Devolution in Kenya
Devolution in Kenya is the pillar of the Constitution and seeks to bring government closer to the people, with county governments at the center of dispersing political power and economic resources to Kenyans at the grassroots
The promulgation of the Constitution of Kenya 2010 marked a major milestone in the way the country is governed. It stipulated the dispersal of political power and economic resources from the center in Nairobi to the grassroots in a process known as devolution.
As a result. 47 county governments and the Senate were established following March 4, 2013, General Election as part of the implementation of devolution. With this, Kenya came full circle from pre-independence days when a form of devolution, then known as Majimbo, was introduced brieﬂy in 1962 but scrapped soon after independence.
Majimbo came following intense political battles between two independence parties — Kenya African National Union (Kanu)and Kenya African Democratic Union (Kadu) — as they negotiated the independence Constitution in Lancaster.
Devolution takes root in Kenya
After years of sustained demands for the reinstatement of regional governments, devolution has taken root in the country, with 47 county governments and the national government.
Devolution was at the core of the formation of the Constitution of Kenya Review Commission (CKRC) which was headed by Prof Yash Pal Ghai between 2000 and 2004.
The Constitution of Kenya Review Act 2000 required the CKRC to consider people’s participation through the devolution of power; respect for ethnic and regional diversity and communal rights including the right of communities to organize and participate in cultural activities and the expression of their identities. It was to review the place of local government, the degree of the devolution of power to local authorities, and options for federal and unitary systems.
The majority of Kenyans who gave their views to the CKRC team demanded a devolved government to check widespread alienation due to the concentration of power in the national government.
The feeling of being marginalized and neglected, deprived of resources and victimized for political or ethnic affiliations intensified the push for devolution. Areas that did not support the president were penalized in terms of development and resources and discriminated against.
There was particular resentment of the Provincial Administration, which was accused of abuse of powers bestowed upon its officers. The local authorities had failed to deliver services and had been turned into dens of corruption.
This debate rekindled memories of the maneuvers that almost derailed independence after the Lancaster constitutional conference turned into a factional showdown over whether Majimbo could be trenched in the Constitution.
While Kadu, led by Ronald Ngala pushed for regional governments, Kanu’s Jomo Kenyatta who later became the founding President, his deputy Jaramogi Oginga Odinga and Secretary-General Tom Mboya, were opposed to the system.
Ngala and his team who included Martin Shikuku, Masinde Muliro, Peter Okondo, and William Murgor insisted there would be no Constitution, and therefore independence, without Majimbo. They were backed by colonial administrators – Wilfred Havelock, Michael Blundell, and R.S. Alexander, the forces behind the push for Majimbo.
The acrimony that followed delayed the Lancaster conference for almost four months. The conference started on February 12, 1962, but lasted until May, when Kadu eventually had their way. Havelock and Blundell had convinced Kadu leaders that an independent Kenya with a Kikuyu and Luo majority would marginalize the smaller tribes. They argued that the only way to water down an all-powerful presidency and provincial administration was to form regional units.
By pushing for Majimbo, the colonialists argued that the British Westminister parliamentary model, which they wanted Kenya to adopt, gave too much power to the majority. They wanted the transfer of significant powers to regions, largely at the provincial level. The primary reason was to eliminate the Provincial Administration.
But although defeated by Kadu in entrenching Majimbo in the Constitution, Kenyatta and his team did not give up the fight. When he eventually took over power as the first Prime Minister and later as President in 1963, the Senate repealed the Majimbo clause in the Constitution in 1964.
The result was a concentration of power in the presidency that eventually led to the political struggle that many have referred to as the Second Liberation.
While Daniel Arap Moi, a former Kadu member who joined Kanu and succeeded Kenyatta, ruled, the Majimbo debate largely died although he implemented some Majimbo policies through the District Focus for Rural Development program.
In 2001, Cabinet Ministers Shariff Nassir and William ole Ntimama called for the return to Majimbo“to ensure equitable distribution of resources” after Moi’s exit from power. Ntimama said Majimbo could be the answer to what he termed as “majoritarian avalanche.”
Moi, in his autobiography, The Making of An African Statesman by British author Andrew Morton, described Majimbo as “a system of checks and balances designed to safeguard the integrity of small tribes which were in danger of being overwhelmed by larger tribes.”
Odinga, in his book, Not Yet Uhuru, wrote that the system was not only expensive in terms of money and personnel, but also prevented the growth of nationhood and retarded economic development. It was “too legalistic and cumbersome, literally requiring a battery of legal experts and clerks at the center and regions to interpret the dos and the don’ts hidden in the myriad legally worded clauses if it was ever to work.”
Against that background, Prof Ghai’s CKRC established detailed proposals for devolution, beginning with its objectives, and covering powers and institutions of devolved units, and their relationship with the national government, including funding for devolved activities. Several matters of detail were left to be dealt with in legislation. But it did propose structures, right down to village level, which was discussed by delegates at the Bomas of Kenya.
One group favored the district, the other the region. The CKRC had chosen the district but found some coordinating role for the province. At Bomas a compromise was struck by giving provinces somewhat enhanced powers.
In 2010 the Constitution largely followed the Bomas scheme. The Committee of Experts which ﬁnally delivered a new supreme law to Kenyans was faced with the same dilemmas that had vexed CKRC and Bomas, namely the levels and numbers of devolved units. At ﬁrst it supported the idea of three levels (unlike the ﬁve of the CKRC). But later it opted for a single lower level to avoid a “complex system”. The units at that level were labeled counties and their boundaries largely followed district boundaries drawn as part of the independence arrangements.
Eventually, the draft constitution with devolution at the county level was overwhelmingly passed at the referendum with more than 60 percent of the total votes. Kenya finally had a Constitution that devolved power and resources to the grassroots, a feat that had remained elusive for decades.
Structure of devolved units in Kenya
The Constitution drastically changes government operations. The new structure differs signiﬁcantly from the old system. It has the National Government and the County Governments.
The National government is by the President and his cabinet of not less than 14 and not more than 22 Cabinet Secretaries. Only the President will seek the election while his running mate becomes the Deputy President. The two are not members of the National Assembly. The President can only address the National Assembly on special occasions as mandated by the Constitution and can only serve for two – five-year terms.
Cabinet Secretaries in Kenya
Cabinet Secretaries were formerly referred to as Cabinet Ministers. In the old Constitution, they doubled up as politicians either elected by voters or nominated by various political parties before being appointed to the Cabinet. In the new dispensation, they are nominated by the President and vetted by the National Assembly before being formally appointed. In the new order, Cabinet Secretaries will only appear before Parliamentary Select Committees to answer questions pertaining to their ministries.
Parliament in Kenya
The Bicameral Parliament consists of the Senate, which has 68 members and the National Assembly which consists of 350 members.
These members are either elected or nominated by various political parties. There is no limit on the terms of the members of the two houses. The Parliamentary Service Commission chaired by the Speaker of the National Assembly is charged with the task of procuring human resources and the infrastructure required by the Assembly. It also looks after the welfare of MPs.
The County government in Kenya
The County government is headed by the Governor. He or she has a deputy, who like Deputy President was a running mate in the elections. Neither the governor nor the deputy takes part in the County Assembly proceedings. However, the governor is mandated by the Constitution to address the Assembly on designated occasions. The two have a two—five-year term limit. The County Executive Committee is the executive organ of the 47 County governments. Members are nominated by the governor and vetted by the County Assembly before formal appointments. The County Assemblies— the County parliaments, can accept or reject the governor’s nominees.
The county’s executive comprises the Governor and the Deputy Governor, members of the County Executive Committee and the civil service of the county.
Devolution in Kenya: The Backbone of the Constitution
Legal experts agree that without the chapter on devolution, the 2010 Constitution would be a mere shell. It has given hope to many Kenyans and is, therefore, the most-watched unit of the Constitution.
Already there are very high expectations from the public as governors and senators embark on their new roles.
Kenya’s new counties will have considerable autonomy, including over public service management.
Though facing myriad challenges, devolution represents a major transformation of the state and undoubtedly, in course of time, of society. It reverses the system of control and authority established by the colonial powers and perpetuated by successive presidents.
Two major, interrelated, defining features of that system were the centralization of power in the presidency and other executive organs.
Through devolution, the Constitution deals, to some extent, with the first feature. Devolution opens the prospects of fundamental, progressive changes in politics and economy.
Challenges facing devolution in Kenya
At the center of this implementation, the cycle is the impending restructuring of the public administration and service delivery mechanisms at the local level. These mechanisms have been in existence for decades and they have deep roots. For this reason, restructuring will not be easy, especially because it involves people.
Some of these people and systems have been in existence for decades and disbanding or transferring them to the counties would be a hard task.
Already there have been controversies over how the national and county government should share responsibilities. Just who should do what?
The restructuring also involves the introduction of new value systems, such as the focus on service delivery, the need for closer supervision, and the importance of knowledge, skills, and experience.
Realizing the desired goals will call for a careful strategy, supported by the necessary policies and legislation. Some of these are spelled out in the Constitution, and some are not.
Where possible, Kenya will need to learn from the experience of other countries, which have restructured its public administration and service delivery mechanisms. But contexts differ. In Kenya, an additional degree of complexity will be added, because future counties will vary enormously in terms of basic characteristics and needs.
The advantages and benefits of devolution in Kenya
Devolution is expected to help Kenyans reap the following:
- Equitable distribution of resources across the country, especially to regions that have been marginalized for decades.
- Management of governance and public service to the smallest units of the counties.
- Timely and efficient delivery of public services such as health care, education, and infrastructure.
- Allowing Kenyans to take charge of their development initiatives from the grass—root levels through prioritizing of their needs.
- Avoiding political tensions at the national level by devolving leadership to the countryside.
The Constitution gives the county governments the executive and legislative authority and mandate to raise revenue, craft policies and make their own budgets for the purpose of devolving services to the people.
County governments are each administered by a County Executive unit under an elected governor.
The two levels of government, though distinct, are not based on absolute autonomy but rather on interdependence and cooperation. While Section 6 (2) of the Constitution emphasizes distinctiveness and interdependence, section 189 calls for closer liaison, consultation and exchange of information between the national government and the counties.
This is supported by the fact that Kenya remains one unitary state despite devolution.
The Constitution creates structures to ensure that this remains so and that any emerging issues are dealt with.
Section 7 of the Devolution Chapter establishes the Intergovernmental Relations Act, 2013, which creates key structures, namely a national and County Governments Coordinating Summit.
This summit will help in regulating and guiding the relationship,co-existence of the two levels of government to ensure the success of devolution. It will comprise the President of the Republic, the Deputy President and governors of the 47 counties.
Importance of devolution in Kenya
Devolution is the most important aspect of Kenya’s Constitution. It is already decentralizing power and governance in the country.
Decentralization has increasingly been adopted worldwide as a guarantee against discretionary use of power. It has also been touted as increasing efficiency in social service provision, by allowing for a closer match between public policies and the desires and needs of local constituencies. Kenya’s Constitution entrenches the devolved government by guaranteeing a minimum unconditional transfer to counties under the new dispensation.
Counties will be better placed than the national government to deliver social services because they have specific challenges and the local knowledge to address them. Besides the envisaged improvements in service delivery, people will have the opportunity to make decisions themselves rather than following directions imposed by a central government. With A constitutional guarantee of unconditional transfers from the center, Kenya’s counties will have the means and the autonomy to begin to address local needs, and their citizens will be more able to hold them accountable for their performance.
The politics of devolution explain the high intensity of hopes and expectations that have been pinned to it. It also means that there are high risks if expectations are not met.
Forty – seven-county Assembly Service Boards have been established under the County Governments Act. The Boards have four members, one of whom is from outside the assembly. They are responsible for running the assembly, establishing offices and recruiting staff, and preparing the budget for the County Assembly (County Governments Act, section 12).
The Urban Areas and Cities Act 2011(UACA) will replace the Local Governments Act (Cap 265). This means that all local authorities created by the Act are now part and parcel of the county governments.
The cities, towns and urban centers are being run by managers and administrators who will be answerable to the governors.
Assets of local authorities shall be transferred to county governments and already an inventory of the assets has been developed.
A team from the Transition Authority and the office of the Auditor-General is already working on plans to identify and repossess assets that may have been grabbed by individuals during the transition period. These include land and movable assets.
Potential risks of devolution in Kenya
The excitement that greeted the promulgation of the Constitution is slowly dying. Some of the system’s potential risks Include excessive competition for local investment among sub-national governments and the creation of socio-economic enclaves – such as ethnic or religious hatred.
Although the Constitution states that each of the 47 counties must ensure 30 percent of the jobs are reserved for applicants from outside the county, there is no evidence at the moment whether this is being effected.
It might take another five or 10 years before Kenyans start reaping real benefits from the new system. There is a possibility of both the national and county governments duplicating functions which would eventually result in the wastage of resources.
Budgeting has posed the biggest challenge for the county governments. Many of the counties have been accused of allocating huge sums of money to projects which have not been approved by the office of the Controller of Budget. Some have failed to spend the money allocated to them and others have budgetary allocations on non-core activities, contrary to the Public Finance Management Act.
The Constitution gives the Controller of Budget the mandate to oversee the implementation of the budgets of both national and county governments by authorizing Withdrawals from public funds; the Consolidated Fund, the County Revenue Fund, and the Equalisation Fund.
The Controller of Budget cannot approve Withdrawal from any public fund unless satisfied the law authorizes the Withdrawal.
The statutory deadline for the passing of the budget estimates and the approval of the appropriation Bills is June 30.
Devolution in Kenya – Principles of devolved governments in Kenya
The devolved government in Kenya will:
- Promote the democratic and accountable exercise of power.
- Foster national unity by recognizing diversity.
- Give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State.
- Recognize the right of communities to manage their own affairs.
- Protect and promote the interests and rights of minorities and marginalized communities.
- Promote social and economic development and the provision of services throughout Kenya.
- Ensure equitable sharing of national and local resources throughout Kenya.
- Facilitate the decentralization of State organs, their functions, and services, from the capital of Kenya;
- Enhance checks, balances and the separation of powers.
The promise and the risks of devolution in Kenya
One of the key reforms of the Constitution of Kenya is the establishment of devolution through county governments. Primarily, it is a response to the enormous centralization of state power at the center and in the presidency, accentuated by the attrition of local government.
For many people, the main contact with the government has been with Provincial and District Commissioners and Chiefs, ultimately responsible to the President. On a more political level, the centralization of power, generally exercised by a small coterie of people around the President, marginalized communities and regions that were perceived to be opposed to the regime.
Economically, enterprises and employment tended to concentrate in Nairobi and led to migration from rural to urban areas.
For an understanding of the reasons for devolution, one cannot do better than read Article 174.
They include democratization, accountability, increased checks and balances, national unity, recognizing diversity and protecting minorities, economic development and access to services, and equitable sharing of national and local resources.
This is an ambitious agenda, carried over from the CKRC and Bomas drafts, but without the same institutional arrangements and devolved powers.
However, some of these goals can be achieved even within this more restricted framework if the right decisions are made about the structuring of counties and their relationship with the national government.
Devolution is partly a matter of law and partly of conventions and practice. It will come into effect only after the next General Elections when the county assemblies and governors will be elected.
The complete implementation will take place gradually, but it is expected that devolution will be fully operational after five years.
As the system is new and we do have some time to work out the detailed legislative and administrative arrangements, it is critical that these are designed to achieve stipulated objectives.
There is enough flexibility as to the evolution and operation of the system. Powers and money will be transferred only when the capacity to handle them has been established in the county.
County governments could agree that the national government should do certain things for them, or the national government could agree that the counties, or those of them with the capacity, should take over certain national government functions.
New Institutions in the devolved system
The devolved system has come with new and restructured institutions meant to serve various roles.
Public Service Commission is reformed and constitutionally entrenched. But its role in relation to county public servants will be limited to hearing appeals from decisions of County Public Service Boards (Article 234).
Forty-seven county Public Service Boards will be established under the County Governments Act.
Board members will be appointed by the governor of each county with the approval of the County Assembly, and enjoy the same protection from political dismissal as the members of a constitutional commission do, under the Constitution. The role of a board is to establish and abolish offices, appoint public servants, and exercise discipline over them (County Governments Act, sections 57-59).
- Control of narcotic drugs and pornography
- Ensuring and coordinating communities’ participation in governance.
Controlling Excessive Power
The previous two articles described Parliament and the executive. But these two institutions need to work together. This article describes their relationship to one another and some of the controls that the Proposed Constitution puts on executive power.
The underlying idea is “separation of powers”. This means that the three main organs of government – the legislature (Parliament), executive and judiciary – must be separate, each doing their own jobs. Two reasons are usually given for separating their functions:
(i) to protect individual liberty by ensuring no organ has excessive power; and
(ii) to make each organ more efficient by allowing it to operate without too much interference.
When the Constitution of Kenya Review Commission (the Ghai Commission) collected the views of Kenyans one of the strongest points made was that executive power needed to be controlled. So, the first reason is the one which concerns Kenyans most.
Separating the functions of Parliament and the executive means that neither Parliament nor the executive can act on its own. If the President wants to implement a particular policy, the agreement of Parliament is needed to pass the necessary law and to approve the budget for it.
Similarly, if MPs have projects that they want to be implemented, they need the executive to implement them. And, Parliament can’t simply get around resistance from the executive by passing a law instructing the executive to do something because the President can refuse to sign laws (exercising a “veto”). If the President does veto a law, Parliament needs the support of 2/3rds of its members to pass it.
How will the system work? Many laws are uncontroversial – Parliament and the executive will easily agree about them. But, when Parliament or the executive wants to do something that the other organ does not support, a great deal of negotiation will be required. This happened when President Obama tried to pass his health care program this year. A long process of negotiation and compromise was necessary before a health care law satisfying both the executive and Congress was agreed. This is a good example of how separating power constrains power – neither the executive or Parliament can act on its own.
But, separating functions may not be enough to control excessive power. So, various “checks” secure the balance.
The judiciary provides a check because it can scrutinize the actions of the executive and any laws passed by Parliament to see that they are constitutional. If they aren’t, the courts will declare them illegal.
Regular elections, term limits, and devolved government are other checks. (Devolved government means that executive power is shared between the national and devolved governments.)
Requiring the National Assembly to approve senior government appointments and its power to dismiss Cabinet Secretaries is a check because if Cabinet members must have the support of the National Assembly and they face dismissal if they don’t obey the law.
The Proposed Constitution also makes the National Assembly responsible for overseeing the executive. It must check that programs have been properly implemented and money is spent as Parliament requires. It has the tools to do this effectively. First, the Proposed Constitution says that Cabinet Secretaries must provide Parliament with regular reports. The rules of Parliament can prescribe when these reports must be presented. Second, Cabinet Secretaries must attend parliamentary committees and answer any questions when asked to do so. Finally, if it is not satisfied with the explanations given by the executive, Parliament has the “power of the purse” – it can block funds to the executive.
Another way of controlling executive power is by removing some of its functions. One example of this in the Proposed Constitution concerns the Attorney-General (AG). Under the current Constitution, the AG is appointed by the President to be the principal legal advisor to the government. This includes the control of public prosecutions. He also is an MP and Cabinet member. The Proposed Constitution divides the functions of the AG between the AG and a newly-created Director of Public Prosecutions (DPP).
The DPP will be separate from the executive and in charge of prosecutions. He or she will be appointed by the President with the approval of the National Assembly but will not be a member of Cabinet and may not be controlled by anyone. The DPP serves for eight years only and can’t be re-appointed so he or she will have no reason to try to please the President to get another term in office. The DPP can also not be removed from office merely because the executive or Parliament is displeased with his or her decisions about who to prosecute. The Proposed Constitution sets out limited reasons for removing the DPP and a strict procedure. These provisions ensure that decisions to prosecute are free of executive influence.
The AG will still be the principal legal advisor to the government and will represent the government in legal proceedings.
Member of the Committee of Experts and Professor of Constitutional and Human Rights Law at the University of Cape Town
Key Constitutional Ofﬁces in Kenya
1. The Transition Authority
This is the official vehicle for devolution. It was formed to oversee a smooth transition from the centralized government to the devolved governments. It has 17 members
A Chairperson and members appointed by the President and Permanent Secretaries appointed by line ministries. Its mandate spelled out in Section 8 (2) the Transition to Developed Government Act include:-
- Distribution of assets between the national and county governments and ensuring these assets are not lost during the transition period.
- Managing the three—year transition period through the distribution of staff to county governments.
- Collecting relevant information from any source including state departments for the purpose of a smooth transition. Mr. Kinuthiawa Mwangi is the chairman.
The Transition Authority has been under sharp scrutiny as it midwives the tricky devolution process.
Established under section 4 of the Transition to Devolved Government Act, 2012, the Authority’s object is to provide a framework for the transition to the devolved government pursuant to section 15 of the Sixth Schedule to the Constitution. It is, therefore, a critical institution charged with the responsibility of overseeing the implementation of devolution.
Section 15 of the Sixth Schedule to the Constitution provides that Parliament shall, by legislation, make provision for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them. Section 23(2) of the Transition to Devolved Government Act, 2012 also provides that after the initial transfer of functions, every county government shall make a request in the prescribed manner to the Authority for transfer of other functions in accordance with section 15 of the Sixth Schedule to the Constitution. So far, the Authority has overseen the establishment of the 47 County governments and their seats of power.
It has overseen the Assumption of Office procedures of the Governors, and facilitation for other elected and appointed leaders in taking up their roles and responsibilities.
Besides successfully facilitating the swearing-in ceremonies for all 47 counties across the country, the TA had already developed preliminary tools to prepare for county assemblies successful initialization by developing Interim Standing Orders, Speaker’s Rules, Oath Books, the Mace, Speakers’ Chairs, permanent County Coordinators and Interim County Transition Teams.
In terms of oversight, a moratorium on the transfer of assets was issued and regulations for the management of the transfer of management of assets have also been developed.
Data on assets and liabilities of both the national Government and the former local authorities are stored in an Integrated National and CountyAsset Register Centre at the Office of the Auditor-General.
2. Commission on Revenue Allocation
This commission, established under Article 215 of the Constitution, is the heartbeat of devolution. Headed by former Central Bank GovernorMicah Cheserem, CRA decides what amount of money each county gets every financial year. It is responsible for vertical and horizontal sharing of resources.
It is also expected to help define revenue sources for the counties and national government and devise ways of encouraging fiscal responsibility.
Article 216 (4) of the Constitution also requires that it determines, regularly reviews and publishes marginalized areas that need equalization funds given to areas with high prevalence of poverty.
3. Shareable revenue
Article 203(3) of the Constitution states that shareable revenue shall be calculated on the basis of the most recent audited accounts of revenue received as approved by theNational Assembly.
The CRA is also mandated to determine, publish and regularly review a policy that guides in the identification of marginalized areas to benefit from the Equalization Fund.
Besides identifying these areas, the commission also guides in the planning, implementation andmonitoring, and evaluation in the use of equalization funds.
Criteria for Identifyingmarginalised areas
- Legislated discrimination
- Geographical location
- Culture and lifestyle
- External domination
- Land laws and administration
- Minority recognition groups
- High levels of absolute and relative poverty
- Poor infrastructure
- The poor state of basic and social services
- Poor governance.
Marginalized counties According to the Constitution(Article 260), a marginalized community is:
- Because of its relatively small population or for any other reason has been unable to fully participate in the integrated social and economic life of Kenya as a Whole.
- A traditional community that out of a need or desire top reserve its unique culture and identity from assimilation have remained outside the integrated social and economic life of Kenya.
- An indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter and gatherer economy.
- Pastoral persons and communities, whether they are nomadic or settled, that because of relative geographic isolation, have experienced only marginalized participation in the integrated social and economic life of Kenya.
Based on the above considerations, the CRA identiﬁed and classiﬁed the following counties as marginalized and will, therefore, get additional funding.
- West Pokot
- Tana River
- Taita Taveta
The Equalisation Fund will form 0.5 percent of the total allocation to the county governments. The policy will be effective for three years before it can be reviewed.
4. Controller of Budget
It has both constitutional and executive roles to play at the national and county governments. It authenticates the budgets and spending by the two levels of the government. No funds will be withdrawn from the Exchequer without permission from the office of the Controller of Budget. The Controller of Budget will report quarterly to the National Parliament and the Senate on the implementation of the budgets.
5. Auditor General
His main mandate as spelled out in Article 229 of the Constitution is to audit and report on all accounts of national and county governments.
All accounting officers are required to submit their financial reports and statements to the AG three months after the end of each financial year. The AG will therefore audit, analyze and submit findings to the national assembly and the Senate.
6. Salaries and Remuneration Commission
The SRC has replaced the former Permanent Public Service Remuneration Review Board established in 2003. The role of the SRC is to set and review the salaries of State officers, and to advise the national and county governments, on the remuneration and benefits of all other public officers (Constitution Article 230 State officers are defined to include the President, members of the executive, governors, and members of county executive committees, Members of Parliament and county assemblies, judges and magistrates, members of constitutional commissions, and holders of various offices established under the Constitution.
For all other public officers, the SRC will not determine salary levels, but will merely advise on them (Constitution Article 260).
Transition Authority has been established under the Transition to Devolved Government Act. Its functions include carrying out a human resource audit of government and local authorities,assessing capacity needs, and recommending measures to ensure county governments have adequate capacity during transition (Transition to Devolved Government Act Section 7(2)(h) (m), and Challenges in budget making With devolution barely off the ground, county governments are grappling with the challenges of drawing their budgets.
The 47 counties have both faced daunting tasks budgeting with the initial Kshs 210 billion ($2.5 billion) allocated to them by the Commission for Revenue Allocation.
The counties are hard placed to meet the people’s expectations unless they put every single penny to the right budget.
With the huge inherited debts, inefficient revenue collection systems, ambitious spending targets and limited allocations from the national government – counties got a total of Kshs 210 billion($2.5 billion), against a request for Ksh258 billion ($3 billion) from the Commission on Revenue Allocation (CRA) – most counties are likely to prove little more than consumption stations in their first year of existence, with very little development expenditure taking place.
But there are hoping things will improve as the devolution clock ticks on.
Using the latest audited figures of Sh 610 billion in government revenues collected last year, the CRA proposes distributing Kshs 200 billion to the counties leaving the national government with Kshs 41 billion for its operations.
Unveiling its formula for revenue sharing amongst Kenya‘s 47 counties, the CRA said 60 percent of the funds to the counties or Kshs 120 billion should be allocated on the basis of each county’s population.
The formula has five parameters for calculating how much of the Kshs 200 billion pot each county Will get-population (60 percent), basic equal share (20 percent), poverty level (12 percent), geographical area (6 percent) and ﬁscal responsibility (two percent).
Of the money devolved to the counties, 20 percent will be divided equally under What the CRA calls the Basic Equal Share to cater to fixed expenses which every county has irrespective of size, population and poverty level.
The cost of service delivery will depend on the size of the county and allocated six percent to be shared out based on a county’s land size. Counties who ensure fiscal management and exploitation of revenue potential by doing the most with what they have been provided will get a chance of getting a share of the two percent which will be allocated for ﬁscal responsibility.
The office of the Controller of Budget will not release funds to counties whose budgets and relevant appropriations Bills have not been approved by county assemblies.
Functions of county governments in Kenya – Devolution in Kenya
Although there has been a debate on how the national and county governments should share the functions, the Constitution is clear on the functions.
Schedule 4 of the Constitution spells out functions to be devolved to county governments. They include:
- County health services (excluding national referral hospitals such as Kenyatta National Hospital in Nairobi County and Moi Teaching and Referral hospital in Uasin Gishu County.
- Pollution control
- Cultural activities
- County transport
- Animal control and welfare
- Trade development and regulation
- County planning and development
- Pre-primary education
- Implementation of specific national government policies
- County public works
- Fireﬁghting services and disaster
Functions of national government in Kenya
- Foreign affairs
- Use of international waters and water resources
- Immigration and citizenship
- Religion and State
- Language policy
- National defense
- Police service
- National economic policy
- Monetary policy
- National statistics
- Intellectual property rights
- Labor standards
- Consumer protection
- Education policy
- Primary schools
- Promotion of sports and sports education
- Transport and communications
- National public works
- Housing policy
- General Principals of land planning and the coordination of planning by the counties
- Protection of environmental and natural resources
- National referral health facilities
- Disaster management
- Ancient and historical development monuments
- National elections
- Health policy
- Agricultural policy
- Veterinary policy
- Energy policy
- Capacity building and technical assistance to the counties
- Public investments
- National betting
- Tourism policy
The allocation of these roles has remained contentious because the county governments are expected to apply to the national governments over the functions they were ready to undertake, for which they will be assessed.
County governments’ revenue
The national government gets its revenue from the four main sources, namely income tax, excise tax, value-added tax and import and export duty.
The county governments are supposed to get a minimum 15 percent from national government allocation according to the Constitution(the Jubilee government has given
Being a sensitive matter, the CRA worked on a formula to help it share the revenue among national and the 47 governments.
Cai = Pi+PVi+Ai+BSi + FRi
Ca=Revenue allocated to county
Pi =Revenue allocated to a county on the basis of the population parameter.
PVi = Revenue allocated to the county on the basis of the poverty gap parameter.
Ai= Revenue allocated to a county on the basis of land area.
BSi= Revenue allocated to a county on the basis of basic equal share parameter. This is shared equally among the 47 counties.
FRi= Revenue allocated to a given county on the basis of ﬁscal responsibility. This is shared equally among the 47 counties.
According to CRA, the allocations have been pegged on the following parameters:- Population (45 percent), Equal Share (25 percent), Levels of poverty (20 percent), Land area (8 percent) and Fiscalresponsibility (2 percent).
County governments will get their revenue from the following sources:
- Equitable share of the national revenue Loans for capital projects guaranteed by the national government
- Direct donor grants
- County revenue includes property taxes, entertainment taxes, local fees and any other taxes authorized by Parliament.
- Conditional or unconditional allocations from the government
- Allocations from the Equalisation Fund
- Residents voluntary contributions
- Partnerships with private sector passing of projects by County Assembly and asking the national government to fund them.
- Licenses and fees in the 14 devolved functions.
Death of Local Authorities in Kenya
With the birth of the 47 county governments, the death of the 175 local authorities became inevitable.
They were created under the Local Government Act Cap 265 in the old constitution.
All the assets and staff of the defunct local authorities have been taken over by the county governments, which now have to grapple with the huge debts and bloated staff inherited from the civic bodies. The Act under which the local authorities were created was repealed on the final announcement of all the results of the first election held under the 2010 Constitution.
Cities, towns and urban centers that were managed by the local authorities will now be run by appointed managers and administrators.
Senate and National Assembly in Kenya
The two legislative houses have different roles. The number of members of the National Assembly is based on the proportional representation according to the population size of a country. The Senate, on the other hand, represents the 47 counties. Both houses represent the entire county, with the number of members of the National Assembly being based on the size of the population of each county, while the Senate has one representative for each county.
The role of the Senate and the National Assembly is to pass laws that ensure the 35 national roles and the 14 county roles are achieved.
Currently one can summarise the roles of the National Assembly and Senate as passing bills on National Security, National Defence, National Disaster Management, National Roads Management, Basic Education, Foreign Affairs and Funding of at least 15 percent to County Governments to get them started.
Using this constitutional law, the County Assemblies can make their own laws that govern the county governments.
Distributing the devolved funds
The national government has adopted a phased transfer of funds to the county governments, amid stringent rules to help check possible misappropriation. For example, the governors would only be allowed to withdraw funds once a month. In the first distribution of the funds, populous counties received the most money shared between national and county governments with Nairobi, Kakamega, and Bungoma receiving over Kshs 7 billion ($80 million) each to top the list drawn by the Commission on Revenue Allocation.
Nairobi, with a population of 3.1 million would receive a total of Kshsll. 7 billion ($134 million) with population accounting for Kshs 9.75 billion ($112 million), poverty
Kshs 904 million ($10.4 million), land area Kshs 107 million ($1.2 million), fiscal responsibility Kshs 85 million ($977,000) and a basic equal share of Kshs 851 m ($9.7 million).
The figures represent CRA’s recommended allocations using 2012 audited government revenues and would see the national government retain 67 percent While 33 percent goes to the counties. The Constitution sets a minimum allocation of 15 percent of government revenues to go to the counties While Cabinet has recommended a 20 percent share to be devolved.
Laws can be made to give new powers to the counties. The system is to be phased in so that functions are transferred gradually to counties that can handle them, and not all counties need to get all the powers at the same time.
Although the national government can make laws about everything, including topics on which counties may make laws, national government law will take precedence only if there is a good reason for having national rather than county laws.
Flexibility is undoubtedly a good thing, but it requires complex systems of negotiation and decision making.
The constitution recognizes this and provides for co-operation between the national and county governments, with a critical role for the Senate as a sort of negotiating forum at the same time as it protects the interests of counties.
There are also mechanisms for ensuring that counties observe the rights of all the residents and carry out administration consistent with the values of devolution.
On the other hand, it is important that the national government realizes that devolution is an essential component of the new system of the state — and counties have constitutionally guaranteed status and powers — and resist the temptation to dictate to them.
Despite this positive framework, there are serious anxieties about devolution. Paradoxically, some are worried about too many powers being handed over to counties, others (like us) that too little power is guaranteed.
But we have noted above the flexibility in this regard. Some fear discrimination against minorities within the counties and the tendency of the dominant ethnic group to appropriate all county offices and resources.
Groups who have migrated into a county in recent times are fearful even of eviction. We must take these anxieties seriously.
The constitution does deal with them. All citizens have equal rights where ever they live, and the Bill of Rights has a strong system of enforcement.
Some autonomy can be provided for minorities located in areas where they are numerically predominant through local government. Minorities are to be proportionally represented in county assemblies and the executive.
Ultimately, there is an authority for the national government to intervene in a county which violates the rights of its residents (under the category of “exceptional circumstances”), after an enquiry by an independent commission.
Increase national unity
While fear of discrimination is understandable, it is important to remind ourselves that an important purpose of devolution is to increase national unity, not threaten it.
Leaders at the county level, as much as at the national level, have constitutional obligations to promote inter-ethnic harmony, social justice and the protection of human rights.
Groups that have suffered in the past due to vindictive policies of the central government will now find it easier, through the county system, to feel secure, participate in public affairs, negotiate with the national government and integrate politically.
If this happens, national unity will be strengthened. And this will be assisted by the requirement of equitable distribution of resources, and special help to the less developed counties.
There are also anxieties about the financial implications of devolution. The costs attributed to devolution are not new costs: we already have budgets for districts, including for county councils, some items of the existing central government budget will be transferred to counties as the functions are transferred, and we already have some funds which are regularly earmarked for districts.
Hopefully, the Salaries and Remuneration Commission will establish realistic salaries for public officers, and the law might consider providing only allowances, not salaries, for members of county assemblies, as their functions will not call for full-time commitment — an approach favored by the CKRC.
But, more importantly, there is no “zero-sum” arithmetic in these matters. Devolution has the potential to open up new opportunities for economic development, and the rise of new growth centers as county governments feel the pressure to deliver to the new electorates.
We need to put devolution in the context of the new constitution. The constitution is about democratization, with the people at the center of the political system. Devolution can be very empowering, as the example of India and several other countries have shown.
But it will not happen automatically, and we need to remind ourselves how horribly wrong directions county governments can take. Those who are already savoring prospects of governorships, senatorships, and other lucrative offices should remember that the new constitution is about service to the people, the integrity of leadership, the criminalization of incitement to ethnic hatreds, the promotion of fair administration, and ultimately inclusion of all. The constitution also calls upon the people to see to it that the leaders they choose respect these values.