Devolution - FES Devolution Devolution System made Simple A. Understanding Devolution And The...

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Transcript of Devolution - FES Devolution Devolution System made Simple A. Understanding Devolution And The...

  • Devolution System made Simple

    A Popular Version of County Governance System

  • Devolution System made Simple 1

    Devolution System made Simple

    A Popular Version of County Governance System

    November 2012

  • Devolution System made Simple2

  • Devolution System made Simple 3

    Introduction

    Devolution is one of the major changes that the Constitution adopted by Kenyans at the referendum held on 4th August 2010 and promulgated on 27th August 2010 has made to the arrangement of government in Kenya. It is a unique and new experience to a majority of Kenyans. This is in spite of the fact that Kenya experimented with a similar system at independence.

    This flier has been produced to make the new devolved system easy to understand and to avoid confusion which normally comes with very many interpretations from equally very many sources.

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    A. Understanding Devolution And The Devolved System

    What is Devolution?

    The devolution that Kenya has adopted is provided for this in Article 1 (3) and (4); Article 6 (1) and (2); Chapter Eleven and in the First Schedule and Fourth Schedule of the Constitution of Kenya 2010.

    Devolution is the proper distribution of State functions and powers amongst and between the three arms of government. The three arms of government are: -

    > The Legislature or the law and policy making body;> The Executive or the arm that implements laws and policies

    made by the Legislature. The Executive also runs the day to day operations of government; and

    > The Judiciary, which resolves disputes between the Legislature and Executive, between and amongst the citizens and also interprets and enforces the laws.

    In a genuine devolved system, the distribution of functions and powers of government is set out by the supreme law of a State, that is the Constitution.

    What are the characteristics of Kenyas devolution?

    Therearetwolevelsofgovernmentcreatedonequalbasisby the Constitution. These are the County and National governments.

    TheConstitutiondividesKenyaintoforty-seven(47)countieswith clearly defined geographical boundaries. This is found in Article 6 (1) and in the First Schedule. The boundaries of each of the counties has been drawn by the Independent Electoral and Boundaries Commission (IEBC) as provided for by the Constitution.

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    AlthoughtheConstitutionhascreatedtwolevelsofgovernmentand forty-seven counties, Kenya is still a unitary state.

    Althoughthetwolevelsaredistinct,theyarerequiredtorespecteach other and work in harmony. This is provided for in Article 6 (2) of the Constitution. This means that relationship between the two must be consultative and cooperative.

    NeithertheCountynortheNationalGovernmentisseniororsuperior to the other.

    Bothlevelsofgovernmenthavepowertosecureresources Thetwogovernmentsandinstitutionsestablishedunderthem

    are required by the Constitution to ensure participation by citizens in their affairs.

    Thetwolevelshavedemocraticallyelectedrepresentativesandautonomous political authority. The elected representatives are for Senate, National Assembly, the President, the County AssemblyandtheGovernorineachoftheforty-sevencounties.

    Thetwolevelsofgovernmentshaveclearmandatetoprovidea range of significant services. These are outlined in the Fourth Schedule of the Constitution.

    Thetwogovernmentscanbetakentocourtorcantakeothersto court. This is to say they are body corporate.

    Thetwogovernmentscanholdbankaccountsandemploystaff. Theyhavethepowertocontrolownbudgetandaccountsand

    the ability to raise own revenue. Thecountygovernmentshavebeengivenconstitutional

    authority to make and enforce local legislation. Citizensequalaccesstoavailableresourcesateitherlevelis

    guaranteed.

    What are the objects and principles of devolution in the Constitution?

    The Objects (Article 174)

    Promotedemocraticandaccountableexerciseofpower; Fosternationalunitybyrecognizingdiversity; Givepowersofself-governancetothepeopleandenhancethe

    participation of the people in the exercise of the powers of the

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    State and in making decisions affecting them; Recognizetherightofcommunitiestomanagetheirownaffairs

    and to further their development; Protectandpromotetheinterestsandrightsofminoritiesand

    marginalized communities; Promotesocialandeconomicdevelopmentandtheprovisionof

    proximate, easily accessible services throughout Kenya; Ensureequitablesharingofnationalandlocalresources

    throughout Kenya; FacilitatethedecentralizationofStateorgans,theirfunctions

    and services, from the capital of Kenya; and Enhancechecksandbalancesandtheseparationofpowers.

    The Principles (Article 175)

    Countygovernmentsshallbebasedondemocraticprinciplesand the separation of powers;

    Countygovernmentsshallhavereliablesourcesofrevenuetoenable them to govern and deliver services effectively; and

    Nomorethantwo-thirdsofthemembersofrepresentativebodies in each county government shall be of the same gender.

    Are all the counties the same?

    There are three three broad types of counties, namely: > RuralCounties > Counties with both rural and urban characters; and > Urban and City Counties

    How many levels of devolved units does the Constitution and the law provide for?

    Therearefourmainlevelswithroomforafifthlevelthroughcounty legislation.

    UnderArticle176(2)theConstitutionprovidesthateverycounty government shall decentralize its functions and the

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    provision of its services to the extent that it is efficient and practicable to do so. This means that county governments have power to establish other units below the County.

    TheCountyGovernmentsAct,2012providesforthefollowinglevels: -

    > TheCountylevel,whoseheadistheGovernor.> The Sub- County level, which is the same level as the

    electoral constituency for members of parliament and is headed by a Sub-County Administrator appointed by the GovernorandapprovedbytheCountyAssembly

    > The Ward level, which is represented by an elected County Assembly Member and headed by a Ward Administrator appointedbytheGovernorandapprovedbytheCountyAssembly

    > The Village level, headed by a Village Administrator appointedbytheGovernorandapprovedbytheCountyAssembly; and

    > TheVillageCouncilappointedbytheGovernorthroughtheVillage Administrator and approved by the County Assembly.

    > TheCountyGovernmentActallowstheCountyGovernmenttofurtherdecentralizeitsfunctionsandservices below the village with the approval of the County Assembly.

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    B. Devolved Structures

    How does the Constitution structure the County Government?

    TheCountyGovernmenthastwoarms,namelytheLegislature,which is the County Assembly and the County Executive Committee, which is the Executive arm.

    TheJudiciary,whichisusuallythethirdarmofgovernmentisashared institution and has its operations within counties.

    Illustration 1:CountyGovernmentTheCountyAssemblyAdministration is overseen by the County Assembly Service Board, which hire staff and takes care of their welfare and thos e of the County Assembly Members. The County Administration is overseen by the County Public Service Board

    How is the County Assembly established?

    Thisisdonethroughdirectandindirectelections. ThedirectelectionsarewhereregisteredvotersinaCountygot

    to a polling station and cast votes for their preferred candidates for County Assembly Members.

    ForpurposesofdirectelectionofCountyAssemblyMembers,each County has been divided into Wards by the Independent Electoral and Boundaries Commission (IEBC).

    TheseWardsarenotthesamewardswewereusedtoin the Local Authorities. They are bigger. In addition, the representatives we used to elect to the Local Authorities were known as Councilors because they were representing us in Councils.

    ThenameCouncilorthereforecomesfromonewhositsinaCouncil.

    Ontheotherhand,theoneelectedtorepresentusinthenewCounty Assembly is known as County Assembly Member. They

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    are members of parliament at the County level, because the County Assembly is a local parliament since it also makes laws.

    What are the types of candidates to be directly elected from the County Wards?

    Therearetwotypesofcandidatestobeelecteddirectlyatthe Ward level. These are candidates presented or sponsored by political parties and those contesting as independent candidates.

    ForeitherofthecandidatestobeallowedbytheIEBCtorunfor elections as County Assembly Member, they have to be supported by at least five hundred (500) registered voters in the Ward. Candidates sponsored by a political party must have their forms signed by members of their parties only and not members of other parties.

    IndependentcandidatesmustalsoNOTbelongtoapoliticalparty and their nomination forms must be signed by supporters who are not members of any political party.

    What are the indirect ways through which County Assembly Members are elected?

    This is done through Party Lists as follows:

    SpecialSeatmemberstomeettheprincipleoftwo-thirdsintheConstitution.

    Marginalizedgroups,includingPersonswithDisabilities,minorities and youth

    The number of members from these categories is determined by the IEBC after all the results of the County Assembly elections have been announced. The number of seats in each case will depend on the number of seats a political party has won during the direct elections. Those running as independent candidates are no