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TAITA TAVETA UNIVERSITY

HRD 2102: Development Studies & Ethics
Lecturer: Dr. Mjomba Majalia
[email protected]

Devolved Governments in Development

According to ICJ (2013) devolution is the process of transferring decision-making and
implementation powers, functions, responsibilities and resources to elected local governance
structures. Devolution in Kenya is based on:

1. The supremacy of the Constitution,

2. Sovereignty of the people; and
3. The principle of public participation.

Supremacy of the Constitution means that the devolution is no longer optional and
discretional. It is solidly established by the supreme law and everyone including state and
private entities must be bound by that reality. Further, the fact that devolution is buttressed by
the sovereign power of the people means that whatever governance aspirations and
commitments are done at both national and counties levels of governance shall be done on
behalf of and for the people. Indeed Article one of the constitution clearly stipulates that all
state organs exercise their powers as delegated by the Kenyan people. Kenyans have a choice
to exercise these powers either directly or indirectly through state organs – at both levels of
government.
It is also important to note that devolution in Kenya is also based on a public participation
constitutional principle. That is to say that although state organs at both levels of government
exercise delegated powers from the people, the same people do retain some residual powers
and constitutional rights to be engaged on all major decisions made on their behalf by those
elected or appointed into state offices.

The Conceptual basis of devolution in Kenya

On 27th August 2010 Kenya promulgated a new constitution that would change the landscape
of the country in terms of governance. The new constitution stipulated the dissemination of
resources both political and economic from a centralized system of governance to the people
in the grassroots in a process called devolution by providing a clear administrative framework
between the National and County Government. This was meant to encourage a bottom-up
approach of participation in development as opposed to the traditional top-down approach of
governance which meant some regions in the country remained marginalized in terms of
development. It envisages a relationship of both mutuality and independence. Chapter Nine
of the constitution contains the principal and structure of the National government with
Chapter Eleven on the other hand containing the objects and principles of the devolved
government.
According to the World Bank report on decentralization and sub-national economics:
When governments devolve functions, they transfer authority for decision-making, finance,
and management to quasi-autonomous units of local government with corporate status.
Devolution usually transfers responsibilities for services to municipalities that elect their own
mayors and councils, raise their own revenues, and have independent authority to make

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investment decisions. In a devolved system, local governments have clear and legally
recognized geographical boundaries over which they exercise authority and within which
they perform public functions.
The devolved form of government in Kenya is very ambitious because it collapsed three
previous levels of administrations into one level. That is to say, the current counties resulted
from the collapse of former provincial administrations, local authorities and national
functions that were being done at the local levels
Devolution in Kenya would need to be seen in the context of Kenyans historical clamor for
equitable distribution of national resources. For a time, it was perceived that central
government had skewed arrangement where certain regions in Kenya did benefit more from
state resources and developmental programs. Further, devolution clamor was informed by
Kenya being a very diverse country with over forty two ethnic groups; diverse climatic
realities with northern Kenya being arid and semi arid and other areas being arable among
other political and economic realities (World Bank, 2012).
Actually, the strong provisions for devolution in the new Constitution were a key source of
public support for the draft of the Constitution. The World Bank (2012) has indicated that just
under 20 percent of supporters of the new Constitution did so because of the strong
provisions for devolution; this is the second most common response after a simple desire for
change, which measured at just over 20 percent.
The actual philosophy and reason behind Kenyans’ majority support for devolution can be
deduced from the constitution itself. A consideration of the objectives and principles of
devolution as clearly itemized in article 174 and 175 of the constitution would make these
aspirations of Kenyans more clearer.

The objectives of devolution in Kenya

The objectives of devolution essentially outline the sovereign reasons why Kenyans
overwhelmingly voted for the new constitution whose one of the major highlights are
devolution promises and commitments. These objectives include:
a) To promote democratic and accountable exercise of power;
b) To foster national unity by recognizing diversity;
c) To give powers of self-governance to the people and enhance the participation of the
people in the exercise of the powers of the State and in making decisions affecting them;
d) To recognize the right of communities to manage their own affairs and to further their
development;
e) To protect and promote the interests and rights of minorities and marginalized
communities;
f) To promote social and economic development and the provision of proximate, easily
accessible services throughout Kenya;
g) To ensure equitable sharing of national and local resources throughout Kenya;
h) To facilitate the decentralization of State organs, their functions and services, from the
capital of Kenya; and,
i) To enhance checks and balances and the separation of powers.

Principles of Devolved Government

Several principles of devolution need to be considered when implementing devolution. These
are embedded in the three principles stated in Article 175 of the Constitution. Therefore,
County governments established under the Constitution would, as a constitutional obligation,
reflect the following principles:
a) County governments shall be based on democratic principles and the separation of powers;
b) County governments shall have reliable sources of revenue to enable them to govern and

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deliver services effectively; and,

c) No more than two-thirds of the members of representative bodies in each county
government shall be of the same gender.
The legal framework and devolution
It is important to note that devolution is now a constitutional reality. The provisions in the
constitution on devolution are actually insulated and cannot be amended by parliament. Any
amendment on this chapter would require a direct mandate from the people of Kenya through
a referendum. Further, the constitution obligated parliament to pass specific laws that would
cement both the spirit and letter of devolution into the Kenyan governance architecture. The
legal framework on devolution include: –

1. The Constitution
The constitution is the main legal backbone of the entire devolution architecture. It outlines
the objectives and principles of devolution, the actual governance structures at this level, the
relationship between national and county governments, the functions that have been devolved
to counties among others. All other laws borrow and derive their authority from the
constitution.

2. The County Governments Act, 2012

This is the main legislation after the constitution. This law outlines the entire framework of
the constitution including the two arms of government at the county level; the county
assembly and executive.

The County Governments Act, 2012 stipulates the structure, functions and operations of the
county assembly including its membership, election and removal of the speaker as well as the
entire staffing arrangement of the assembly. The Act also provides for the entire arrangement
of the county executive including the appointment, and removal, procedures of county
executive committee members, chief officers, county secretaries and other senior staff at that
level. The law further provides for the powers and functions of the governor and his or her
deputy.
The law also provides, pursuant to Article 200 of the Constitution, for the manner of
nomination or appointment of persons to, and their removal from, offices in county
governments, including the qualifications of voters and candidates; the procedure of
assemblies and executive committees including the chairing and frequency of meetings,
quorums and voting; and the suspension of assemblies and executive committees.
It is important to note that this law came into effect immediately after the last general
election. It therefore follows that the law would need to be re-evaluated and possible
amendments included to make it more contextual and speak to prevailing realities. For
example, the law does not envision a desired complete dichotomy of staffing between the
county assembly and county executive at county level. Although the law provides for both
county assembly service board as well as county public service board to recruit and manage
staff, it does not completely give space for the two boards to conclusively deliver on their
mandate with absolute independence from the other.

Devolution in Kenya
Functions for both County and National governments are spelled out in the fourth schedule of
the constitution and the Transition Authority Gazette Notice 2013. The National Government
has a preserve of thirty four functions while the County Government preserves fourteen
functions as spelled out below;

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Functions of the National Government

1. Foreign affairs, foreign policy and international trade.
2. The use of international waters and water resources.
3. Immigration and citizenship.
4. The relationship between religion and state.
5. Language policy and the promotion of official and local languages.
6. National defense and the use of the national defense services.
7. Police services.
8. Courts.
9. National economic policy and planning.
10. Monetary policy, currency, banking (including central banking, the incorporation and
regulation of banking, insurance and financial corporations.
11. National statistics and data on population, the economy and society generally.
12. Intellectual property rights.
13. Labor standards.
14. Consumer protection, including standards for social security and professional pension
plans.
15. Education policy, standards, curriculum, examinations and the granting of university
charters.
16. Universities, tertiary educational institutions and other institutions of research and
higher learning and primary schools, special education, secondary schools and special
education institutions.
17. Promotion of sports and sports education.
18. Transport and communications.
19. National public works.
20. Housing policy.
21. General principles of land planning and the coordination of planning by the counties.
22. Protection of the environment and natural resources with a view of establishing a
durable and sustainable system of development.
23. National referral health facilities.
24. Disaster management.
25. Ancient and historical monuments of national importance.
26. National elections.
27. Health policy.
28. Agricultural policy.
29. Veterinary policy.
30. Energy policy including electricity and gas reticulation and energy regulation.
31. Capacity building and technical assistance to the counties.
32. Public investment.
33. National betting, casinos and other forms of gambling.
34. Tourism policy and development.

Functions of the County Government

1. Agriculture.
2. County health services.
3. Control of air pollution, noise pollution, other public nuisances and outdoor
advertising.
4. Cultural activities, public entertainment and public amenities.
5. County transport.
6. Animal control and welfare.

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7. Trade development and regulation.

8. County planning and development.
9. Pre-primary education, village polytechnics, home craft centers and childcare
facilities.
10. Implementation of specific national government policies on natural resources and
environmental conservation.
11. County public works and services.
12. Firefighting services and disaster management.
13. Control of drugs and pornography.
14. Ensuring and coordinating the participation of communities and locations in
governance at the local level and assisting communities and locations to develop the
administrative capacity for the effective exercise of the functions, powers and
participation in governance level.

Intergovernmental Relations Act, No. 2 of 2012

This law provides for a framework for consultation and co-operation between the national
and county governments. This law appreciates the fact that Kenya remains as one country.
The counties and national government are expected to consult and work together for the
wider good and service delivery to the citizens. The law establishes institutional structures
and mechanisms for intergovernmental relations as well as a framework for the inclusive
consideration of any matter that may affect relations between the two levels of government
and amongst county governments.
Evidently, this law would need to be reviewed. Although the law provides for the summit
where the President and county governors should meet and resolve any dispute that may arise
between the two levels of government, there has persistent wrangles between the national and
county governments. The summit has not met as regularly as would be expected and
therefore the possible reason these disputes have not been resolved promptly explained by
Roselyne Obala (2014). A review of this law would, for example, include the minimum
number of meetings the summit would meet among other matters.

Transition to Devolved Government Act, No. 1 of 2012

This law provides for a legal and institutional framework for a coordinated transition to the
devolved system of government while ensuring continued delivery of services to citizens.
Principally, it provides for establishment and operations of Transition Authority.
The Transition Authority (TA) is established under section four of the Act as a statutory body
with the mandate of facilitating and coordinating the transition to the devolved system of
government. The Authority is expected to execute its mandate within three years following
the first General Election held on March 4, 2013. The Transition Authority has seventeen
members, nine of whom are full time and a secretariat.
The Transition Authority has issued many advisory instruments to county governments
including on appointments of the executive committee members; classification of urban areas
and cities and transfer and transition of county and national assets at the county level.
The Transition Authority has limited tenure as provided for under this law. The Transition
Authority’s residual mandate will essentially transit into possibly an inter-ministerial
committee housed under the Ministry of Devolution.

National Government Co-Ordination Act, No. 1 of 2013

This Act, passed in 2013, provides for the establishment of an administrative and institutional
framework at the national, county and decentralized units to ensure access to national
government services in all parts of the republic. The law also provides for the overall

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coordination and administration of the national government functions both at national and
county levels. This law has not necessarily eased the tension between the national and county
governments. Indeed there has been a heated national discourse around the relationship
between the two levels of government. Obuya Bagaka (2010) in light of this tension has
said:-
‘The Provincial Administration will also need to re-orient its officials towards the broader
concept of devolution, and more specifically re-train them on the implications of the politics
of devolution. As laid out in the 2010 Constitution, Kenya’s politico-administrative system
will comprise the national and county governments headed by politicians. At the county
level, politicians such as governors will be accountable to their electorate and thus will not be
controlled by the central government.’ Moving forward, there will be need to re-evaluate the
relationship and inter-linkages between the national and county governments and how this
can be strengthened and systematized.

Public Finance Management Act, 2012

This is an extremely important law on public finance and management. This law provides
that public officers who are given responsibility for managing the finances are accountable to
the public for the management of those finances through parliament and county assemblies.
It will be important to consider this law moving forward to establish whether its water-tight
in ensuring accountability of public finance and management.

Other over-arching frameworks

1. National Assembly and Senate
The constitution establishes other enabling framework whose main is to promote and protect
devolution and devolved governments. These include both the National Assembly and
Senate.
Articles 109 to 113 of the Constitution notes that senate has a specific mandate to protect
devolved governments. The constitution provides that the main role of senators is to represent
the counties, while also serving to protect the interests of the counties and their governments.
The senate also determines the allocation of national revenue among counties, as provided for
in article 217, and exercises oversight over national revenue allocated to the county
governments.
There is ongoing national discourse on whether the senate actually is protecting the counties.
According to Jane Goin (2014):
“Eventually we shall go to the Supreme Court for constitutional interpretation on the
functions of the assemblies vis-a-vis the functions of the Senate because the Senate is calling
the executives; we are also calling the executive asking the same question,”

2. Constitutional commissions and Independent Offices.

The Commissions and Independent offices are listed under article 248 of the Constitution.
These commissions and independent offices have a bearing, in one way or the other, on
devolved governments. The actual interface between the commissions and independent
offices is not within the purview of this paper. These commissions and independent offices
include:
a) Commission for the Implementation of the Constitution (CIC);
b) Commission on Revenue Allocation (CRA);
c) Independent Electoral and Boundaries Commission (IEBC);
d) Judicial Service Commission (JSC);
e) Kenya National Human Rights and Equality Commission
f) National Land Commission (NLC);

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g) National Police Service Commission (NPSC);

h) Parliamentary Service Commission (PSC);
i) Public Service Commission (PSC);
j) Salaries and Remuneration Commission (SRC); and,
k) Teachers Service Commission (TSC).

3. The Independent offices are:

a) Auditor-General.
This office is provided for in the new constitution. The office has statutory objective and role
of ensuring that resources are used and applied for the good of the public. The office ensures
that there is value for money and its prudent use.

b) Controller of Budget.
This office is also provided for under the new constitution. Its constitutional objective and
role is broadly to ensure that there is prudent and legal formulation and implementation of
budgets by both national and county governments.

Conclusion
Devolved governments are new. The counties only came in place in 2013 after the general
elections. This means that these five years are likely to be bumpy and a lot more experiential.
However, the expectations of Kenyans on service delivery remains high. This is after having
largely a central government since independence in 1963.
It has been noted in this paper that many laws and arrangements put in place are still being
tried and tested. It follows therefore that these laws will need to be reviewed and possibly
updated based on real experiences on the ground moving forward. An opportune time to
evaluate and review the devolution laws and arrangement would possibly be after the lapse of
this electoral tenure, in 2017.
This paper has sought to outline the over-arching devolved government architecture and
processes. Other and further studies would need to be done to specifically deal with various
aspects of the devolved government in a more comprehensive manner.

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References
Kenya Section of the International Commission of Jurists, 2013. Handbook of Devolution.
ICJ. Nairobi

World Bank (2012) Devolution Without Disruption; Pathways to a successful new Kenya.
World Bank. Nairobi

Roselyne Obala (2014) Insecurity dominates Uhuru, governors third Summit meeting.
Standard newspaper. Available at:http://www.sde.co.ke/pulse/article/2000144072/insecurity-
dominates-uhuru-governors-third-summit-meeting?pageNo=2

Jane Goin (2014) Senate usurping role of county assemblies, say MCAs. Available at:
http://www.capitalfm.co.ke/news/2014/10/senate-usurping-role-of-county-assemblies-say-
mcas/

Obuya Bogaka (2009) Restructuring the Provincial Administration : An Insider’s View. SID.
Nairobi.

Republic of Kenya (2010). The Constitution of Kenya. Government Printers. Nairobi

Republic of Kenya (2014) Laikipia County Public Participation Act. Government Printers.
Nairobi
Author: Hon. Patrick Mariru
Speaker: Laikipia County

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