To execute these diverse roles, the national government must as a matter of course, complete the establishment of a bureaucracy to oversee the new functions. It is not hard to see that the de-facto head of this bureaucracy will, most probably, be the Secretary to the Cabinet. Excerpts from Chapter Nine - The Executive, Part 3 - The Cabinet, Article 154:
154. (1) ........ the office of Secretary to the Cabinet ....is an office in the public service.
(3) The Secretary to the Cabinet shall— (a) have charge of the Cabinet office; (b) be responsible, subject to the directions of the Cabinet, for arranging the business, and keeping the minutes, of the Cabinet; (c) convey the decisions of the Cabinet to the appropriate persons or authorities; and (d) have other functions as directed by the Cabinet.
Other lower levels within the PA serving in the Counties would be born from the office of the Secretary to the Cabinet, and the Cabinet Secretary in charge of national government coordination.
Unsurprisingly, administrative and related conflicts of interest around the composition of the PA were to emerge later when the then President appointed (later changed to 'deployment of') officers in the PA by the name of County Commissioners in May 2012. The appointments were swiftly challenged in court through two separate petitions, High Court Petition No. 208 of 2012 Centre for Education Rights Awareness & Others-v- The Attorney General and Misc. Appl. Judicial Review No 207 of 2012, Patrick Njuguna & Another –v- The Attorney General.
The ruling of the Court upon consolidation of the two cases, was that these positions are unconstitutional and hence the appointments illegal: "66. In light of the above matters, I find and hold as follows: i). The President had no power to appoint or deploy County Commissioners as he purported to do under Gazette Notice No. 6604 of 11th May 2012 and Gazette Notice No. 6937 of 23rd May 2012. ii). Even if the President had had power to make such appointments or deployments, the appointments or deployments violated Article 10 and 27 of the Constitution. iii). The purported deployment of County Commissioners by Gazette Notice No. 6937 of 23rd May 2012 was therefore unconstitutional, null and void." (eKLR,).
This ruling was well-received by the wider public for obvious reasons; it still loathed the PA and any authority that represented it, and (misguidedly, I should add), wanted it done away with as soon as possible.
The Office of the President did not however obey that ruling, asking the Commissioners to remain at their duty stations while it quickly appealed the High Court's ruling. Meanwhile, upon assumption of office of the newly-elected Governors in April 2013, the calls to recall the County Commissioners had gone a note higher with some of the Governors openly defying the communication of the Commissioners and demanding that they vacate their offices and residences as they were uncomfortable with a 'parallel' center of power within their jurisdiction.
As it were, the High Court ruling was set aside by the higher Court in June 2013 and the Commissioners have remained in office to date. Of note was the observation by the Appeals Court that the Commissioners were appointed under a transitional period of time as the National Government Co-ordination Act No. 1 of 2013 had not come into effect. The Appeals Court observed that the appointment "....... was done pursuant to the executive powers vested in the President under the old constitutional clauses that were saved in the new constitution."
About a year later in May 2014, the issue of a powerful PA returned. This time round, the gripe was with the President's executive order No 3 of May 15, 2014 requiring the County Commissioners to pull their weight especially with regards to security matters at a time when the country was grappling with frequent crimes of terrorism in urban areas of Nairobi and Mombasa, and escalating inter-ethnic and inter-clan clashes in several parts of the country. The President's executive order aka "Strengthening of the National Government Co-ordination Function at the County Level" also tasked respective Commissioners to fast-track the formation of a County bureaucracy to be known as the National Government Service Delivery Co-ordination Committee in accordance the provisions of the National Government Co-ordination Act No. 1 of 2013 Part II - National Government Co-ordination Framework - Powers of the President to establish Committees, excerpts:
14. (1) The Cabinet Secretary may, with the approval of the President and by a notice in the Gazette, establish national government service delivery co-ordination units.
One other co-ordination unit to emerge from the Act was the office of the Regional Coordinator (RC) in charge of a cluster of Counties within which a particular national government service such as security, spanned. Through administrative aggregation of reporting lines, this higher office unit of an RC, also ensures that the Cabinet Secretary isn't burdened with having to deal with a whole host of 47 Counties on a day-to-day basis.
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.
In short, it must continue to exist, nonetheless.
To help us summarise this discussion on the place and role of the Provincial Administration Obuya Bagaka says, "Despite the often polarizing debates and criticism of the PA, the new Constitutional order provides the provincial administrator a deserved but not necessarily desirable level of visibility. The PA system of administration may become the nexus between the central and county governments and the coordinator of programmes that cut across county boundaries. As much as critics may castigate the PA as a colonial evil, under the 2010 Constitution the provincial administrator (by any other name) will be the necessary evil needed to ensure smooth running of central government policies and programmes at the local level" (Bagaka, 2011).
Although earlier on, we noted that the calls to immediately do away with the PA were legion, we can safely say as well, without contradiction, that these calls were premature. The Committee of Experts who drafted the New Constitution were not unaware of the central role played by a body such as the PA and therefore wisely chose to provision for a lengthy (5 year) restructuring period for the unit, as opposed to its complete removal. They (the Experts) must have also taken cognisanse of the PA's invaluable experience which would be central to facilitating a smooth transition from a centralised to a devolved government system. Excerpt from 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.
The PA (albeit in a reformed and restructured state) is here to stay. Indeed, a Transition Authority (TA) agency was constituted by the Tenth Parliament to coordinate the transition (phased transfer) to devolved government. Members of the Authority were sworn-in on 3 July 2012, having been appointed in June 2012 following the enactment of The Transition to Devolved Government Act, 2012 in February 2012. Six members of the Authority were seconded from State departments responsible for planning, finance, public service, justice, etc., pointing to the importance and significance of the vast experience in the PA's staff.
The first task of the TA was therefore to develop a register of what assets belong to whom between the national and county governments. It was also greatly involved in capacity building in the counties so they could begin to take baby steps on their way to performing their devolved functions. Indeed, a few months into the establishment of devolved governments after the March 2013 General Elections, various professional bodies - while chastising the PA - stood up to protest the hasty and unconstitutional manner in which devolved functions were being transferred to the Counties. Some like the doctors went to court demanding that their transfer be made only in accordance with the Transition to Devolved Government Act 2012, that prohibits the transfer of devolved functions in the absence of adequate capacity to manage the same.
The TA will "....... work in close consultation and collaboration with Government ministries, departments and Agencies and local Authorities aimed at building on on-going transition and devolution initiatives ......." (TA website).
In conclusion, the point is that without a PA (or an equivalent bureaucracy(ies)), the central government would be without a local presence and may well be unable to effectively advance and implement national policies at the County. As we have seen in the previous sections, the PA will be expected to effectively synchronise the working relationship between the national and county governments as well as that across county governments. To that end, it must therefore shed its old image of an overbearing schoolmaster with a nefarious attitude in order to gain acceptance at the local level. Needles to say, it must respect the new executive authority of devolution structures under county governments and Governors to prevent unnecessary conflicts and duplication of roles and hence avoid wastage of public resources.