of political mistrust." (Murkommen, 2014).

The same elites and some Governors have also demanded the speeding up of the devolving of functions without regard for the preparedness of individual counties to perform the said functions. Having said that, prudence in (piecemeal) transfer of functions can easily be misunderstood by an ignorant population and is therefore likely to ignite dissatisfaction and complaints of discrimination amongst those counties that require more preparation to raise their capacity to manage the said functions.

Perhaps comprehensive civil education should be carried out to ensure everyone is reading from the same page in the Constitution. For example, civic education programs must take cognisance of the potential resistance that well-off areas may put forth if they happen to believe that some part of their 'rightful' share of a resource is being shared with or diverted to other regions unfairly.

This last point is likely to and is indeed already emerging as a double edged sword to the success of devolution. For example, some of the political elite from the County of Mombasa have on more than one occasion threatened to 'take over' the running of the Port of Mombasa claiming it is a local resource.

 

 

 



 


Mitigations (to the challenges facing devolution)

 

 

The foregoing notwithstanding, it is generally agreed that Kenya is a land of extensive natural inequalities that must be accommodated in this new dispensation. Hence it is imperative from the onset, to balance the needs of everyone to prevent the germination of new forms of social unrest and unhealthy competition. "....... that equals be treated equally and unequals appropriately unequally .......". In other words, devolution can only succeed if there are clearly defined reasons for its adoption accompanied by sound strategies in its implementation. "These considerations must be locked into the spatial mapping of devolution, whether the boundaries be natural (geographic) or contrived (based on culture, religion, ethnicity, language, history, race and socio-economic status) – exclusively or jointly so.

"Moreover, the framework of devolution needs to respond to existing inequalities, whether real or perceived, natural or contrived, through the failure to treat unequals appropriately unequally. Consequently, remedies must espouse elements of affirmative action or positive discrimination in the context of an equity approach that seeks to minimize inequality by uplifting the least privileged without stifling those already more advanced." (Nyanjom, 2011)

Thus devolution, and indeed the entire Constitution must somehow, despite our differences, unite us to the extent that we all enjoy a shared political experience. "The 2010 Constitution attempts to deal with the right to be different in an inclusive Kenya, i.e., how to tolerate difference whilst at the same time guaranteeing citizens’ rights" (Ouma, 2011).

Beyond the very best efforts of the drafters of the COK2010, even its most ardent supporters concede it is not a perfect document despite its broad attempts in Article 174 and elsewhere, to protect the individuality, uniqueness, and aspirations of all the groups that make up the state of Kenya. Indeed, our post-independence history is a long sorry tale of inequality and marginalization of many ethnic groups by the State; a situation that gave rise to the perception that equality was earned through bare-knuckle political contests, and that economic inclusion in national affairs was subject to the benevolence of government and those who controlled it!

As a result, and in the not too distant future, Kenyans are likely to be called upon to pass amendments to this sacred document in order to grow and develop optimum levels of devolution, decentralisation, and the sharing of resources as well as responsibilities, as they search for peaceful political outcomes. This will be a necessary exercise designed to dismantle the pecking order in national politics and economic hierarchies created under the old system of exclusivity and which are not only behind the widespread social disenfranchisement experienced today, they are what catalysed and gave preeminence to ethnicisation of the national psyche.

Simply put, Kenya's devolution both vertically and horizontally, will remain a work in progress for the next decade at the very least as the system undergoes some fine-tuning. In addition to civic education, a deft political hand by the ruling coalition is needed to counter any attempts to poison the mind of the citizen or the political climate, within the developing discussions on devolution.

Similarly, the formulae adopted in between 2010 - 2014 budget cycles to govern the sharing of national revenues are therefore expected to undergo significant review, tweaking, and refining as devolution takes root and more localised data becomes available. Hence, in order to deliver optimised levels of the fair allocation of devolved resources, national agencies such as the Commission on Revenue Allocation CRA, and the Senate as well as the Parliamentary Budget Office, must continuously benefit from regular access to clear and updated demographic data sets covering each of the new 47 Counties.

Types of data that should guide future budgets and resource allocations under devolution include household surveys, size of county economies and GDPs, county human resource capacity, fiscal prudence and budget implementation efforts, taxation levels, and so on.  

 

 



 

 

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. 

 



 

 

Implementation of Devolution

 

Executive+Legislative

 

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.

In the meantime, the management of urban devolved units towns and cities is defined in a separate Act of Parliament under the Urban Areas and Cities Act, 2011

 

 


 

 

County Executive Committee: Composition

 

First and foremost, the composition of the County Executive must reflect the diversity of the County and meet the gender threshold of the Constitution. Part 7 - General:

197. (1) Not more than two-thirds of the members of any ....... county executive committee shall be of the same gender.
(2) Parliament shall enact legislation to— (a) ensure that the community and cultural diversity of a county is reflected in its ....... county executive committee; and (b) prescribe mechanisms to protect minorities within counties.

The table below gives the composition of the County Executive:

 

Table 2. Composition of the County Executive Committee

 

Executive Office
Provisions
Governor CEO of the County.
Deputy Governor Deputy CEO of the County and presides in the absence of Governor.

County Executive Committee

Nominees of the Governor; must reflect the face of the County and fulfill gender parity.

Devolved Location Executive Committees

Must reflect the face of the Location including minorities and marginalised, fulfill gender parity, etc.

 

Each County Executive Committee will consist of a Governor (and Deputy) elected by the people of that County, and nominees of the governor to work under the governor, and appointed with the approval of the Assembly for purposes of checks and balance:

179. (2) The county executive committee consists of— (a) the county governor and the deputy county governor; and (b) members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.
(6) Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.

As per the objectives of devolution which require prudent and efficient management of resources, County governments must not be top-heavy but are required to maintain a lean bureaucracy:

(3) The number of members appointed under clause (2) (b) shall not exceed— (a) one-third of the number of members of the county assembly, if the assembly has less than thirty members; or (b) ten, if the assembly has thirty or more members.

If there is a change at the top whereby a Governor is removed from office for whatever reason, then the incoming elected Governor is entitled to form a new Committee with which to work:

(7) If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2) (b) cease to hold office.

In contrast, if a vacancy arises as a result of the death or resignation of the Governor, for example, the Deputy Governor automatically becomes Governor, and inherits the existing County Executive Committee.

The Governor will serve for a limited term, perhaps to allow for dynamism and injection of fresh leadership at the devolved units:

180. (7) A person shall not hold office–– (a) as a county governor for more than two terms; or (b) as a deputy county governor for more than two terms.

As the reader will have noticed by now, most public offices created by the Constitution of Kenya 2010 have fixed term limits. This is a welcome provision given that in the past, well-connected and monied individuals have occupied elective positions for decades.

NB. The discussion on Politics & Elections Under the New Constitution examines the manner of election and nomination of the Governor.

The Counties have been granted wide mandates as listed in the Fourth Schedule - Distribution of Functions between the National Government and the County Governments, Part 2 - County Governments, discussed below under the section on 'Functions and Powers of County Governments' . This means each of the 47 Counties of Kenya must set up and oversee an extensive county public service bureaucracy. Chapter 13 - The Public Service, Part 2 - The Public Service Commission, Article 235, excerpts:

235. (1) A county government is responsible, within a framework of uniform norms and standards prescribed by an Act of Parliament, for–– (a) establishing and abolishing offices in its public service; (b) appointing persons to hold or act in those offices, and confirming appointments; and (c) exercising disciplinary control over and removing persons holding or acting in those offices.

These norms and standards are provided in the details of Part VII - County Public Service, of the County Government Act 2012. The Act provides for County Service Boards to establish and administer own public service, among other functions.

 


 

 

County Executive Committee: Powers

 

The County Executive Committee will be the highest decision making organ at the County:

179. (1) The executive authority of the county is vested in, and exercised by, a county executive committee.

As the head of the Committee, the Governor is by default, the CEO of the County:

(4) The county governor and the deputy county governor are the chief executive and deputy chief executive of the county, respectively.

The powers of the Committee are not absolute, and will be under the direct oversight of the County Assembly for purposes of checks and balances:

183. (3) The county executive committee shall provide the county assembly with full and regular reports on matters relating to the county.

185. (3) A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs.

While approving the impeachment of the Governor of Embu County on the 13th of May 2014, the Senate highlighted the truism that the buck stops with the Governor of a County having absolved him of direct liability over the charges of gross misconduct over the financial improprieties and corruption in his County. “Impeachment is a tool of governance. It’s not a declaration about his personal liability. ....... It’s about accountability. It’s about facts .......,” said Senator Murkomen.

While the Senate remains the primary protector of the peoples' interests at the Counties, the CoK2010 provides alternative mechanisms for the citizens to directly call for the removal of their Governor through a popular initiative. Indeed, in November 2014, the people of Makueni County and the County Assembly elected to rid themselves of their County Executive when they collected more than 50,000 signatures for a petition to dissolve their own government.

Excerpt from the County Government Act 2012, Article 123:

123. (2) A petition ....... shall be supported by the signatures of not less than ten percent of the registered voters in the county.

After the signatures were verified by the IEBC, the President had no choice but to form a Commission of Inquiry with the approval of the Senate:

(3) The President shall, within fourteen days after receiving a petition against a county government under subsection (1), submit a report on the averments made and grounds giving rise to suspension of a county government before the apex intergovermental body (hereinafter refered to
as the apex body) established under the law governing intergovernmental relations for approval.
(4) Upon approval by the apex body, the President shall nominate members of a Commission to inquire into and investigate the situation in the county and make recommendations on the suspension of the county government and shall, after approval by Senate, appoint the members of the
Commission by notice in the Gazette.

Surprisingly, the petition received open support from both the Council of Governors and the President after they satisfied themselves that it was the prudent thing to do as mediation efforts between the Governor of Makueni and the County Assembly had failed to bear any fruit. Finally, on the 3rd of August 2015, the Commission handed its report to the President essentially agreeing with the people of Makueni that their government should be dissolved.

To the utter surprise of some commentators - this writer included - the President did not feel sufficiently compelled to act on the recommendations of the Commission to dissolve the County Government of Makueni citing inadequate threshold within the evidence contained in the report. Some felt that the Senate ought to have had a greater say in the matter than the President (who by the way, 'acted within the law'), perhaps because the general public expectation at that time, was that the dissolution of the County's government was a foregone conclusion. Yet others agreed with the decision of the President, terming it as both cautious but well-informed.

 

 


 

 

County Executive Committee: Responsibilities

 

As would be expected, the County Executive will perform day-to-day functions of running the affairs of the County. Article 183 broadly outlines these roles. Excerpts:

183. (1) A county executive committee shall— (a) implement county legislation; (b) implement, within the county, national legislation to the extent that the legislation so requires; (c) manage and coordinate the functions of the county administration and its departments; and (d) perform any other functions conferred on it by this Constitution or national legislation.

The Committee may also approach the Assembly to consider legislating laws that in its opinion will improve the governance of the County:

(2) A county executive committee may prepare proposed legislation for consideration by the county assembly.

 



 

County Assembly: Composition

 

Every County Assembly will consist of a Speaker and Members directly elected by the people of the Wards:

178. (1) Each county assembly shall have a speaker elected by the county assembly from among persons who are not members of the assembly.

177. (1) A county assembly consists of— (a) members elected by the registered voters of the wards, each ward constituting a single member constituency, .......

 

Table 3. Composition of the County Assembly

 

Assembly Office
 Provisions
County Assembly Speaker Elected by, but not from among the Members of the Assembly.
Members of the County Assembly Directly elected by the peoples of the Wards; Party Lists to meet gender parity, reflect the face of the County and ensure representation of 'minorities and marginalised'.
Devolved Location Assemblies As per devolution requirements to sub-county levels; Reflect the face of the Location, gender parity, minorities and marginalised, etc.

 

As we will soon see, these Assemblies were vested with wide-ranging political, supervisory and oversight powers to implement national policies, make laws, and serve minority interests. This is informed by the idea that political autonomy at the local level is important for the reason that it (hopefully) ensures the political participation of the marginalised, and hence guarantees their Bill of Rights.

As we have shown elsewhere in the discussion on Representation, new requirements for political parties to have Party Lists is a form of political decentralization. In order to fulfill the New Constitution's requirements on the representation of the marginalised and minorities as well gender parity, the composition of the Assembly is governed by special provisions:

177. (1) A county assembly consists of— (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender; (c) the number of members of marginalised groups, including persons with disabilities and the youth, ....... .

197. (1) Not more than two-thirds of the members of any county assembly ....... shall be of the same gender.
(2) Parliament shall enact legislation to— (a) ensure that the community and cultural diversity of a county is reflected in its county assembly ........; and
(b) prescribe mechanisms to protect minorities within counties.

NB. The discussion on Electoral System examines the manner of election and nomination of the members of the County Assembly.

 

 


 

 

County Assembly: Powers

 

The County Assembly enjoys certain powers, privileges and immunities to enable it to carry out its constitutional mandate unhindered:

196. (3) Parliament shall enact legislation providing for the powers, privileges and immunities of county assemblies, their committees and members.

The Assembly represents devolution of legislative authority from the center to the regions. As such it has been granted the final say on all legislation that is applicable within the County:

185. (1) The legislative authority of a county is vested in, and exercised by, its county assembly.

It will exercise oversight authority over both the County Executive and organs in the County public service by being the public's watchdog on the execution of local policies, plans, and expenditure.

(3) A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs.

On two instances in 2014, the Embu County Assembly (and the Senate) impeached their Governor over accusations of gross violation of the Public Procurement and Disposal Act, gross violation of the Public Finance Management Act, and violation of the Constitution of Kenya. In the first instance, the High Court in Kerugoya reinstated him on grounds that the Assembly and the Senate had disobeyed orders of the High Court in Embu barring any such process by the Assembly.

In the second instance in June, the Governor once again moved to Court to challenge his removal by his Assembly and impeachment by the Senate, terming it as unconstitutional.

One other successful impeachment hearing took place at the Kericho County Assembly against the Governor. He was however absolved by the Senate.

A few successful impeachments by County Assemblies took place in 2014 around the Country against Executive Committee members and even a Speaker. Indeed, these actions by the County Assemblies put many of the Governors on edge and had political commentators warning the trend could pose a threat to devolution.

One particular attempt at the removal of a County Executive Committee (CEC) member in 2014 unleashed a landmark Court ruling touching on the oversight powers of county assemblies. This happened when the County Assembly of Bungoma went ahead to recommend the removal of one of its CECs by exercising its powers under Section 40 in Part 5 of the County Governments Act 2012:

40. (2) A member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the governor to dismiss a county executive committee member on any of the grounds set out in subsection (1).
(3) If a motion under subsection (2) is supported by at least one-third of the members of the county assembly—(a) the county assembly shall appoint a select committee comprising five of its members to investigate the matter; and (b) the select committee shall report, within ten days, to the county assembly whether it finds the allegations against the county executive committee member to be substantiated.
(4) The county executive committee member has the right to appear and be represented before the select committee during its investigations.
(5) If the select committee reports that it finds the allegations—(a) unsubstantiated, no further proceedings shall be taken; or (b) substantiated, the county assembly shall vote whether to approve the resolution requiring the county executive committee member to be dismissed.
(6) If a resolution under subsection (5) (b) is supported by a majority of the members of the county assembly—(a) the speaker of the county assembly shall promptly deliver the resolution to the governor; and (b) the governor shall dismiss the county executive committee member.

As it turned out, the Court's interpretation of the actions of the Assembly essentially held that the Section 40 of the Act allowed the Assembly to act all of prosecutor, jury, and judge in the removal of a CEC in contravention of Article 50 of the Constitution of Kenya on the right of an accused person to a fair hearing before an independent and impartial body. Chapter 4 - The Bill of Rights, Part 2 - Rights and Fundamental Freedoms:

50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Thus it declared parts of the Section as unconstitutional. Said the High Court in Bungoma

"59. Accordingly, this court holds that Constitutionally, no County Assembly can purport to remove a county executive committee member pursuant to Section 40 (3) of the CGA. That provision negates the principal of independence and impartiality stipulated by Article 50 (1) of the Constitution and is null and void to that extent. Parliament should enact a law that provides for a separate, independent impartial and unbiased body that will be charged with the jurisdiction of carrying out investigations once a motion is passed by a County Assembly under Section 40 (2). It is that separate and independent body that should carry out investigations and report to the Assembly on its findings for the latter to vote on. To the extent that no such independent and impartial body exists, County Assemblies cannot purport to remove a member of the County Executive Committee under Section 40 of the CGA. That will be unconstitutional.

"60. Accordingly, I will allow the Petition and make the following declarations:- a) Section 40 (3) of the County Governments Act, 2012 is inconsistent with Article 50 (1) of the Constitution of Kenya and vide Article 2 (4) of the Constitution, Section 40 (3) of the County Government Act is void to the extent of such inconsistency."

Moving on, the County Assemblies also exercise oversight authority over the performance of the top financial officer of the County as the custodian of financial matters in the County:

226. (2) ........ the accounting officer of a county public entity is accountable to the county assembly for its financial management.

229. (8) Within three months after receiving an audit report, ...... the county assembly shall debate and consider the report and take appropriate action.

NB. Article 226, 229 above are part of Chapter 12 - Public Finance of the New Constitution. Public Finance is discussed under its link on the main page of this website.

 

 


 

 

County Assembly: Responsibilities

 

As would be expected, the Assembly's main role is to make County law for the executive to implement its obligations:

185. (2) A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule.

The Assembly must play the role of trusted custodian of County natural resources and public assets:

(4) A county assembly may receive and approve plans and policies for— (a) the management and exploitation of the county’s resources; and (b) the development and management of its infrastructure and institutions.

So determined were the people of Kenya to go beyond mere cosmetic decentralisation that they ensured that amendments to the Constitution affecting the dear question of the devolved Counties must be considered by their local legislative Assemblies as well as be put to a national referendum. Chapter 16 - Amendments to this Constitution:

255. (1) A proposed amendment to this Constitution shall be enacted in accordance with ......., and approved ....... by a referendum, if the amendment relates to any of the following matters— (i) the objects, principles and structure of devolved government; ........

257. (1) An amendment to this Constitution may be proposed by a popular initiative ........
(5) If the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.
(6) If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.
(7) If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay.

 

 

 

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.

 


 

 

References:

1. Nyanjom, O (2011). "Devolution in Kenya's new Constitution." Constitution Working Paper Series No 4. Society for International Development, SID.

2. The Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

3. Job Nyasimi Momanyi & 2 others v AG & another [2009] eKLR, Constitutional Application 68 of 2009 in the High Court in Kisii before Justice David Musinga. National Council for Law Reporting. The Attorney General.

4. Ouma, S A (2011). "Challenges of Nationhood: Identities, citizenship and belonging under Kenya’s new Constitution". Constitution Working Paper Series No 10. Society for International Development, SID.

5. The Intergovernmental Relations Act 2012. National Council for Law Reporting. The Attorney General.

6. Kirira, N (2011). "Public Finance under Kenya's new Constitution". Constitutional Working Paper Series No. 5. Society for International Development, SID.

7. Transition to Devolved Government Act, 2012. National Council for Law Reporting. The Attorney General.

8. County Government Act 2012. National Council for Law Reporting. The Attorney General.

9. Urban Areas and Cities Act, 2011. National Council for Law Reporting. The Attorney General.

10. Lakin, J and Kinuthia, J (2013). "Fair Play: Inequality Across Kenya’s Counties and What It Means for Revenue Sharing". International Budget Partnership Kenya website. Accessed October 2013.

11. "Presidency, governors on the spot over devolution". Daily Nation online March 25, 2014. Retrieved 26 March 2014.

12. "Mombasa MCAs support Joho on devolving port". The Star online May 16, 2014. Retrieved May 20, 2014.

13. Website of the Parliament of Kenya. The Senate. Retrieved June 2014.

14. Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2014] eKLR. CIVIL APPLICATION NO. NYR. 8 OF 2014 (UR 6/2014). National Council for Law Reporting. The Attorney General.

15. Martin Nyaga Wambora County Government of Embu v Speaker, County Assembly of Embu & 4 others [2014] eKLR. PETITION NO. 1 OF 2014. National Council for Law Reporting. The Attorney General.

16. Elachi, B (2014). "Rationalisation is a touchy subject, and we’d all do well to leave politics out of it." Daily Nation online Opinion. Retrieved July 19, 2014.

17. "Truth behind delay in parastatal reforms, months after President Kenyatta’s directive". In2EA online article. Retrieved July 2014.

18. Ole-Shitemi, Shitemi (2014). Website and blog. Accessed July 2014.

19. Murkommen, K 2014. "Why referendum debate is founded on distorted understanding of devolution". Daily Nation online Opinion. Retrieved October 12, 2014.

20. Council Of Governors & 6 others v Senate [2015] eKLR. Petition No.413 of 2014.  National Council for Law Reporting. The Attorney General.

21. Stephen Nendela v County Assembly of Bungoma & 4 others [2014] eKLR. National Council for Law Reporting. The Attorney General.

22. "By refusing to dissolve Makueni County Government, Uhuru was within the law." Daily Nation online Opinion. Retrieved September 25, 2015.

23. Collins Odote, 2015. "Lessons from failed bid to suspend Makueni". Business Daily Africa online Opinion and Analysis. Retrieved September 25, 2015.

24. Preston Chitere, Ludeki Chweya, Japhet Masya, Arne Tostensen, Kamotho Waiganjo (2006). Kenya Constitutional Documents: A Comparative Analysis.

 

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