Provincial Administration under the New Constitution
Open. Accountable. Responsible
The Provincial Administration (PA) will, like in the past, represent the national executive at the Counties to implement and to oversee the policies of the national government.
By 2015, the PA is expected to establish its own bureaucracy in all the 47 Counties of Kenya representing the various State departments that constitute the Cabinet. It is however expected in that time, to undergo a re-birth in order to conform to the democratic ideals of the Constitution of Kenya 2010.
Each County bureaucracy will be headed by a County Commissioner (or such other official) and is expected to represent the face of the whole Country even as it serves within a County.
The history of the the Provincial Administration (PA) predates Kenya's independence. As a creature of the colonial administration, the PA was designed to basically champion colonial policies and enforce its decisions:
"The British government, under the policy of indirect rule, used the existing local governance structures to penetrate and govern the local communities. Through various ordinances, these local governance systems were reoriented and empowered to effectively implement the policies and programmes of the colonial Government.
"The Village Headmen Ordinance of 1902 provided for the appointment of official Headmen in charge of a village or a group of villages. These were responsible for maintaining order, repairing roads and determining petty native cases.
"The Native Authority Ordinance of 1912 enhanced the powers of the Headmen by putting them in charge of larger administrative units. While the Native Authority Ordinance of 1937 gave them additional powers to control manufacture of liquor, spread of animal diseases and plant pests, control of water supplies, regulation of grazing and cutting of trees. The Ordinance also gave them authority to issue orders to technical government departments on operational matte. Furthermore the Headmen were given powers to collect taxes which were an important revenue stream for the colonial government. This made them the main executive agency for furthering the activities of government.
"The position of Governor and Commander in Chief was created in 1906 to replace the Commissioner of the East African Protectorate. However, the challenge of integrating various communities with the multiplicity and heterogeneity of the tribes of Kenya called for an administration that could bring all these tribal “governments” together under one administration and as one nation. Subsequently, a reorganization of the colonial government was carried out in 1929 that established 10 administrative units known as Provinces, each headed by a Provincial Commissioner, for effective coordination and management of government affairs throughout the country. It ushered in the system of administration known us Provincial Administration.
"Smaller administrative units comprising of districts and divisions were created and placed under white District Commissioners and District Officers to oversee the administration of local governance structures headed by Chiefs and Sub-Chiefs respectively. These officers were charged with the responsibility of maintaining law and order, crime prevention, quasi-judicial responsibilities of resolving family and land disputes, environmental conservation, promotion of health and education." (CIC, 2015).
In short, under the old post-independence constitutional dispensation, the PA was represented by the Provincial Commissioner in each of the eight provinces, a District Commissioner at the district level, a District Officer at the division level and a chief and sub-chief at the location and sub-location (village) levels respectively.
The PA also had its own police unit, namely the Administration Police command.
Understandably, the first post-independence Government of Kenya happily embraced the Provincial Administration:
"After independence, the new government required an institution that could hold the country together by promoting nationhood and statehood and, to provide a mechanism for close administration with direct chain of command from the top to bottom. Provincial administration was therefore, retained and strengthened to provide the necessary linkages between the central Government and the grassroots." (CIC, 2015).
As an arm of government, the PA came to represent everything negative in government and in the public service like oppression, repression, and lack of public accountability. Through the PA, corruption thrived at all levels of government service delivery, and so unsurprisingly, the views of the public during the clamour for a new constitution was to call for the scrapping of this department of government. To be fair, the government of the day had embarked on reforms within the PA as far back as 2002:
"Following the 2002 general elections, the new government which come to power on a platform of reforms, embarked on the reform of government institutions in accordance with its election manifesto. The thinking then was that most government institutions had become moribund, unresponsive and were therefore no longer serving the interests of the Kenyan people. The government then initiated a comprehensive reform programme whose objective was to improve service delivery by Government institutions. In Provincial Administration, the reforms targeted administrative officers, Chiefs and
Assistant Chiefs and were carried out under the Governance, Justice, Law and Order Sector (GJLOS) reform programme.
"The reforms had a substantial impact in transforming the institution of Provincial Administration. A survey carried out in 2006 by GJLOS showed that
the office of the chief was the most improved in terms of service delivery. The survey further, showed that over 70% of civil disputes were arbitrated by
Provincial Administration." (CIC, 2015).
Today, the PA has remained as a department in the Office of the President tasked with coordinating and implementing government policy at the local administrative level. In other words, just like in the past, it has remained as the link between inter-ministerial functions at the regions as well as at the grassroots.
The PA derives its authority from the mere fact that its very nature is 'a system of administration' and nothing else. Consider the Sixth Schedule - Transitional and Consequential Provisions, Part 4 - Devolved Government, Article 17:
17. Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.
According to the Commission for the Implementation of the Constitution CIC, the vagueness in Article 17 above meant there would be different views on the 'how' of the contemplated end-product of the restructuring. "The meaning and scope of restructuring of PA envisaged by Section 17 of the
Sixth Schedule to the Constitution has been a subject of a lot of public debate because of the different interpretations given to it by various interested parties. To some people restructuring is interpreted to mean ‘scrapping’, ‘abolition’ or ‘disbanding’ Provincial Administration. Others hold the view that restructuring entails re-organizing’ Provincial Administration to place it under the County Government to coordinate its functions. Those who hold this view, argue that Provincial Administrators should report directly to the Governor to avoid a situation of parallel systems of administration at the county level.
"Finally, there are those who hold the view that restructuring entails ‘reorganization’ of Provincial Administration in terms of its functions, administrative procedures, institutional, policy and legislative frameworks. This group support the retention of PA but calls for the reforms of the institution. The fact that the constitution does not define the parameters of restructuring PA, explain why there are many interpretations."
The emerging consensus is that the PA will essentially continue to exist, perhaps under a different name, (but as an extension of the National Executive), as Article 17, does not in any way, demand for its abolition.