What Devolution Means for the People of Kenya at Least in the Coming Three Years-discussion Paper

7/27/2019 What Devolution Means for the People of Kenya at Least in the Coming Three Years-discussion Paper

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****Devolution; the new face of Kenya****Discussion paper by: Ottichilo Edwin Adoga

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Section One: What Devolution means for the people of Kenyaevolution theoretically, stems from the principle of Decentralization and is acknowledged

as the strongest form in comparison to de-concentration and delegation. Devolution is

simply the transfer of authority for decision making, finance and management to smaller

quasi-autonomous political units (sub National) with corporate status. It suffices to mention that

these political units within the context of Kenya are provided for in Article 6 of the constitution,

which hints on the first schedule of CoK 2010. Devolution normally transfers responsibilities for

services to these sub political units which are allowed to elect their own leaders, raise their own

revenue, and have independent authorities with clear division of functions to make socio-politicaland economic decisions. While conducting their affairs, the principle of separation of power is

played along to protect the thriving Democracy within and among the sub National political units.

Interdependency is the key trajectory used to connect the National and sub National units while

emphasizing the place for cooperation and consultations.

Now, having crafted my definition, it makes more sense to talk about political units within the

devolution concept and forthright in our case the Counties as legally recognized with geographical

boundaries over which they exercise their authority. The constitutional framework upon and

through which the counties exercise their degree of independence from the National government

is silver lining towards promoting participatory democracy and good governance for all. However

colorful and decidedly this may appear, the journey which the 47counties have began, isnt going tobe a walk in the park. I guess thats the reason why the constitution and other Acts of parliament

have set all rounded conditions to enable the realization of the objects of devolution pegged onto

the county government, county assembly and the senate.

One requisite document which has tried to provide a wide range of issues regarding the processes,

structures and expectations of the devolved governance is the draft sessional paper on Devolved

government in Kenya 2012. This draft document which picks a lot from the recommendation on

the task force on devolved government, simply puts into a social perspective, the intention of the

laws of Kenya with regards to devolution although not providing much on the accompanying role

of the senate and county assembly in the same context. Borrowing from the draft sessional paper,

task force report on devolved government the constitution of Kenya and the relevant Acts ofparliament, my discussion and analysis will revolve around the new approach at the county level in

managing and delivering public goods and services and the role of the local residents in decision

making processes.

D
mailto:[email protected]:[email protected]:[email protected]


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First and for most the essence of devolution is that people are allowed to contribute in making decisions that are unique to themselves.

Chapter 11, Article 174 of the Constitution of Kenya identifies the objects of devolved government as the promotion of democratic and

accountable exercise of power; fostering of national unity by recognizing diversity; giving of powers of self governance to the people and

enhancing of the participation of the people in the exercise of the powers of the state and in making decisions affecting them; recognition

of the right of communities to manage their own affairs and to further their development; protection and promotion of the interests and

rights of minorities and marginalized communities; promotion of social and economic development and the provision of proximate,

easily accessible services throughout Kenya; ensuring of equitable sharing of national and local resources throughout Kenya; the

facilitation of the decentralization of state organs, their functions and services, from the capital of Kenya; and enhancement of checks and

balances and the separation of powers.

The county executive will majorly be responsible for initiation and implementation of county policies and laws. Additionally, the county

executive will be charged with the responsibility of implementing within the county, any national legislation to the extent that the

provisions of the legislation will so require or provide. The County Executive is to be headed by the County Governor assisted by aDeputy Governor. The two will work with a team of appointed Executive Committee Members skilled in a number of areas, including

finance and economic planning; spatial planning; transport and environment; public safety and security; human capital development;

infrastructure and economic services; agriculture, livestock and consumer affairs, and inter-governmental affairs. Each County Governor

will definitely have the leeway to organize their administration within the confines of the laws of Kenya, establishing county government

departments on the basis of the functions assigned by the Fourth Schedule of the Constitution.

While it is not mandatory for the names of the departments to correspond to those of the national government, its imperative that the

same reflect a great deal of intergovernmental relations. The establishment of the departments will primarily depend on the number of

executive positions in a county-which is encouraged not to surpass 10 where the county assembly has more than 30 representatives andnot more than a third of the total number of county assembly where the total number of representatives is below 30. However given the

functions assigned, the most important departments that may be established are those that deliver health, agriculture, planning and

finance, environment and natural resources, administration, infrastructure (roads, public works, transport, housing and energy), social

services, trade and industry and legal affairs.


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Indicative Structure on the outlook of the County Executive in Kenya. Source; the draft ses sional paper on Devolved government 2011

As the county governments officially start to execute their functions, on the flipside there is the county Transition Authority, an

institution that was established by the transition to devolved government Act of 2011provided for in the sixth schedule of the constitution

under section 15. The transition Authority is arguably to last for a span of three years and her primary function is to facilitate a

coordinated transition to the first elected county governments. The Transition Authority is therefore mandated to assist serve a

comprehensive and effective transfer of functions so as to facilitate the devolution of power, assist county governments in building their

capacity to govern effectively providing public services for which they are responsible; and to support county governments.

In dispensing her functions the Authority will establish a criteria that must be met before particular functions are devolved to county

governments to ensure that county governments are not given functions which they will fail to perform. The Authority will also permit

the asymmetrical devolution of powers to ensure that appropriate functions are devolved promptly to counties capacitated to perform

them and that no county is given functions it cannot perform; and provide mechanisms that ensure that the Commission on the

Implementation of the Constitution can perform its role in monitoring the implementation of the system of devolved government

effectively.


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The broad functions are boiled down to the Authority specifically: carrying out an audit of the existing assets and infrastructure of the

national government and local authorities with respect to the devolved functions and overseeing their reallocation, disposal or transfer to

either level of government; carrying out an audit of the existing human resource in the national government and local authorities and

advice on effective and efficient rationalization and deployment of human resource to either level of government; determining the

capacity needs of county governments and undertaking the necessary measures to ensure that they have adequate capacity within the

three years to enable them undertake the assigned functions.

More functions of the Authority includes: carrying out an audit of ongoing reform processes, development programmes and projects and

advise on their subsequent coordinated management, reallocation/transfer of the same to either level of government during the transition

period; facilitating the transfer of assets, liabilities and staff of national government and local authorities to county governments;

facilitating asymmetric transfer of functions to county governments; monitoring and reporting to the Commission on Implementation of

the Constitution and the Commission on Revenue Allocation through the Cabinet Secretary on continuity of services and ensure efficient

transfer of service provision during the transition period; coordinating and facilitating the provision of support and assistance to national

and county governments in building their capacity to govern and provide services effectively; advising county governments in developing

inter-governmental agreements relating to transfer of functions; liaising with government agencies and other training institutions to

develop and implement capacity building training programmes to ensure adequate capacity of national and county government staff to

perform their functions; facilitating the implementation of civic education as provided for in the Devolved Government Act; coordinating

with any government ministry, department, commissions or agency to ensure a successful transition to county governments; and last but

not least facilitating classification of urban areas and confirmation of city, municipality and town status.

In a nut shell, this means that county residents must understand that their counties will best enjoy the fruits of devolution if they develop

faster requisite capacities to ensure quicker transfer of their constitutional obligations. This further means that the slower and

incompetent the county public officers, the slower the rate of transfer will occur. The country until recently has been using local

authorities to decentralize services to the people. Although the local authorities as we know them will start to slowly disappear throughrestructuring to fit within the desires of the devolved governments, one thing that is for sure is that they will not varnish completely. Their

powers will be reduced to corporate management level and will be at the whim of the county governments but with delegated

responsibilities.

Cities and municipalities will be a body corporate with a board running their own affairs but operating under the direct supervision of the

county executive committee. Efficient governance of urban areas and cities requires that they be classified and clear assignment of

functions delegated to them by the county governments. In classifying areas as cities, municipalities or Towns, a number of certain things

including population must be considered. Three types of urban areas, namely cities, municipalities and towns are recommended. Cities

will have populations in excess of 500,000 persons, municipalities populations of at least 250,000, while towns are defined as areas of

population concentration of at least 10,000. Other variables for classifying urban areas and determine. The Boards must include


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competitively recruited individuals and members elected by various urban interest groups. The Boards will oversee the delivery of

services by City and Municipal managers working with technical teams, and ensuring efficient delivery of services to urban residents.

This model of governance enhances citizen participation since the Constitution provides for universal suffrage in electing County

representatives. It should be acknowledged that the Constitution creates only two levels of government namely national and county

governments. It assigns functions to only the two levels of government, allocates finances to the two levels and demarcates geographical

territory for each county. As a result, urban areas and cities can only be conceptualized as being part and parcel of the county

government, performing functions delegated to them by the counties and using resources allocated to them by the counties. The urban

areas and cities Act of parliament conceivably took this into consideration. Governance through Boards is expected to enhance citizen

participation and complement the CoK 2010 which provides for citizens to elect their representatives to County Assemblies through

universal suffrage. To enhance this Constitutional provision, the urban areas and cities Act provide for residents to elect individuals

through their respective interest groups to represent them in the Boards. Furthermore, the Act provide for competitive recruitment of a

city board consisting of not more than eleven members, six of whom shall be appointed through a competitive process by the county

executive committee, with the approval of the county legislative assembly. The other 5 members will be elected by umbrella associations

consisting of a registered association representing the informal sector in the area; and registered neighbourhood associations in the area;

taking into consideration the different community classes within the area and professional associations all of whom must be registered

voters within the County. The management of towns will be vested in a professional manager competitively recruited and appointed by

the County Executive Committee. These managers shall be directly deployed by the county executive and shall report to county

government through the designated officer.

Section two: Putting citizenry participation into the county governance perspectiveIn this chapter, I will simply put the following elements into perspective: the conduits for rights and responsibilities of the county

residents to participate at the county level, sub county level, urban areas/cities level and ward level; and the essence of Intergovernmental

Relations and counties integrated Development planning with regard to citizen participation.

Understanding how cities and municipalities will run under the county government

The Urban areas and cities Act provides a legislative framework for the participation by the residents in the governance of urban areas

and cities.The Cities and municipalities will be run by a board approved and appointed by the county executive to perform certain

functions delegated by the county government. Boards to either the cities or municipalities will be delegated executive authority by the

county executive to establish departments necessary for the efficient delivery of services within the city or municipality. However, their


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running of affairs will be aligned with the plan of the county government. It is important to note that departments created by the boards

to either municipalities or cities will decidedly be vetted and approved by the county executive committee to disallow any duplication of

functions with departments already established by the county government. The departments which may be established by the boards

may as fit include; planning, housing, water and sanitation, engineering and infrastructure, trade and economic Development, social

services and community affairs, environmental management, health, education, legal affairs; and finance. All these city or municipal

departments will be directly under the manager/administrator who will be the accounting officer.

Participation of the county residents with respect to cities, municipalities, Towns, sub counties and wards (decentralized units)

Based upon the need to promote and strengthen the objects and principles of devolution, the boards to either of the cities, municipalities

and towns have the social and legal obligation of providing appropriate and necessary platforms for residents participation in decision

making within their jurisdiction by developing a coherent system of local governance that encourages participation by residents in its

affairs. Each city or municipal board is required by law to establish and maintain its own official website to ensure regular update of their

services and goods. The Urban Areas and Cities Act of 2012 provide under section 74 for the rights of the residents to contribute to the

decision making processes of the city or municipality by submitting written or oral recommendations, presentations or complaint to a

board through the city or municipal manager or administrator. The boards are compelled by the Act to provide prompt responses to the

subsequent written or oral communications by the residents. The residents also have the right to regular disclosure of the state of affairs

of the city or municipality, including its finances (although annual financial reports may only be availed to the residents of the area upon

application and payment of prescribed fees). It is within the rights of the residents to demand that the proceedings of a board and its

committees be conducted impartially and without prejudice; and untainted by personal self-interest. The residents are also allowed to use

and enjoy public facilities; and access services which the city or municipality provides.

In pursuant to encouraging participation by residents in its affairs, the cities and municipalities are mandated to create appropriate

conditions. These conditions1

are specifically supposed to ensure informed participation in the preparation, implementation and reviewof the integrated development plan. Informed participation is also expected in the establishment, implementation and review of its

performance management system; in the monitoring and review of its performance, including the outcomes and impact of its

performance. Participation is also envisaged to ensure: residents involvement in the preparation of the cities and municipalities budget;

and making of strategic decisions relating to delivery of service. The boards are required under the law to contribute towards capacity

building the residents to enable them participate in the affair of the city or the municipality. Equally, the boards are responsible of

equipping the members of the board and the staff of the boards with skills appropriate to enhance community participation.

1

Section 75 of the Urban areas and cities Act of 2012.


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The development of a coherent system of local governance by the boards entails2: establishing appropriate mechanisms, processes and

procedures for the receipt, processing and consideration of petitions and complaints lodged by residents; establishing processes and

procedures for notification and public comment procedures-when appropriate; processes and procedure for notification of public

meetings and hearings organized by a board; procedures for consultative sessions with locally recognized resident organizations; and last

but not least procedures for report back to the residents. While developing processes and procedures informing a local governance

system, the city or/and the municipalitys board is obligated to take into account the special needs of people who cannot read or write,

people with disabilities, gender and other disadvantaged and minority groups.

Rights come with responsibilities. Although the residents of a city or municipality definitely have rights, they also have civic duties and

responsibilities to uphold, some of which include: when exercising their rights, they are required to observe the mechanisms, processes

and procedures of the city or municipality (all of which are encouraged where necessary to be written and availed in the public domain);

the residents are also to ensure that they promptly pay any required service fees, surcharges on fees, rates on property and other taxes,

levies and duties imposed by the city or municipality; to respect the rights of other residents be it native or from another county; to allow

officers and employees of the city or municipality reasonable access to their property in the performance of their official duties; and last

but not least to comply with all existing laws and not misconstruing their rights as a permit to interference with a board's right to govern

and exercise its functions.

As correctly put, the urban areas and cities will be delegated some of the public service management and administration by the county

government. In the rural areas, I believe the set up will be a bit different bringing on board the essence of sub county units as

decentralized units to coordinate, manage and supervise service delivery and development at the sub county level. A Sub county is

equivalent to a constituency in this case and will act as an administrative unit headed by a sub county administrator. The sub-county

administrator will be responsible for the coordination, management and supervision of the general administrative functions in the sub-

county unit, including the development of policies and plans; service delivery; developmental activities to empower the community; the

provision and maintenance of infrastructure and facilities of public services; and facilitation and coordination of citizen participation inthe development of policies and plans and delivery of services. It suffices, that the administrator will be responsible for the execution of

county policies at the sub county level.

As for the wards, each of them will have a ward administrator who will perform similar functions as those of sub-county administrator but

at the ward level. In this case the local people at the ward level will be required to work with both the ward administrator and the county

ward representative (whose primary mandate will be inclined towards county policy and legislative roles).

2

Section 75 (d) ibid.


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Section 22 of the urban areas and cities Act of 2011 provides a beautiful framework for county residents participation in decision

making process through Citizen Forums. The forums will provide an opportunity particularly for the residents of a city, municipality or

town to deliberate and make proposals to the relevant bodies or institutions on a range of issues including the following: the provision of

services and goods; proposed issues for inclusion in county policies and county legislation; proposed national policies and national

legislation; the proposed annual budget estimates of the county and of the national government; the proposed development plans of the

county and of the national government; and any other matter of concern to the citizens.

On a side note, its important we build an imperative understandingthat while the citizen forums will be important towards holding both

appointed and elected leaders to account, one aspect that will likely to be forgotten or attract subtlety while connecting civic dots in these

forums will be the obvious issue of borrowing and lending. The county government Act, the urban area and cities Act and theIntergovernmental fiscal relations Act-through the loan and grants council- all provide a legislative framework which allow for the county

governments, the city boards, and municipal boards to borrow money and receive unconditional and conditional grants. Any loan

guaranteed or any grant applied and received from the national government and other multilateral sources by the institutions must be on

behalf of the local people recorded as a source of revenue for purposes of building institutions accountability to the voters. It is therefore

the responsibility of the citizens to monitor and interrogate the usage of the borrowings in the forums to ensure sound growth and

development.

Loans and donor grants from cities, municipalities and the county governments will be appropriated as revenue or appropriations-in aid

in the annual and forward budgets of county governments. Programmes to be funded using such loans and grants will be developed by

the respective county executive or boards and incorporated in county budgets for consideration and approval by county assemblies.

Please notice, a County Infrastructure Development Fund will also be developed to offer long term loans for financing infrastructure

development and capital investments in county governments including in cities, urban areas and county public entities.

The citizen forums are also necessary in providing an avenue for the citizens to plan strategies for engaging the various levels and units ofgovernment on matters of concern to them; monitor the activities of elected and appointed officials of the urban areas and cities,

including members of the board of an urban area or city; and receive representations, including feedback on issues raised by the county

citizens, from elected and appointed officials. In this regard, boards to either a city or a municipality will be required to invite petitions

and representations from the Citizen Forums with regard to the administration and management of the affairs within an urban area or

city under its jurisdiction. Thereafter, the board will make recommendations on the manner in which issues were raised at the Citizen

Forum, and may subsequently address these issues. The board is then required to pass its recommendations to the manager for

implementation. What should be a clear impression of Cities and urban areas, is that they will be able to finance their functions through

budgetary allocations from the county government and will be delegated the responsibilities to charge taxes within their areas of

jurisdiction.


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Participation of the county residents with respect to the Counties

County residents can participate in the political and development process of the county in a number of ways. For instance when

considering any appointment for which approval of the county assembly is required under the Constitution or as permitted by the county

government Act of 2012, the proceedings of the committee and the county assembly will be open to the public. However this will

happen after the recommendations of committee constituted for purposes of vetting candidates for public office has been tabled before

the county assembly and approved. Conceivably, the names approved may change based upon intensive_ well orchestrated public

pressure if and when any of the names are of people perceived to be of questionable moral character and reputation. With substantive

reasons, county residents can use their constitutional power to urge the governor to blackball the individual(s) in question failure to which

they can still seek an injunction from the law courts stopping the appointment of the said individuals. Additionally, using their Right to

petition county assembly, a county resident can petition a county assembly to consider any matter within its authority, including enacting,

amending or repealing any of its legislation based on accepted procedures prescribed by the assembly for purposes of exercising these

rights. For instance, when a county assembly adopts and approves rates for taxation which are perceived unreasonably high, the county

residents have the right to petition the assembly to low the rates to reasonable level or to obtain justification regarding their criteria for

raising the rates. The county government or her devolved authorities in this circumstance are required by law to make expeditious

responses to the petition or challenges by the county residents.

The sovereign power of the people is sanctioned and protected by the constitution. In upholding and exercising this power, county

governments are allowed to conduct local referendums with a view to promulgating laws and petitions within the counties and which are

seen critical and crucial in overhauling intra county structures and processes of development and therefore draws on the need of the

consequences to be shelved by the people; and planning and investment decisions affecting the counties. In this prime case, a petition

has to be raised by a county resident or a group of county residents and thereafter signed by at least twenty five percent of the registered

voters where the referendum is to take place. The same has to be deposited with both the Electoral commission and the countyexecutive committee where the election Act with necessary modification where appropriate will apply.

In pursuant to promoting fundamental rights, county governments and non state actors (private/private) are too sanctioned by law to

progressively ensure the protection of marginalized and minority groups from discrimination and from treatment of distinction of any

kind, including language, religion, culture, national or social origin, sex, caste, birth, descent or other status. Additionally the same actors

are sanctioned to promote non-discrimination and equality of treatment in all areas of economic, educational, social, religious, political

and cultural life of the marginalized and minority groups among others

The county government is legally mandated to facilitate the establishment of structures for citizen participation including: ICT based

platforms; town hall meetings; budget preparation and validation forums; announcements of public interest; development of project sites;


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establishment of citizen forums/avenues at county and decentralized units where the people will engage with their representatives

including members of the National Assembly and the senate.

Issues on Intergovernmental relations and Integrated county Development Plan

Intergovernmental relations which is simply defined as a set of multiple formal and informal processes, channels, structures and

institutional arrangements for bilateral and multilateral interaction, will be one of the key relational element of interdependency between

the two levels of government. These relations seek to achieve various objectives including promotion and facilitation of cooperative

decision-making; coordination and alignment of priorities, policies, planning, budgets, and activities across interrelated functions and

sectors; ensuring the smooth flow of information within and between governments on a constant basis in order to enhance the

implementation of policy and programs; and providing constant information to citizens and responses to their needs. A legislative and

institutional framework is required to provide for mechanisms of consultation and co-operation between national and county

governments and among the county governments themselves.

County governments shall be required to develop short and medium term county integrated development plans that will form the basis

of budgeting. Due to the interdependent nature of the developmental activities and programmes of the national government and county

governments, the development plans of the county government will generally be required to align with the national development plan.

County governments shall adopt a budget system that integrates and harmonizes policy, planning and budgeting in the short and medium

term. This is wholly to ensure certainty and consistence in funding and to provide mechanisms for containing expenditures within the

budget while allowing flexibility.

Preliminarily, for each county, an Integrated County Development Plan (ICDP) will be developed upon which all appropriations;

including expenditures by county governments shall be based. This integrated plan will comprise of an economic development

programme, a spatial plan, and institutional development plan, a human resources development framework and a county performancemanagement framework. The Counties will also be required to develop clear service delivery objectives in terms of standards and levels

of services as well as time bound plans for their achievement. Furthermore, linkages at national, regional, county, sub-county and ward

level planning and development control activities shall also be required. Each Integral plan to be developed is expected to have a five

years life span for purposes of streamlining responsive services for development. Land use policy will also be central in the planning.

Each county Governor will use the annual State of the County Report to monitor and communicate to the county residents on the

effective implementation of county plans.

For cities and municipalities, they will specifically be required to develop plans for purposes of guiding development. There following

will included in the plans: City or municipal land use plans; City or municipal building and zoning plans; City or urban area building and

zoning plans; and location of recreational areas and public facilities.


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Section three: ConclusionCounty governments represent the lynchpin of developmental devolved system of government.

Arising out of the national development challenge, it will be necessary to ensure that more

resources are allocated towards development, rather than recurrent expenditure. Therefore, in

operationalizing county governments, creation of cost effective structures which are necessary forinclusiveness, integrity, participation and effective public administration is a key requirement

3.

Through the enactment and implementation of the Devolved Government law and other laws

operationalizing the Constitution at county and national level, it is envisaged that Kenyans will be

accorded an opportunity to positively engage with public bodies to ensure effective delivery of

services. Active citizen participation in all spheres of governance is expected to enhance economic

development from the lower units of governance, equitable sharing of resources and better

protection of previously disadvantaged groups.

County assemblies constituted through universal suffrage. The administrators are expected to be

non-partisan qualified personnel with relevant experience necessary for undertaking the assignedservice delivery tasks. The proposed hybrid system of governance in urban areas and cities is

expected to enhance governance by allowing stakeholders to participate in the governance of urban

areas and cities, with high potential for effective and efficient service delivery. Under the current

situation, most citizens are unable to hold their leaders to account and are hardly engaged in local

development. The proposed units of governance are expected to empower the citizens to engage

in local development, to facilitate growth and ensure effective service delivery4.

3

Extracted from the draft sessional paper on devolved government in Kenya, 2011, page 214

Ibidem, pg 40


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References:Draft sessional paper on devolved government in Kenya;

Intergovernmental fiscal Relational Act, 2012;

The county financial management Act, 2012;

The county Government Act, 2012;The urban areas and cities Act, 2012;

Transition to Devolved Government Act, 2012;

Final Report of the Taskforce on Devolved Government.

What Devolution Means for the People of Kenya at Least in the Coming Three Years-discussion Paper

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