Provincial Administration under the New Constitution

 

 

Open. Accountable. Responsible

 

Contents
Introduction

Authority

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.

System

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.

Composition

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.

 

Introduction

 

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.

 

 

Authority

 

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.

 

 


 

 

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.

 

 


 

 

Composition

 

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. 

 

 


 

 

 References:

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

2. Obuya Bagaka, 2011. "Restructuring the Provincial Administration: An Insider's View". Constitution Working Paper Series No 3. Society for International Development, SID.

3. County Governments Public Finance Management Transition Act of 2012. National Council for Law Reporting. The Attorney General.

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

5. Website of the Transition Authority. Accessed March 2013.

6. Centre For Rights Education & Awareness(CREAW) & 8 others v Attorney General & another [2012] eKLR. National Council for Law Reporting. The Attorney General. (Retrieved April 2013.)

7. Minister For Internal Security And Provincial Administration V Centre For Rights Education & Awareness (Creaw Caucus For Women’s Leadership (Caucus) & 7 Others [2013] EKLR. National Council for Law Reporting. The Attorney General. (Retrieved May 2014.)

8. "Strengthening of the National Government Co-ordination Function at the County Level". Executive Order No 3 of 2014. Government Printer. Accessed May 2014. 

9. National Government Co-ordination Act No. 1 of 2013. National Council for Law Reporting. The Attorney General.

10. Report Submitted to Parliament on Status of Restructuring the Provincial Administration. CIC website. Accessed October 2015.

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