Devolved systems and governance in the context of many countries including Kenya essentially means devolution. Devolution is a form of decentralization. However, devolution is a more substantial and solid transfer of both political and economic powers from the national to lower levels of governance. According to ICJ (2013, 5) devolution is the process of transferring decision-making and implementation powers, functions, responsibilities and resources to elected local governance structures.
According to ICJ (2013, 5) devolution in Kenya is based on the supremacy of the Constitution, sovereignty of the people and the principle of public participation. Supremacy of the Constitution means that the devolution is no longer optional and discretional. It is solidly established by the supreme law and everyone including state and private entities must be bound by that reality.
Further, the fact that devolution is buttressed by the sovereign power of the people means that whatever governance aspirations and commitments are done at both national and counties levels of governance shall be done on behalf of and for the people. Indeed Article one of the constitution clearly stipulates that all state organs exercise their powers as delegated by the Kenyan people. Kenyans have a choice to exercise these powers either directly or indirectly through state organs – at both levels of government.
It is also important to note that devolution in Kenya is also based on a public participation constitutional principle. That is to say that although state organs at both levels of government exercise delegated powers from the people, the same people do retain some residual powers and constitutional rights to be engaged on all major decisions made on their behalf by those elected or appointed into state offices.
This paper will consider the devolution architecture in Kenya with a specific bias on its overall and legal architecture.
The Conceptual basis of devolution in Kenya
According to the World Bank report (n.d) on decentralization and sub-national economics:
When governments devolve functions, they transfer authority for decision-making, finance, and management to quasi-autonomous units of local government with corporate status. Devolution usually transfers responsibilities for services to municipalities that elect their own mayors and councils, raise their own revenues, and have independent authority to make investment decisions. In a devolved system, local governments have clear and legally recognized geographical boundaries over which they exercise authority and within which they perform public functions.
The devolved form of government in Kenya is very ambitious because it collapsed three previous levels of administrations into one level. That is to say, the current counties resulted from the collapse of former provincial administrations, local authorities and national functions that were being done at the local levels
Devolution in Kenya would need to be seen in the context of Kenyans historical clamor for equatable distribution of national resources. For a time, it was perceived that central government had skewed arrangement where certain regions in Kenya did benefit more from state resources and developmental programmes. Further, devolution clamor was informed by Kenya being a very diverse country with over forty two ethnic groups; diverse climatic realities with northern Kenya being arid and semi arid and other areas being arable among other political and economic realities (World Bank: 2012, 4).
Actually, the strong provisions for devolution in the new Constitution were a key source of public support for the draft of the Constitution. The World Bank (2012, 5) has indicated that just under 20 percent of supporters of the new Constitution did so because of the strong provisions for devolution; this is the second most common response after a simple desire for change, which measured at just over 20 percent.
The actual philosophy and reason behind Kenyans’ majority support for devolution can be deduced from the constitution itself. A consideration of the objectives and principles of devolution as clearly itemized in article 174 and 175 of the constitution would make these aspirations of Kenyans more clearer.
The objectives of devolution in Kenya
The objectives of devolution essentially outline the sovereign reasons why Kenyans overwhelmingly voted for the new constitution whose one of the major highlights are devolution promises and commitments. These objectives include:
a) To promote democratic and accountable exercise of power;
b) To foster national unity by recognizing 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 recognize 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 marginalized 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 decentralization of State organs, their functions and services, from the capital of Kenya; and,
i) To enhance checks and balances and the separation of powers.
Principles of Devolved Government
Several principles of devolution need to be considered when implementing devolution. These are embedded in the three principles stated in Article 175 of the Constitution. Therefore, County governments established under the Constitution would, as a constitutional obligation, 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.
The legal framework and devolution
It is important to note that devolution is now a constitutional reality. The provisions in the constitution on devolution are actually insulated and cannot be amended by parliament. Any amendment on this chapter would require a direct mandate from the people of Kenya through a referendum. Further, the constitution obligated parliament to pass specific laws that would cement both the spirit and letter of devolution into the Kenyan governance architecture. The legal framework on devolution include: –
1. The Constitution
The constitution is the main legal backbone of the entire devolution architecture. It outlines the objectives and principles of devolution, the actual governance structures at this level, the relationship between national and county governments, the functions that have been devolved to counties among others. All other laws borrow and derive their authority from the constitution.
2. The County Governments Act, 2012
This is the main legislation after the constitution. This law outlines the entire framework of the constitution including the two arms of government at the county level; the county assembly and executive.
The County Governments Act, 2012 stipulates the structure, functions and operations of the county assembly including its membership, election and removal of the speaker as well as the entire staffing arrangement of the assembly.
The Act also provides for the entire arrangement of the county executive including the appointment, and removal, procedures of county executive committee members, chief officers, county secretaries and other senior staff at that level. The law further provides for the powers and functions of the governor and his or her deputy.
The law also provides, pursuant to Article 200 of the Constitution, for the manner of nomination or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates; the procedure of assemblies and executive committees including the chairing and frequency of meetings, quorums and voting; and the suspension of assemblies and executive committees.
It is important to note that this law came into effect immediately after the last general election. It therefore follows that the law would need to be re-evaluated and possible amendments included to make it more contextual and speak to prevailing realities. For example, the law does not envision a desired complete dichotomy of staffing between the county assembly and county executive at county level. Although the law provides for both county assembly service board as well as county public service board to recruit and manage staff, it does not completely give space for the two boards to conclusively deliver on their mandate with absolute independence from the other.
Intergovernmental Relations Act, No. 2 of 2012
This law provides for a framework for consultation and co-operation between the national and county governments. This law appreciates the fact that Kenya remains as one country. The counties and national government are expected to consult and work together for the wider good and service delivery to the citizens.
The law establishes institutional structures and mechanisms for intergovernmental relations as well as a framework for the inclusive consideration of any matter that may affect relations between the two levels of government and amongst county governments.
Evidently, this law would need to be reviewed. Although the law provides for the summit where the President and county governors should meet and resolve any dispute that may arise between the two levels of government, there has persistent wrangles between the national and county governments. The summit has not met as regularly as would be expected and therefore the possible reason these disputes have not been resolved promptly explained by Roselyne Obala (2014). A review of this law would, for example, include the minimum number of meetings the summit would meet among other matters.
Transition to Devolved Government Act, No. 1 of 2012
This law provides for a legal and institutional framework for a coordinated transition to the devolved system of government while ensuring continued delivery of services to citizens. Principally, it provides for establishment and operations of Transition Authority.
The Transition Authority (TA) is established under section four of the Act as a statutory body with the mandate of facilitating and coordinating the transition to the devolved system of government. The Authority is expected to execute its mandate within three years following the first General Election held on March 4, 2013. The Transition Authority has seventeen members, nine of whom are full time and a secretariat.
The Transition Authority has issued many advisory instruments to county governments including on appointments of the executive committee members; classification of urban areas and cities and transfer and transition of county and national assets at the county level.
The Transition Authority has limited tenure as provided for under this law. The Transition Authority’s residual mandate will essentially transit into possibly an inter-ministerial committee housed under the Ministry of Devolution.
National Government Co-Ordination Act, No. 1 of 2013
This Act, passed in 2013, provides for the establishment of an administrative and institutional framework at the national, county and decentralized units to ensure access to national government services in all parts of the republic. The law also provides for the overall coordination and administration of the national government functions both at national and county levels.
This law has not necessarily eased the tension between the national and county governments. Indeed there has been a heated national discourse around the relationship between the two levels of government. Obuya Bagaka (2010) in light of this tension has said:-
‘The Provincial Administration will also need to re-orient its officials towards the broader concept of devolution, and more specifically re-train them on the implications of the politics of devolution. As laid out in the 2010 Constitution, Kenya’s politico-administrative system will comprise the national and county governments headed by politicians. At the county level, politicians such as governors will be accountable to their electorate and thus will not be controlled by the central government.’
Moving forward, there will be need to re-evaluate the relationship and inter-linkages between the national and county governments and how this can be strengthened and systematized.
Public Finance Management Act, 2012
This is an extremely important law on public finance and management. This law provides that public officers who are given responsibility for managing the finances are accountable to the public for the management of those finances through parliament and county assemblies.
It will be important to consider this law moving forward to establish whether its water-tight in ensuring accountability of public finance and management.
Other over-arching frameworks
1. National Assembly and Senate
The constitution establishes other enabling framework whose main is to promote and protect devolution and devolved governments. These include both the National Assembly and Senate.
Articles 109 to 113 of the Constitution notes that senate has a specific mandate to protect devolved governments. The constitution provides that the main role of senators is to represent the counties, while also serving to protect the interests of the counties and their governments. The senate also determines the allocation of national revenue among counties, as provided for in article 217, and exercises oversight over national revenue allocated to the county governments.
There is ongoing national discourse on whether the senate actually is protecting the counties. According to Jane Goin (2014):
“Eventually we shall go to the Supreme Court for constitutional interpretation on the functions of the assemblies vis-a-vis the functions of the Senate because the Senate is calling the executives; we are also calling the executive asking the same question,”
2. Constitutional commissions and Independent Offices.
The Commissions and Independent offices are listed under article 248 of the Constitution. These commissions and independent offices have a bearing, in one way or the other, on devolved governments. The actual interface between the commissions and independent offices is not within the purview of this paper. These commissions and independent offices include:
a) Commission for the Implementation of the Constitution (CIC);
b) Commission on Revenue Allocation (CRA);
c) Independent Electoral and Boundaries Commission (IEBC);
d) Judicial Service Commission (JSC);
e) Kenya National Human Rights and Equality Commission
f) National Land Commission (NLC);
g) National Police Service Commission (NPSC);
h) Parliamentary Service Commission (PSC);
i) Public Service Commission (PSC);
j) Salaries and Remuneration Commission (SRC); and,
k) Teachers Service Commission (TSC).
3. The Independent offices are:
This office is provided for in the new constitution. The office has statutory objective and role of ensuring that resources are used and applied for the good of the public. The office ensures that there is value for money and its prudent use.
b) Controller of Budget.
This office is also provided for under the new constitution. Its constitutional objective and role is broadly to ensure that there is prudent and legal formulation and implementation of budgets by both national and county governments.
Devolved governments are new. The counties only came in place in 2013 after the general elections. This means that these five years are likely to be bumpy and a lot more experiential. However, the expectations of Kenyans on service delivery remains high. This is after having largely a central government since independence in 1963.
It has been noted in this paper that many laws and arrangements put in place are still being tried and tested. It follows therefore that these laws will need to be reviewed and possibly updated based on real experiences on the ground moving forward. An opportune time to evaluate and review the devolution laws and arrangement would possibly be after the lapse of this electoral tenure, in 2017.
This paper has sought to outline the over-arching devolved government architecture and processes. Other and further studies would need to be done to specifically deal with various aspects of the devolved government in a more comprehensive manner.
1. Kenya Section of the International Commission of Jurists, 2013. Handbook of Devolution. ICJ. Nairobi
2. The World Bank Group. (n.d.). Decentralization and Sub-National Regional Economics. available at:http://www1.worldbank.org/publicsector/decentralisation/admin.htm)
3. World Bank (2012) Devolution Without Disruption; Pathways to a successful new Kenya. World Bank. Nairobi
4. Roselyne Obala (2014) Insecurity dominates Uhuru, governors third Summit meeting. Standard newspaper. Available at:http://www.sde.co.ke/pulse/article/2000144072/insecurity-dominates-uhuru-governors-third-summit-meeting?pageNo=2
5. Jane Goin (2014) Senate usurping role of county assemblies, say MCAs. Available at: http://www.capitalfm.co.ke/news/2014/10/senate-usurping-role-of-county-assemblies-say-mcas/
6. Obuya Bogaka (2009) Restructuring the Provincial Administration : An Insider’s View. SID. Nairobi.
7. Republic of Kenya (2010). The Constitution of Kenya. Government Printers. Nairobi
8. Republic of Kenya (2014) Laikipia County Public Participation Act. Government Printers. Nairobi
Author: Hon. Patrick Mariru
Speaker: Laikipia County