DEVOLUTION OF POWER AND THE NEW STRATEGIC STATE

8/14/2019 DEVOLUTION OF POWER AND THE NEW STRATEGIC STATE

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DEVOLUTION OF POWER AND THE NEW STRATEGICSTATE:

A CASE OF ENGAGED GOVERNANCE AND DELIBERATIVEDEMOCRACY IN A MULTI-LEVEL GOVERNMENT

IN KENYA

By Kinyua T. Kihara


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This paper seeks to propose a model structure of governance for Kenya based on

devolution of power from the highly centralist government to a system of co-

responsibility between the centre and the periphery through an engagement process of

decision making, as an Exit Option in the current governance and constitutional cross

roads the country is facing.

At the core of this proposed model of governance is the strategic state that is

characterized by devolution of authority to bureaucrats and citizens in an interactive

forum under the tutelage of a more independent efficient, informed and involved

legislature.

Kinyua T. Kihara

2008, Moi University, Eldoret, Kenya.

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Contents

A MODEL GOVERNANCE STRUCTURE FOR A MULTI-LEVEL

GOVERNMENT IN KENYA.......................................................................... .........4

Executive Authority ................................................................................ ..................5

Legislation and Representation ....................................................................... ........10

Bureaucracies ..................................................................................................... .....18

Devolved Government Structure ............................................................................22

The Strategic State .................................................................................... ..............26

Auditor General .............................................................................. ........................30

Comptroller General ........................................................................ .......................30

Ombudsman ................................................................................................. ...........31

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A MODEL GOVERNANCE STRUCTURE FOR A MULTI-

LEVEL GOVERNMENT IN KENYA

Proper devolution in an ideal multi-level structure of government should be characterised by

an engagement process that includes large-scale policy task involvement of groups,

individuals and civil societies with power being redistributed through shared decision making

responsibilities exemplified by task interdependence between various levels of government

from the national to the grassroots level.

Such a system of government reflects the embodiment of the principles of good governance

that includes broad participation and representation in decision making; responsive, efficient

and effective result-oriented institutions and processes; accountability and transparency at all

levels of government institutions and agencies; a shared sense of mutuality and understanding

of the context and circumstances prevailing in the geopolitical setting; fairness and equity of

opportunity for all persons.

This can only be realised with the adoption of an institutional approach to governance that

entrusts political power and the role of governance in credible, reliable and legitimate

institutions of government. In Kenya, credibility and reliability is only possible with the

restricting of the politicians role in governance and in controlling the government machinery.

However, such reduction of the politicians control of government may generate a risk of

legitimacy of the institutions as people mandated. As such, a balance must be struck between

the quests for professionalism and the legitimacy of the institutions from whence they draw

the power, authority and mandate to serve the people.

A new constitutional dispensation will thus require reconciling the need for professionalism

in governance by giving technocrats and public servants a greater role in governance in order

to tap into their tacit knowledge on state issues as well as ensuring the legitimacy of the

actions of the institutions as espousal of the peoples will. The other should complement this

with the truncating and diffraction of executive power amongst various state organs with each

organ acting as a check on the use of power. Under this new proposed system, governance is

subsumed under the following; executive authority, legislation and representation,

bureaucracies, devolved government structure and strategic state.

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Executive Authority

The executive arm of the government exercises this power where it is shared between the

President and the Cabinet under the direction of the Prime Minister.

The presidential executive comprises of the Department of Defence, the National SecurityCommand Central, the Executive Office of the President and the Office of Public

Administration and Management.

These executive agencies are directly answerable to the President. As such, the President has

the ultimate say on policies advocated by these agencies.

The Prime Minister exercises executive authority and power through his Cabinet-government

where all executive decisions on matters of government policy are made collectively rather

than unilaterally.

On the other hand, the Central Public Bureau, the highest organ in the public service,

exercises unfettered discretion in exercising its veto power derived from its residual interest

in matters of public service delivery as well as making and ensuring compliance of public

officials with the public service code.

President

He is the Head of State and Commander-in-Chief of the Armed Forces. He is empowered to

assent to bills passed by Parliament into law. He also holds the prerogative of mercy.

The President is indirectly elected by the Legislature where the Upper House delivers the

determinant vote i.e. acts as an electoral college and the Lower House delivers the popular

vote.

The Lower House vote is such that each member has one vote to which he is entitled and thus

the Lower House delivers a single vote per member.

In the Upper House however, the bloc voting system is followed where each delegation

representing a particular interest group, irrespective of its size delivers one vote. In this caseto win the Presidency the winner has to garner the highest number of delegations in the house

rather than delegates per delegation from each interest group. Such that, one may have more

delegates by for instance winning the vote of a few large delegations but lose the Presidency

to the one with fewer delegates but commands the confidence of more delegations in the

house.

Once elected, the President serves for one term of seven years. Once his seven-year term

elapses, the incumbent President is not eligible to contest the Presidency again.

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He exercises executive authority over various executive Government agencies including the

Department of Defence, the National Security Command Central, the Executive Office of the

President and the Office of Public Administration and Management as well as government

agencies that may be called to serve under the presidential executive prerogative on key

national issues under the direction of the Executive Office of the President.

The President is obligated to summon both Houses of Parliament and address them in a joint

session setting out the operations of his office at the beginning of every year for the year just

ended.

Department of Defence

It is an executive agency under the presidential executive prerogative responsible for the

management and direction of the national military and defence personnel and installations as

well as the determination and implementation of defence policies.

It works closely with the Commissariat, headed by the Minister for Defence, to reconcile and

harmonize the national defence policies of the Department of Defence with the budgetary

allocations and the general funding levels for defence programmes by the Commissariat.

It is headed by the Chief of General Staff who is directly accountable to the President as the

Commander-in-Chief of the Armed Forces including all national defence forces and all

disciplined forces in the country that may be called to actual national service.

National Security Command Central

It is an executive agency falling under the presidential executive prerogative. It has the

ultimate authority as the executive oversight body over the state intelligence services and all

other special, tactical, elite, covert forces operating within and without Kenya in the service

of Kenya.

It is also a policy recommending body to the cabinet-government on matters of national

security, which recommendations being based on security status reports received, from

intelligence operatives and other covert corps.

It comprises the President, the Deputy President, key national security agencies chiefs,

defence chiefs as well as security experts and other presidential advisors.

Executive Office of the President

It is an executive agency directly under the presidential executive prerogative whose

responsibilities include policy formulation, direction, management, implementation and

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review over key national issues that require long-term and sustained special attention and

resources on a grand scale including for instance HIV/AIDS scourge, terrorism and Vision

2030.

In order to discharge its mandate it is empowered to exercise overall direction over any of the

government agencies whose operations includes dealing with or tackling any of the key

national issues.

The agency is made up of a team of support staff working under the direction of the

Executive Chief of Staff with the responsibility of directing and co-ordinating as well as

overseeing the operations of government agencies called in for service under the presidential

executive prerogative on such key national issues.

Office of Public Administration and Management

It is also an executive agency under the direction of the President as well through the

presidential executive prerogative, responsible for overseeing the running of the public

service.

Its mandate includes policy review, direction and recommendation to the Central Public

Bureau in respect of public service operations and personnel management. In essence it

works very closely with the Central Public Bureau in discharging its duties.

Its decisions as well as recommendations are very persuasive and influential on the actionsand operations of the Central Public Bureau as a national public service planning manual and

policy guide.

It is made up of the President, the Deputy President, Secretary to the Cabinet, the Attorney

General, public service heads and public workers representatives.

The Secretary to the Cabinet acts in the capacity of an agent of the cabinet, where he also sits,

with the responsibility of reporting to the cabinet on the changes and developments in public

service policies as well as stating the position of the Cabinet-government position as to issues

arising in the delivery of public service and also making contributions during consultative

meetings under the presidential executive prerogative on behalf of the Cabinet-government.

The Attorney General on the other hand acts in his capacity as the chief legal advisor to the

government.

Prime Minister

He is the head of Government and a popularly elected member of the Lower House of

Parliament and is also the leader of the party with the majority seats in the Lower House.

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such that a ministerial directive should be in response to a properly defined contingency well

within the mandate and jurisdiction of the ministry in question.

Once appointed, cabinet ministers can only be removed by a joint house resolution or their

seats falling vacant or as a result of the dissolution of the Lower House.

Central Public Bureau

It is the highest organ of the public service entrusted with the running and overseeing of the

public service. It is also the appointing authority of all senior public officials in the

government ministries including the deputy ministers, permanent secretaries and

departmental directors.

Its responsibilities include public service planning and policy formulation and management,

standard setting, monitoring of public service delivery, management of public service

personnel as well as regulation of public service activities.

In regard to policy issues in the public service, the Central Public Bureau may undertake

policy reviews of the public service activities and thereby institute and oversee reforms

therein for conformity with the global best practices in public service delivery.

It sets standards expected and crucial for quality in service delivery in the public sector and

maintains them by ensuring proper personnel training and accreditation as well as strict

compliance with the set standards across the board, from the national to the local levelbureaucracies.

It may invoke disciplinary measures on errant public officials at the national level and also sit

to hear appeals and petitions of unfair or uncalled for treatment and/or disciplinary measures

and punishment of public workers in local level bureaucracies.

The Central Public Bureau is also responsible for approving, revising, regulating and funding

of public sector programmes and departmental administrative operations of government

ministries.

The Central Public Bureau is headed by commissioners from a shortlist of candidates

compiled by parliamentary committee and approved by the Lower House of Parliament.

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Legislation and Representation

Bicameral Parliament

Parliament plays a big role in governance as a representative body of the people and thus can

be viewed as embodying public policy and public will. As such, parliament should embrace

broad participation and representation as well as inclusion of all stakeholders for it to have a

legitimate mandate and authority in expressing the will of the people. It should also be

informed and directly involved in governance so as to effectively monitor the other arms of

government on behalf of the public.

In order to do this effectively, parliament must be impartial and rise above vested partisan

interests. This calls for it to have in-built safeguards to check its excesses as well as some

level of perpetuity and continuity.

Achievement of the above is most practical in a bicameral set up i.e. parliament composed of

two houses mainly the Upper House and the lower houses. The bicameral parliament will

reflect broad representation and participation by encompassing both group representation and

popular representation.

As such, the Upper House, composed of representatives of special interest groups offers

group representation while the lower house, composed of popularly elected members from

constituencies is for popular representation. Whilst the lower house is dissolved in order for

the members to go back for a fresh mandate from the electorate, the Upper House remains in

session and thus is perpetual, creating a sense of continuity for parliament business.

Parliament may exercise authority as peoples vigilance through its direct involvement in

governance and policy making through its committees. Such that, the involvement of the joint

house committees directly in policy making will bring about informed deliberations on

government policy matters especially due to professional input from the members of the

Upper House whose membership is drawn from special interest groups which includeprofessional bodies as well as other stakeholders experienced in the matters at hand.

This kind of engagement is bound to ensure the appropriateness, applicability and suitability

of the policy in respect to its consistency with public policy.

The public accounts committee empowered to scrutinise the national budgetary proposals

from the finance ministry, making recommendations after thorough evaluation makes for

responsible handling of public funds.

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Group Representation

This is envisaged in the Upper House of Parliament which is made up of representatives from

special interest groups including professional bodies, religious groups, non-government

organisations among other organisations and associations of persons sharing a common

interest or a shared peculiarity that is not repulsive or repugnant to public moral and justice.

The allocation of seats in the Upper House is determined proportionately to the direct

membership base of each group represented in the chambers.

The membership base of each group determines its representative capacity thus the larger the

organisation or group in terms of its membership base the larger its delegation in the Upper

House.

However, their shall be an Upper House limit as well as a lower limit on the number of

delegates per interest group depending on the total number of delegations to sit in the

chambers as against the number of available seats in the chambers.

The representative capacity of the Upper House is dependent on the all-inclusive broad and

diverse array of interests affecting a majority of or the entire national population across the

nation being effectively represented in the House.

On the other hand, there shall be reserved special seats for umbrella bodies i.e. organisations

without direct membership or whose membership is made up of other organisations.

The Upper House shall have a steering committee made up of delegates representing

umbrella organisations as well as super delegates drawn from common interest groups

delegations in the House that are not allied or represented by any umbrella organisation.

The steering committee is responsible for setting the agenda for the House at any particular

sitting. In addition to conducting House business it is empowered to determine the

membership of House committees and of House members in joint House committees.

The Upper House has no legislative authority however, it can exercise veto power of

suspension of a bill passed in the Lower House by passing a resolution to that effect.

Conversely, the House can alternatively pass a resolution supporting the passing of the bill in

which case the President will have to assent to it.

In passing any resolution or taking a vote, each delegation in the House wields a single vote

and thus votes en bloc.

In this case, the side that carries the day is the one voted for by a majority of the delegates

through a combination of delegations yielding a majority of the delegates.

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It is the popular vote rather than the proportional vote that plays the role of determining the

outcome of a resolution in the Upper House.

However, in respect to the election of the President, the reverse is true where the winner of

the Presidency is determined by a proportional rather than by a popular vote.

In determining the Presidency it is the number of delegations rather than the number of

delegates yielded by the various delegations in the House that sets apart the winner from the

loser.

The Upper House remains perpetual even upon the dissolution of the Lower House since the

respective organisations and group represented determine the tenure of service for the

delegates in the Upper House.

The groups so represented in the Upper House have the responsibility of determining the

tenure i.e. the period constituting a single term and the number of terms their respective

representatives can serve as delegates in the Upper House. However, once a delegate is

mandated accordingly, having been sworn in as a delegate and begins to serve his term, he

cannot be removed or dismissed from that position unilaterally.

Members in the Upper House are mandated to sit and take part in House committee

deliberations including the Departmental Joint House Select Committees where though

primarily representing the interests of their principal organisations in their individual

capacities, they also act as and are held out as members of the Upper House collectively.

The Upper House also has the mandate of forming its own ad-hoc House working committees

to look into various issues of public concern and give advisory opinions through the

publishing of working papers on subjects of inquiry.

Such papers may be used persuasively in determining the passing of a bill(s) touching on the

subject of the working paper in the Upper House.

They may also be used to guide in the drafting of a bill for instance, a bill originating from a

joint house select committee.

Popular Representation

This is envisaged in the Lower House of Parliament composed of popularly elected

representatives of constituencies.

Each member is elected by constituents on a particular political party ticket to represent the

constituency in the Lower House. Each constituency has one representative member of the

Lower House of Parliament i.e. the person who garnered the majority votes cast by his

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constituents during the General Elections where each constituent, registered as a voter was

entitled to and thus cast a single vote to determine their preferred candidate to represent them

from a list of other parliamentary contestants contesting the parliamentary seat in that

constituency.

The Lower House of Parliament may essentially be viewed as the stage for popularity

contests between various political parties as well as a political bargaining arena for the

political class, which may often result in political horse-trading thus alignments and

realignments of parties and their members in the House.

Such political alignments then come down to two major alignments that result in the two

opposing sides that sit on either side of the House Speaker i.e. the Government side and

opposition.

The party with the majority seats in the House or a coalition of political parties commanding

a majority of the seats in the Lower House forms the Government and the majority party

leader becomes the Prime Minister.

He then moves on to constitute his cabinet by picking and appointing members of parliament

from his party or coalition of parties to serve as ministers in the cabinet thus forming the

Cabinet-government.

The Prime Minister and the cabinet members occupy the Government front bench in the

Lower House while the rest of the Government-allied parliamentarians occupy the

backbenches on the Government side of the floor.

On the other hand, the leader of the minority party or coalition of parties in the House

becomes the Leader of Official Opposition.

He moves on to form his own shadow cabinet from amongst members of the opposition in the

House. The Leader of Official Opposition and his shadow cabinet sit on the opposition front

bench as a government in waiting.

The Lower House is mandated to play the role of the peoples watchdog on the Cabinet-

government where the opposition keeps the Government side on its feet by raising

parliamentary questions during parliament sessions. Such questions are directed at the

relevant cabinet members depending on the subject of the query and the Prime Minister as

well.

The Lower House is entrusted with the legislative authority whereby bills may originate, be

debated and if passed in the Lower House proceed to the Upper House for scrutiny before

being assented to by the President to become law.

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A bill may be tabled in the Lower House as a Government bill, private bill or be forwarded

by a parliamentary committee especially for instance the Departmental Joint House Select

Committees.

Once laid before the house, the bill goes through the first reading followed by a vote from the

House members which vote if favourable sees the bill proceed to the second stage which is

the second reading followed by another vote after which following a favourable outcome the

bill is assigned a standing committee for a thorough scrutiny before the final reading where a

favourable vote is the last hurdle for the passing of the bill in the Lower House.

During the voting process to determine the passing of a bill in the Lower House, each

Member of Parliament is entitled to a single vote which he may cast in favour of the bill in

which case the vote is an aye or against the bill in which case the vote is a nay.

Where the votes cast in favour of the bill (ayes) outweigh those cast against the bill (nays) the

bill is passed, however, when the reverse occurs the bill is defeated.

The Speaker of the Lower House acts as the figure head of the Parliament. He is the official

representative of Parliament, empowered to conduct business as well as speak on its behalf

during for instance inter-parliamentary functions locally and abroad.

He is also responsible for moderating and regulating debates in the Lower House.

The Lower House may also establish ad-hoc house committees as well as standing

committees whose membership is determined on party strength of numbers in the House.

The Members of Parliament also sit and participate in joint house committees.

The Lower House unlike the Upper House, is however, not perpetual.

The Lower House has a life-span of four years after which it is dissolved so that the Members

of Parliament can go back to the constituencies they were representing to seek another fresh

mandate from their constituents to represent them for another four-year term in the next

Parliament which is constituted on conclusion of the General Elections and the subsequent

declaration of the election winners.

Departmental Joint House Select Committees

They are made up of members from both Houses of Parliament where the membership from

the Upper House is determined by the Steering Committee and the membership from the

Lower House is based on party strength in the House i.e. the number of seats a particular

party commands in the House.

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It is a parliamentary oversight body responsible for supervising and overseeing matters of

policy in the respective government ministry assigned to that particular committee.

They scrutinise government policies on particular public concerns including for instance

health, education and so on.

In this regard, their duties include departmental policy review and revision and thus reserve

the ultimate say in the determination of departmental policies.

These committees are deliberative forums where following a conflict between cabinet

policies in regard to the ministry or a ministerial directive with the public service policy

directives such departmental policy issues are referred to the relevant Departmental Joint

House Select Committee where they are deliberated after which the committee makes a

ruling on the issue.

In making such a ruling the concerned committee inquires into the appropriateness and the

effects of a particular policy as guided by public policy and preferences and in so doing may

make adjustments and alterations to the policy in question as part of its policy revision

mandate or even ultimately prepare a bill and lay it before the House for enactment, to stand

in for the inadequacies plaguing that particular policy directive.

Such a ruling is binding on the stakeholders and parties to the dispute such that the

declaration by the committee or the terms set out thereof determine the departmental policy to

be followed in that particular ministry.

They are also responsible for monitoring the implementation and the ultimate application of

bills passed to become law that directly impact on the operations of the ministries assigned to

them.

In this regard the committees are empowered to summon the Minister concerned to brief the

panel on the progress and compliance rate of his ministry with a particular newly enacted law

directly impacting on the operations of the ministry.

They also sponsor bills, which they table before the Lower House to be debated into law.

Where a Departmental Joint House Select Committee is the originator of a bill which it

brings to the House, it is incumbent upon the concerned committee to do a follow up on the

bill through its debate and subsequent passing in the Lower House as well as in the Upper

House finally to its enactment as law on receiving Presidential assent.

In doing this, these committees may indulge their ranks to canvass for the support of the bill

from among members drawn from both Houses of Parliament.

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This may also entail detailing to the House members the effects, suitability and applicability

of the proposed bill for its enactment.

It is also the duty of the concerned committee to hold civic education seminars for the public

to educate the people as well as other stakeholders on the application of the newly enacted

law.

Standing Committees

These are broad-spectrum parliamentary committees that comprise Members of Parliament in

the Lower House of Parliament.

They are large committees whose membership, though determined on the basis of party

strength of the numbers of House members within its ranks, the committee membership

criteria is rather categorical and particular on inclusiveness of all political parties and

interests represented in the House to be included and involved in its composition and affairs.

The mandate of these committees includes in-depth scrutiny of bills at the committee stage of

the legislative process in the Lower House.

At this stage, a bill which has passed the initial legislative stages i.e. the first and second

readings, is taken up by a Standing Committee which sits and deliberates, analysing the bill;

its implications and applications for a comprehensive understanding and appreciation of the

intended role of the bill once it is passed into law.The committees may then make recommendations for adjustments and amendments on the

bill or simply have it proceed to the final stage in its original form.

These committees work very closely with the originators of the bill in question.

Public Accounts Committee

This is the parliamentary watchdog on matters pertaining public finances. Its membership

comprises of Members of Parliament from Lower House.

It works closely with the Office of the Comptroller General as well as that of the Auditor

General in exercising parliamentary oversight over public finance resources.

Its mandate includes conducting pre-budget scrutiny and analysis on the proposed budgetary

allocations from the Ministry of Finance as well as monitoring of the actual application of

public funds in the public sector.

This committee is also vested with the authority to formulate and recommend public-

spending policy to guide the House in evaluating the budget for endorsement.

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To discharge its mandate effectively, the committee is empowered to require the Comptroller

General to submit status reports on the progress and process of disbursements of public funds

to the allocated portfolios as well as the resultant output stemming from the application of the

funds.

The quality, priority and level of the output or projected output and the cost-benefits arising

thereof from the application of budgetary allocations inform the public-spending policy to be

recommended to the House by the Public Accounts Committee that will determine the

chances for a safe passage of the budget in the House.

The Public Accounts Committee in formulating and recommending the public-spending

policy to be followed is guided by the reports and recommendations of the Comptroller

General as well as that of the Auditor General, not excluding however, the committees

capacity to co-opt the services of accredited experts in the relevant fields.

The Public Accounts Committee also has the responsibility of receiving the performance and

financial audit reports from the Auditor General on the general performance, financial

position and the application of public funds allocated to public sector bodies before

forwarding the same to the floor of the Lower House for debate and deliberation on the

contents and recommendations set out therein.

Public Administration CommitteeThis is a parliamentary watchdog committee on public sector bodies and organisations

throughout the entire public sector from the public service at the national level to the local

level bureaucracies including the quasi government organisations (QUANGOS).

Its mandate includes oversight, inquiry and review of the entire public sector programmes

and policy outcomes.

In this regard the committee is empowered to make inquiries into the operations and dealings

of various public bodies confining itself however, to the policy outcomes in administrative

and actual service delivery matters in its endeavours.

Its jurisdiction extends to include even the executive agencies under the presidential

executive prerogative as well as all government ministries and agencies. The findings of its

inquiries determine the level and availability of funding, any particular public sector

programme or government operation and undertakings will be entitled to.

The Public Administration Committee therefore also aids in shaping the public-spending

policies and as such works closely in conjunction with the Public Accounts Committee.

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The bureaucracies are responsible for public service delivery including for instance putting

up and maintaining infrastructure and public utilities as well as implementing government

policies for the benefit of the citizens of the nation.

In respect to implementation of government policies, these bureaucracies may be categorised

according to their pecking order as such:

The government ministries form what may be referred to as the vanguard of the state in

public service delivery and policy initiatives while the government agencies and the sub-

national quasi-government organisations form the rearguard in the state policy cycle.

In this regard, the government ministries are the primary policy vehicles of the state, with the

sub-national quasi-government organisations being secondary government policy vehicles

and the government agencies coming in as alternative government policy vehicles in the

realm of state policy and planning.

However, though the government ministries revel in their splendid role and primacy as key

state machinery in public service delivery, the rearguard comprising the government agencies

at the national level and the quasi-government organisations at the sub-national level form the

infantry and are primarily responsible for the implementation and the resultant realisation of

government policy objectives and actual public service delivery on the ground.

In a nutshell, these bureaucracies are the cogwheels that run the government machinery for

which they use the public funds in the form of state revenue to oil the running process of

government.

Central Public Bureau

The Central Public Bureau is the highest public service organ concerned with the formulation

of public service policy and programmes in all the government ministries as well as

monitoring and regulation of public sector activities by government agencies and quasi-

government organisations at the sub-national level.

It also holds a residual interest in all matters of public service delivery and as such is vested

with the power to veto any measures taken in respect to public service delivery mechanisms

which it deems unfit.

In exercising overall oversight over public service delivery, the Central Public Bureau is

mandated to formulate, approve, regulate, revise and fund public sector programmes at the

national level through the administrative channel of government ministries or at the sub-

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national level through the quasi-government organisations in which it holds a residual interest

as well.

It is also mandated with the hiring of ministry officials including senior government officers

like the deputy minister, permanent secretary and the departmental directors in the ministries.

It sets the standards and discipline that guide the ministries in their operations where the

deputy minister and the permanent secretary as well are guided by the public service

directives of the Central Public Bureau in discharging their duties.

Its residual interest in the public service is such that, it can veto policy directives from the

cabinet or the cabinet minister concerned which veto can only be overruled by a ruling of the

respective Departmental Joint House Select Committee, after exhaustive deliberations on the

policy matter.

As such, the deputy minister being the head of policy issues at the ministry must ensure

policies from the cabinet and ministerial directives are consistent with the guiding principles

and practices of the Central Public Bureau before assimilating the same in the ministry.

The Central Public Bureau is headed by commissioners from a shortlist of candidates

compiled by the Public Administration Committee and approved by the Lower House of

Parliament.

Government MinistriesThey are divided along various public service segments for instance health, internal security,

defence among others i.e. they are rather departmentalised in nature. They are concerned with

policy issues in their respective segments. They are responsible for implementing central

government policies in the areas they cover. They also oversee and co-ordinate the activities

of other government agencies in their segment. They form the channels through which the

central government funds its operations.

The government ministry is the primary and most vital vessel for the implementation and theeventual realisation of government objectives in public service delivery.

The respective cabinet minister who gives general direction in the running of the ministry and

also communicates the government policy in respect to that ministry heads the ministry.

The cabinet minister is empowered to make ministerial directives in respect to public

concerns specifically falling within the ambit of his ministry.

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He also oversees and supervises the implementation of necessary laws that have a direct

implication on his ministry which responsibility he is directly accountable to parliament as

well as government policies in his ministry.

The ministry being the cornerstone of public service delivery and the realisation of

government policy objectives, the cabinet minister is vested with the power to establish

various quasi-government organisations meant to aid in building capacities of the local

governments in public service delivery.

Such quasi-government organisations are however limited in their scope of operations to the

specific departmental objectives assigned by the respective ministry in a particular sub-

national region-specific scale of operations.

In doing this, the minister is guided by a General Act of Parliament establishing the

parameters of creation and operations of the quasi-government organisations as well as

determining the ministers responsibility in creation and operations of such bodies.

The deputy minister, a public official appointed through the Central Public Bureau, oversees

policy issues in the ministry and is thus responsible for restating government policy from the

cabinet and aligning it with the practices and principles of the Central Public Bureau before

the eventual implementation of the policy by the ministry.

The Permanent Secretary is the administrative head in the ministry whose responsibility is

limited to the routine management and the day-to-day running of the ministry. He is a

bureaucrat appointed by the Central Public Bureau.

The director in the ministry is the co-ordinator and chief liaison officer of the ministry

responsible for co-ordinating ministry operations and liases with government agencies in a

bid to align their activities with the objectives of the ministry.

Government Agencies

They are autonomous specialised government institutions comprising for instance theinvestigative and forensic agencies, national health referral facilities, scientific and research

facilities, regulatory bodies, state revenue authorities, National security and intelligence

facilities, institutions of higher learning and other highly-specialised task-mandated public

bodies and corporations.

They are part and parcel of the state bureaucracy at the national level. They are operationally

independent responsible for their own policy formulation and implementation in their field of

expertise and specialisation.

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They are however required to liaise with the departmental directors in the respective

government portfolios for co-ordination and alignment of their operations with the

government policies and public service objectives.

They constitute the alternative policy vehicle for the government as they are operationally

independent of the government and may only be put to task by parliament through the Public

Administration Committee on their policy outcomes.

Their scale of operations covers the entire nation where they are empowered to exercise

unfettered executive authority on all matters falling within their scope of operations

countrywide.

This includes a nationwide residual executive discretionary right on issues falling within their

area of specialisation throughout the nation for instance the Criminal Investigation

Department has jurisdiction over all cases involving forensic investigations.

Directors nominated by the Prime Minister and appointed by the President after being vetted

by Parliament head these institutions.

The directors of the agencies act independently without undue influence from any persons or

authority and enjoy a security of tenure. However, they may be summoned by their respective

Departmental Joint House Select Committees to give information during investigative

inquiries by the committees.

Devolved Government Structure

A multi-level structure of government is the best and most practical means for devolving state

power and resources to the lowest and most basic level of the social order. For the proper

functioning and effectiveness of such a government each level of government must have

some considerable measure of autonomy in running the affairs of its jurisdiction. To

effectively utilise their autonomy, sub-national governments must build adequate capacities in

terms of resources and skills in running their territories.

In fully developed federal states the sub-national governments exercise exclusive control over

the affairs of their territorial jurisdictions, which is as a result of their ability to be self-reliant

and run their own programmes and projects independent of the central government. These

regional governments tend to have reliable revenue streams within their territories as well as

long tradition of self-governance thus their steadfastness.

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However in the case of Kenya where resource distribution is highly skewed with most

regions lacking financial as well as technical capacities to run a fully fledged sub-national

government, a pseudo-federalist approach to governance would be the most appropriate.

In this case there would be semi-autonomous regional meso-governments exercising

unfettered discretion over local level prioritisation and resource mobilisation with the central

government being a mere facilitator and enabler of the sub-national outfits i.e. the rise of the

strategic state.

Regional Governments

It is made up of constituency-level meso-governments in the form of Constituency

Development Committees and the metropolitan governments i.e. city councils and the

composite amalgamated local authorities. The constituency committees are mandated with

constituency-level prioritisation and resource mobilisation. They set the development agenda

at the grass roots level.

Constituency Development Committees

They are committees at the constituency level mandated with the setting of the development

agendas of the constituencies. Such development includes the setting up of various public

utilities and infrastructure as well as the staffing exercises of various public service personnel

at the constituency-level for instance the police under the direction and guidance of the

legislation-enabled; Ministry-established; Central Public Bureau-mandated and local

government-authorised respective Quasi-government organisation which is responsible for

capacity building of these meso-governments in public service delivery through technical

assistance and Central Public Bureau-sourced funding for such public sector programmes.

Essentially, the Constituency Development Committee sets and runs the constituency

development programme for which it exercises complete autonomy. However, their plans and

projects are subjected to set standards of the CPB whilst the funding of the projects is done

through the Local Committees in the Office of the Comptroller General.

Each constituency is allocated a fixed constituency-specific amount of money through the

constitution-entrenched Constituency Development Fund. All constituencies are entitled to

the CDF as well as the right to keep and utilise whatever proceeds they make from the

employment of the CDF funds while maintaining accounts of such endeavours with the local

committees of the Office of the Comptroller General, which are responsible for

procurements, and disbursement of public funds at the constituency level.

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As such, the Constituency Development Committee is only vested with micro-level economic

planning and prioritisation responsibilities where it unilaterally decides and determines the

specific application of the allocated Constituency Development Funds but does not handle the

funds and the actual application of the funds is entrusted to the local committee of that

constituency in the Office of the Comptroller General.

Once the projects are completed, the Constituency developments Committees are not

mandated to run and manage the public installations they put up.

The running and routine management and maintenance of all public facilities at the local

level are the responsibility of the local authorities in that area.

The members of the committees are nominated by a parliamentary candidate as part of his

campaign for the parliamentary seat. The election of the parliamentary candidate also serves

as an endorsement of his team, which then becomes the Constituency Development

Committee for that particular constituency. However, failure of the Constituency

Development Committee to deliver could lead to a recall parliamentary election.

Such a recall parliamentary by-election is possible with the collection of the necessary

number of signatures proportionate to the population of the constituency bearing a truly

representative constituency outlook compiled in an election petition which once delivered

and verified by the Speaker of the Lower House then obliges the Speaker to declare the

particular parliamentary seat vacant paving the way for a recall election.

Local Authorities

They include the city, municipal, county, and other urban councils and authorities.

They are responsible for all urban centres as well as outlying areas that lay adjacent to these

urban centres.

The local authorities are relatively autonomous administrative and planning bodies at the

local level.

They are also charged with law enforcement and provision of public and social services as

well as the running and managing of the public utilities in their territorial jurisdictions. In

addition to their day-to-day duties and responsibilities, the local authorities are also mandated

to manage all utilities and facilities set up by the development committees of the

constituencies. This is considering the implicit knowledge and the experience not overlooking

the technical capacities and expertise they possess in public utilities management.

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In managing such utilities the local authorities are not entitled to any grants or any direct

funding from the state however, they are empowered to collect revenues as well as user

charges accruing within their jurisdictions from individuals and institutions operating in those

areas.

They may also receive grants from other sources including through private financial

partnership programmes with other local authorities abroad as well as other organisations.

The local government are however, entitled to state funds through the Quasi-government

organisations operating in that particular territory of the local government.

The quasi-government organisations are specialised infra national departmental capacity-

building bodies which give technical assistance and government funding for sector-specific

programmes being instituted and run by the local government for instance education, health

and so on as well as the constituency-level constituency development initiatives of the

Constituency Development Committee, but with the authorisation of the local government in

that area.

The local authorities are autonomous entities exercising their discretion independently

without any undue influence.

The councillors are elected to serve for a term of four years before seeking a fresh mandate at

the general elections.

The mayoral election coincides with the parliamentary elections and the winner in the

election becomes the mayor. However, mayoral elections are only conducted from the

municipal council level to the city council i.e. in the metropolitan governments only.

The local authorities below the municipal council level, save for the composite local

authorities comprising two county councils and the enjoined urban authorities in the absence

of a proximate-situated municipal council, may only elect their councillors who following

their election are then supposed to organise and conduct aldermanic elections to elect

aldermen from among themselves to sit as members of the Executive Committee of the

municipal council to which such urban council may be enjoined as a cost-cutting measure in

respect to administrative and service delivery expenses.

The Executive Committee headed by the Mayor is the body vested with the executive

authority at the sub-national level as a metropolitan cabinet-government and thus mandated to

run the local government comprising the municipal council and the enjoined adjacent urban

authorities as well as the outlying areas forming the frontiers of the local government

collectively operating as a sub-national quasi-confederacy.

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The Executive Committee, once constituted, is then responsible for the appointment of local

administrators who are assigned to manage the affairs of the various enjoined urban

authorities and outlying frontiers under the supervision of the councillors from the assigned

areas.

Local authorities may only be enjoined to the municipal council or in the absence of such

municipal council two county councils and the nearby urban authorities may be merged to

form a composite local government equal in standing to a metropolitan government

comprising municipal quasi-confederacies or the city councils.

In the city councils the councillors may elect anyone to become an alderman without one

having to be a councillor as a prerequisite for election as an alderman.

However, only aldermen and the Mayor constitute the Executive Committee of the local

government. Once elected at the aldermanic election one remains an alderman and member of

the Executive Committee for the entire four-year term.

The inhabitants of the local government popularly elect mayors. In the case of the municipal

councils the people in the enjoined local authorities and the outlying frontier regions take part

in the election of the mayors as well.

The Strategic State

The state has in the past played housekeeping roles and offsetting functions, which having

been rather interventionist in nature, required minimal input from the citizenry.

These rather interventionist roles of the state brought about the bulky, ineffective and rather

intrusive big brother state, which has been aptly described as a rather arthritic octopus and an

inept leviathan.

Contemporary statecraft requires the state to go far beyond its mundane traditional

interventionist roles and become involved as a broker and partner in participatory planning

and policymaking.

This calls for an integrative and interactive regime, where the citizen has a recognized voice

on matters of substance and procedure in the public realm through the principle of

subsidiarity, which requires that power be devolved to the lowest local institutions closest to

the citizen and capable of handling public service tasks.

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Assimilation and utilization of the concept of subsidiarity would see drastic reduction in the

vertical hierarchical power in governance thus increasing in a meaningful way the potential

for broad participation.

This would bring about a trend towards the demise of the big brother state with its rather

reductionist, exclusive and tokenistic approach to public service delivery borne by the hugely

centralized bureaucratic hierarchical line departments that are characterized by a highly top-

down decision making and administrative process that does not take into account the

appropriateness and effects of the public service programmes in respect to public policy,

priorities and preferences in a particular setting.

This thus leads to misalignment of the public service outputs with public needs resulting in

major distortions of expected and projected outcomes from the public service delivery

programmes and policies.

The new and lean strategic state is founded on the premise that the central state focuses on

the norms and the periphery on delivery. In which case the central state is responsible for the

norms, standards, general directions and values while the devolved unit takes the lead in the

process of ministering to the public and of delivering a service well adapted to its needs.

Such a governance framework requires dynamic policy process inter-linkages and co-

ordination of centre-periphery operations in order to avoid duplication of tasks and the

concomitant lack of a clear-cut sense of purpose leading to policy paralysis coupled with

public programme and financial management gridlocks and fragmentation.

New partnerships and skills involving strategic management through consultancy and

advisory recommendations and evaluations envisaged in the prescriptive role of the central

state-mandated regional and sectional special forums would alongside devolved units

properly enabled under the principle of subsidiarity promote communication and co-operation

through capacity building and provision of the necessary technical assistance help the local

government in mobilizing the local citizenry in dealing with the local public matters in ways

that suit them and the prevailing situation.

These new kinds of institutions requires the central state to restrict itself to providing a

problem setting, framing the context of the situation and the boundaries and scope of public

attention, while allowing the bureaucrats and the residents through these forums to deal with

the specific situations, making their own decisions based on their perception and appreciation

of the peculiarity of the situation.

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Community Development Committee

It is a development constituency level committee that runs parallel to the Constituency

Development Committee. Its terms of reference are similar to those of the Constituency

Development Committee with the variation being in their approach to constituencydevelopment.

Whilst the Constituency Development Committee acts autonomously in serving the

community, the Community Development Committee is responsible for implementing

region/constituency-specific government policies. It also acts as a feedback mechanism for

the government on the viability of government initiatives in the area. Unlike the Constituency

Development Committee, the Community Development Committee is fully dependent on

government allocations which sums are dependent on the policies and priorities of the central

government.

They serve as alternative vehicles for the government to make and execute its policies

according to the priority and need basis of each region and the peculiarity of the

circumstances of each region as perceived and articulated at the grass roots level by the

residents of that area.

Though the government determines the composition of these committees, these committees

must be made up of residents residing in the area. Such residents may be eminent persons in

the area especially in opposition strongholds if such committees are to be used as a tool for

campaigning and endearing the government to the local people by positioning themselves as

constituency development committees in waiting.

However, like the constituency development committees, they are only entrusted with

planning responsibilities only limited to the constituency level. As such they access funds

allocated to them through the local committees, which are vested with the responsibility of

disbursing allocated public funds at the constituency level.

Community Development Committees are not specialized and their operations cover the

entire sphere of public service delivery and public welfare at the constituency level.

As such depending on the circumstances they may be used to bolster the Constituency

Development Committees in their endeavours for instance in places where the government

won the parliamentary seat or as an alternative to the Constituency Development Committee

where the government lost the parliamentary seat.

Whilst the committees may to a large extent be under the exclusive control of the government

their funding is greatly dependent on the public spending policy adopted by the parliament

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guided by the reports of the Comptroller General based on the feedback received from the

local committees in the constituencies. This is in addition to annual audits by the Office of the

Auditor General as well as scrutiny and inquiries into committee operations by the

Ombudsman whose recommendations are binding on the Central Public Bureau as the body

with the residual interest in all public service matters and thus empowered to take actions

geared towards injecting and upholding professionalism in these forums as it deems fit.

The committee is constituted of individuals including for instance losers in the party

nominations of the ruling party as well as parliamentary election losers from the government

side.

The committees receive directions from the Secretary to the Cabinet, who acts as their head

and liaison in the Cabinet, guided by and based on the government policy and the feedback

from the committee.

Quasi-Government Organisations (QUANGOS)

These are regional departmental special purpose vehicles with area-specific mandates.

They are created by the minister in a central state effort to ensure best practices and standards

in public service delivery are upheld by the devolved government units through capacity

building and provision of specialised technical assistance and funding coupled with dynamic

monitoring from above as well as reliable feedback mechanism from below.As such, the quasi-government organisations play a prescriptive role in an advisory capacity

to the sub-national governments on specific sectional matters falling within the mandate of

the ministry under which the QUANGOS is authorised to operate for instance health,

education, internal security.

The QUANGOS assists in enhancing and advising on the acceptable standards to determine

operational guidelines and the practices including the appropriate personnel requirements that

are best tailored to suit the specific needs and circumstances of the public service bodies

operating in a particular area as well as funding such public sector programmes.

They therefore simply configure the most appropriate modes of public service delivery

mechanisms from specifications formulated through policy directives of the local government

and according to the needs and preferences of the local residents in that area. They then help

in realigning such operations with the overall national aspirations by determining the

availability of any extra funding for the public programmes and projects in that area.

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Their scale of operations is limited to the territorial jurisdiction of the local government

within which they operate with the scope of their activities confined to the public concern

segment of the ministry they serve under.

Quasi-Government Organisations are operationally independent but rely on the state for

funding.

Once established through a ministerial directive under the General Act regulating and guiding

the establishment and subsequent activities and relations of the QUANGOS, the institution is

consequently reverted to the general direction and supervision of the Central Public Bureau

as a result of its residual interest in public service policy and delivery mechanisms.

The Central Public Bureau is the one responsible for monitoring and funding of the

QUANGOS in a bid to ensure professionalism in public service delivery. However, it may

only intervene in the operations of these bodies as a remedial action in its capacity as a public

service regulator.

Quasi-Government Organisations are staffed with bureaucrats who are technocrats and are

thus employed according to their expertise and skills in respect to particular fields of public

sector.

Auditor General

The Auditor General is charged with the responsibility of auditing public sector finances and

performance. In discharging his duties he is empowered to have complete and total access to

records in all public sector agencies. He makes an annual audit report addressing and

detailing the situation of public service delivery as well as application of all disbursed public

funds, which he then presents before Parliament through the public accounts committee.

In discharging his duties the Auditor General is not under direction or control of any person

or authority.

Comptroller General

He is the controller of the national budget. Once the Ministry of Finance prepares the budget

he then takes the responsibility of disbursing the funds as per the allocations by the Finance

Ministry. Once the funds have been disbursed he compiles a report confirming that the funds

were promptly and properly disbursed to the areas the funds were allocated.

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He does not take part in the allocation of funds only in the disbursement; however, he may

make very influential and persuasive remarks on the budgetary allocations by the Ministry of

Finance which he submits to the public accounts committee to act as a guideline when

making recommendations as to the passing of the budget once presented before Parliament.

In discharging his duties the Comptroller General works independent of any undue influence

from any person or authority.

In order to work more effectively he oversees a series of local committees operating at the

constituency level, which bear the responsibility of disbursing the CDF funds from the

national coffers through the Office of the Comptroller General.

The Office of the Comptroller General acts as the custodian of the treasury and all access to

the public funds must be made through it. It is therefore the Comptroller General who

essentially avails funds for all appropriations made by the Ministry of Finance and passed by

parliament. The Ministry of Finance on the other hand is mandated to make and oversee the

implementation of the national fiscal policies as well as making the budgetary allocations

necessary for running the government and funding government programmes.

Ombudsman

He is appointed and authorised to receive and investigate complaints made by individuals

against abuses or capricious acts of public officials. His jurisdiction covers the entire public

sector.

He investigates acts and the complaints thereof that cover issues of a non-litigious nature and

those that would be unsuitable for litigation for instance cases of delays in issuance of various

national documents and public service delivery generally.

To discharge his duties effectively he is assigned staff to work in field offices throughout the

country where individuals can make their complaints. The Ombudsman is also responsible

for conducting public awareness programmes aimed at sensitising the public on their rights

and what should be their expectations as regarding service delivery by public service officials

and agencies as well as public information access service to assist the public in accessing

crucial information on various government services.

The Ombudsman makes periodic reports to act as scorecards and indicators of the quality of

service delivered by public officials and institutions on the basis of for instance the number of

complaints received by the Ombudsman within a specific period of time. As such though his

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role may seem predominantly reactive he also has a proactive responsibility in monitoring

public service delivery in the public sector.

The Ombudsman may make inquiries into all complaints against public officials submitted to

him. On completion of the inquiry the Ombudsman compiles his findings and may make

recommendations for disciplinary actions to be taken against the culprit(s). His

recommendations are binding on the public service authorities mandated to take disciplinary

measures against such individuals.

The mandate of the Ombudsman originates from the Parliament and as such he is the

Legislatures watchdog in the public sector with respect to public service delivery. In this

respect he tables an annual report before Parliament through the Public Administration

Committee on the operations of the Office of the Ombudsman for that year.

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DEVOLUTION OF POWER AND THE NEW STRATEGIC STATE

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