Roles and Functions

 

There is no question that some of the traditional functions and responsibilities of the PA must be taken over by the county governments under the new constitutional dispensation. Article 15 of the Sixth Schedule - Transitional and Consequential Provisions:

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 under Article 185.
(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; ........

For example, the PA was empowered by the County Governments Public Finance Management Transition Act of 2012 with the support of the Transition Authority, to lay the foundation and facilitate the establishment of the capacity of newly-formed Counties to prepare to manage and administer County Treasuries. Evidently, that Act foresaw that the handover of functions would require an experienced hand; and which body is better placed to oversee this complex process than the PA?

Let us consider excerpts from 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, ..... 2. County health services, ...... 3. Control of air pollution, noise pollution, other public nuisances ....... 4. Cultural activities, public entertainment and public amenities, including— (c) liquor licensing; 5. County transport, including— (a) county roads; .... (d) public road transport; and (e) ferries and harbours ...... 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. 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 ....... 12. ...... 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.

When one considers the number, range, and complexity of functions expected eventually to be fully taken over by inexperienced County governments, it is easy to see that the PA cannot simply be wished away. Its mandate (at least in capacity terms) appears to have remained the same, if not enhanced by the new constitutional order. Furthermore, we mustn't forget that Kenya's devolution is of a limited nature and that central government has retained many of its old responsibilities.

Going forward though, the PA will need to undergo considerable restructuring, and especially in how it exercises its soft power in order to function effectively and be in tandem with prevailing social changes at the devolved units. Perhaps it will also acquire a new name to reflect its new status and role. It must continue to exist, nonetheless. Indeed the PA remains the means by which central government will cooperate with county governments. Two articles from Chapter Eleven - Devolved Government - provide the spirit and circumstances of this cooperation. Part 3 - Functions and Powers of County Governments. Article 187:

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.

And from Part 5 - Relationships between governments - Article 190: 

190. (1) Parliament shall by legislation ensure that county governments have adequate support to enable them to perform their functions.

"Adequate support" here refers to much more than just budget allocations; it refers to technical assistance, security, logistics, personnel etc., from specialised State Organs. Monitoring and evaluation of how funds and various types of technical assistance from central to county governments is utilised will best be performed by the PA. The PA will also play a critical stop-gap role in the event that a county government is suspended by the President.

As mentioned above, the central government retains certain duties and responsibilities towards its citizens as assigned to it by the New Constitution. These functions are listed in Part 1 - National Government, under the Fourth Schedule of the New Constitution. Excerpts:

Part 1—National Government
2. The use of international waters and water resources. 4. The relationship between religion and state. 5. Language policy and the promotion of official and local languages. 6. National defence and the use of the national defence services. 7. Police services, including— (a)........ use of police services; (b) criminal law; and (c) correctional services. 8. Courts. 9. National economic policy and planning. 11. National statistics and data on population, the economy and society generally. 13. Labour standards. 14. Consumer protection, including standards for social security and ....... 15. Education policy, standards, curricula, examinations and the granting of university charters. 16. Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions. 17. Promotion of sports and sports education. 18. Transport and communications, including, in particular— (a) road traffic; (b) the construction and operation of national trunk roads; (c) standards for the construction and maintenance of other roads by counties; (d) railways;
(e) pipelines; (f) marine navigation; (g) civil aviation; ........ (i) postal services; (j) telecommunications; and (k) radio and television broadcasting. 19. National public works. 20. Housing policy. 21. General principles of land planning and the co-ordination of planning by the counties. 22. Protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular— (a) fishing, hunting and gathering; (b) protection of animals and wildlife; (c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and (d) energy policy. 23. National referral health facilities. 24. Disaster management. 25. Ancient and historical monuments of national importance. 26. National elections. 28. Health policy. 29. Agricultural policy. 30. Veterinary policy. 31. Energy policy including electricity and gas reticulation and energy regulation. 32. Capacity building and technical assistance to the counties. 33. Public investment. 34. National betting, casinos and other forms of gambling. 35. Tourism policy and development.

 

 

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