2015/16 Yearbook Devolution

Devolution in Kenya: An overview

Kenya celebrated the Devolution’s second year in April 2015 with a conference in Kisumu, which was addressed by both President Uhuru Kenyatta and oppositiopn leader Raila Odinga.

The Kisumu conference was organised by the Council of Governors (CoG).

While there are challenges facing the implementation of devolution, there is a consensus across the ever-widening political divide that the new architecture is changing the country one project at a time.

“Even the worst pessimist will agree that despite its many challenges, devolution is relatively one of the greatest successes of our new constitutional architecture. The most obvious effect of devolution is the distribution of resources and spread of development to hitherto unimaginable villages. Less obvious but just as important is the way devolution has dispersed leadership, thus reducing the political and social risks of the previously winner takes all,” lawyer Kamotho Waiganjo, a commissioner with the Commission for the Implementation of the Constitution (CIC) wrote in an opinion piece published in a local daily on April 26, 2015.

Opinion polls have also consistently returned a positive report about the decentralisation of power and resources, which was enabled by the Constitution that was passed in 2010.

An opinion poll whose results were released in April 2015 revealed that 78 per cent of Kenyans think devolution is good for the country’s economic and political prospects.

However, the Auditor General’s reports speak of spending on non-essential things, irregular procurement and even outright theft of public resources.

Another glaring problem related to finances is the glaring tendency to skip spending meant for development, although devolution is first and foremost about development.

Of the 175 officials named in a corruption dossier handed over to President Kenyatta by the Ethics and Anti-Corruption Commission (EACC) early in 2015 and tabled in Parliament, 12 of the 47 governors featured.

A World Bank report released in February revealed that only 10 out of the 47 counties met the 30 per cent lower ceiling in development expenditure with most of the resources going to the recurrent budget.

The report showed that most county governments spent huge amounts of money on salaries and wages, taking the lion’s share of 46 per cent while administrative expenditure gobbled up 30 per cent of the budget, leaving a paltry 20 per cent or less for development.

As if denying the development vote resources is not bad enough, county governments ironically still found it very difficult to utilise the little that they set aside for projects meant to improve people’s lives.

In a report published in September 2014, the Office of the Controller of Budget revealed this disturbing slow absorption of development funds. Most of the counties could hardly put a quarter of development money into projects.

“Low absorption of development funds at 25 per cent of the annual development budget was attributed to challenges in planning and the procurement process,” said the Controller of Budget Agnes Odhiambo.

Interestingly, counties have often been accused of overshooting the ceiling on other areas of expenditure particularly on travel budget. For example, a report by the Controller of Budget revealed that in the first nine months of the 2014/2015 financial year, counties had spent Kshs5.7 billion on domestic and foreign travel and Kshs2 billion on sitting allowances.

Money matters aside, devolution’s most pronounced teething problem has been turf wars between leaders at various levels. But governors appear to be the ones fighting many wars on different fronts. They have been engaged in endless turf wars with the national government, senators and MCAs.

The upshot of this has been several governors facing impeachment motions or being summoned by the Senate. While there have been several attempts to impeach the county chiefs, only one – that of Embu Governor Martin Wambora – has gone past the Senate stage.

But even in his case, he remains in office after the Supreme Court ruled in his favour after a protracted battle.

Another highlight of the unceasing wars between governors and the Senate was the passing of a controversial law creating County Development Boards, which were to be chaired by Senators.

The role of the County Development Boards is to deliberate on development affairs and projects. They were to bring together Governors, Senators, MPs, MCAs and other national government and county leaders but the High Court has since excluded Senators and MPs.

High Court Judges Isaac Lenaola, Mumbi Ngugi and George Odunga, while ruling on a case filed by governors, found that the National Assembly and Senate have clear roles under Articles 95 and 96 of the Constitution respectively, none of which extend to functions reserved for counties. The Senators had allocated themselves the position of chair with Governors as their vices.

They opined that Parliament does not legislate for county governments and its functions do not include “the preparation and development of plans and budgets for counties”.

“The composition and mandate of the CDBs upsets and is in violation of the framework created by the Constitution with respect to devolution and the separation of powers between the various institutions created under the Constitution which leaves the approval of the county development plans and budget to the county assemblies…The involvement of Senate, National Assembly and national executive in the CBD violate the tenets and the principles of the Constitution,” the judges ruled.

Devolution of functions to the counties has been a major source of friction particularly between the national government and the governors. So far there has been transfer of several functions but there is still a great deal of confusion and controversy on what and how much is supposed to be devolved.

In May 2014, President Uhuru Kenyatta announced that he had delegated 10 executive functions to county commissioners, a move which immediately drew the ire of the Opposition and the Council of Governors.

The national government, in empowering of county commissioners, meant to enhance delivery of services to the public particularly in areas such as security and tackling the growing problem of illegal alcoholic substances.

Governors also wanted the Devolution ministry to be done away with.

Governors have also opposed the national government’s initiative of leasing high-tech medical equipment, claiming the national government was trying to take back the devolved health function.

Transfer of workers from the national government to the counties has caused wrangles between the two levels of government.

According to the Transition Authority, there are still many functions retained in Nairobi that are supposed to be devolved functions whose implementation and funding should be taken to the counties while costing of devolved functions is still pending.

Retained county functions include;

  1. Free primary healthcare
  2. Registration of self-help groups and community based organisations
  3. District government estate management
  4. Development of integrated spatial plans for counties in Arid and Semi-Arid Lands (ASAL) areas
  5. Construction of medium-sized and large dams and protection of riparian zones.

All the foregoing challenges notwithstanding, devolution is beginning to bring about tangible transformation.

This change is manifested in projects such as better road networks in areas that had virtually none in the past, improved educational and health facilities, well-lit urban centres and many other development projects that have not only improved the economic prospects of the locals but also created employment.

For example, during the Devolution conference in April 2015, governors announced that some 7,000 kilometres of roads had been tarmacked or improved in the last two years, thanks to devolution.

“We have opened up places and towns that did not know development in the last 50 years. We have put a smile on the faces of millions of Kenyans and all of us should work to promote devolution,” said the Council of Governors chairman Isaac Ruto.

At the conference, both President Kenyatta and former Prime Minister Raila also agreed with majority of Kenyans that devolution could in the long run prove to be a development masterstroke for this country.

President Kenyatta said devolution – which he described as the single greatest economic and socio-political innovation of the 2010 Constitution – is the key to national transformation.

“It is the core around which every component of our dispensation’s paradigm shift is arranged. Devolution is at the heart of our national rebirth and because of its significance,” the President said.

“We have tasted the fruits of devolution. We have seen its promise. Although we are in the early years of entrenching the system, we are all aware of its prospects.”

Other challenges facing devolution

The Transition Authority’s 2015 report to Senate notes that the transfer of functions to county governments was not without challenges. Some of these include confusion over functional definitions and implementation.

For example, transfer of betting, casinos and other forms of gambling and pre-primary education have had teething problems.

The role of counties in management of environment, forestry, land and natural resources is also not clearly defined. Other teething problems included lack of constitutional and legal framework of public financial management, planning, budgeting, budget execution, accounting and reporting.

TA had to begin from scratch in enabling counties in their preparation of annual development plans, sectoral plans, and the County Integrated Development Plans (CIDPs).

The transfer of political and administrative power was also done without sufficient financial powers to sub-national governments (former districts) with a view to improving access, efficiency and responsiveness of service delivery, promoting participation and empowering citizens to demand accountability and performance.

Other challenges include inadequate capacity by counties to perform assigned functions, intergovernmental relations issues, supremacy wars, political patronage especially in the human resource management and insecurity, which has hampered smooth delivery of services.

Delays in enacting legislation on management of roads at the county level, amending the Urban Areas and Cities Act 2011 to streamline classification and numerous litigations and court proceedings concerning the mode of the transfer of functions and delivery of concurrent functions such as health and roads have also hampered smooth devolution.

The role of the provincial administration in the devolved system of government has also continued to prove a headache in implementation of the same.

While the Constitution dictates that the structure was to be reformed to accord with the devolved system, the national executive pushed through legislation that largely retained it in its former shape leading to competing exercise of power and authority between county commissioners and governors.

The public administration set up has also not changed to be in line with the new system of government.

Confusion over who between the national and county governments is responsible for what role abounds.

Organs of Devolution

(i) The Senate

The senate is provided for under Article 96 of the Constitution. It comprises 47 elected and 20 nominated members, majority of whom are women.

Its roles include:

(a) To represent the counties, and serves to protect the interests of the counties and their governments.

(b) To participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

(c) To determine the allocation of national revenue among counties, as provided in Article 217, and exercises oversight

(d) To participate in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.

(e) To participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.

(ii) Council of Governors

The Council of Governors of Kenya is a non-partisan organisation established under Section 19 of the Intergovernmental Relations Act 2012. It comprises the Governors of the 47 counties. Bomet Governor Isaac Ruto was the first occupier of the office and Governor Peter Munya of Meru County is the currently serving as chair.

Functions of the Council under section 20 of the Act are as follows:

  1. a) Consultation amongst county governments;
  2. b) Sharing of information on the performance of the counties in the execution of their functions with the objective of learning and promotion of best practice and where necessary, initiating preventive or corrective action;
  3. c) Considering matters of common interest to county governments;
  4. d) Dispute resolution between counties within the framework provided under the Act;
  5. e) Facilitating capacity building for governors;
  6. f) Receiving reports and monitoring the implementation of inter -county agreements on inter-county projects;
  7. g) Consideration of matters referred to the Council by a member of the public;
  8. h) Consideration of reports from other intergovernmental forums on matters affecting National and county interests or relating to the performance of Counties; and
  9. i) Performing any other function as may be conferred on it by this Act or any other Legislation or that it may consider necessary or appropriate.

Through the Council, Governors identify priority issues and deal collectively with matters of Public Policy and governance at the County and National levels.

(iii) County Executive Committees

Article 179 of the Constitution establishes County Executive Committees and vests them with executive authority of the counties.

They comprise the governor and his deputy, 10 members appointed by the governors with the approval of the county assembly from persons who are not members of the assembly. Also referred to as the County Cabinet, they run key service delivery departments.

(iv) County Assemblies

Members of the County Assembly are either elected to represent various wards within a county or nominated. They debate issues concerning the management of the county, pass budgets, vet governors’ nominees and pass Bills.

The Assembly is constituted per the provisions in section 177 (a), (b), (c) and (d)of the Constitution and Section 7(1) and (2) of the County Governments Act 2011.

The County Assembly has a speaker, majority leader and the minority leader. Every County Assembly has a life span of five years, as explained in section 177 (4) of the Constitution.

The Assembly consists of members elected by registered voters in the Wards, members allocated special seats, such as women nominees and members of marginalised groups, including persons with disabilities.

Other key constitutional offices with mandate on devolution

(i) Commission for the Implementation of the Constitution

The Commission is established under Section 5 (6) of the Sixth Schedule of the Constitution. The mandate of CIC includes monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the Constitution and coordinating with the Attorney General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement this Constitution. These includes legislation relating to devolution.

(i) The Transition Authority

This is the official vehicle to devolution. It was formed to oversee a smooth transition from the centralised government to the devolved governments. It has 17 members, a chairperson and members appointed by the President, and Permanent Secretaries appointed by line ministries. Kinuthia wa Mwangi is the chairman.

The Transition Authority (TA) is expected to execute its mandate within three years following the first General Election held on March 4 2013.

Its mandate spelt out in Section 8 (2) of the Transition to Developed Government Act includes: –

  1. Distribution of assets between the national and county governments and ensuring these assets are not lost during the transition period.
  2. Managing the three-year transition period through distribution of staff to county governments.
  3. Collecting relevant information from any source, including state departments for smooth transition.

The Transition Authority has been under sharp scrutiny as it midwifes the tricky devolution process. Established under Section 4 of the Transition to Devolved Government Act of 2012, the Authority’s object is to provide a framework for the transition to 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 of 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 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 Transition Authority had already developed preliminary tools to prepare for county assemblies successful initialisation 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 transfer of assets was issued and regulations for the management of transfer of management of assets has also been developed.

An inventory of assets and liabilities of both national Government and the former local authorities are stored in an Integrated National and County Asset Register Centre at the Office of the Auditor General.

According to the TA’s latest report to the Senate, the assets and liabilities of defunct local authorities are worth Kshs40 billion and public participation and validation exercise is underway in all the counties.

(iii) Commission on Revenue Allocation (CRA)

This commission, established under Article 215 of the Constitution, is the heart beat of devolution. Headed by former Central Bank Governor Micah 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 device ways of encouraging fiscal responsibility.

Article 216 (4) of the Constitution also requires that it determines, regularly reviews and publishes marginalised areas that need equalisation funds, money given to areas with high prevalence of poverty.

Shareable revenue

Article 203(3) of the Constitution states that shareable revenue shall be calculated based on the most recent audited accounts of revenue received as approved by the National Assembly.

The CRA is also mandated to determine, publish and regularly review a policy which guides in the identification of marginalised areas to benefit from the Equalisation Fund.

Besides identifying these areas, the commission also guides in the planning, implementation and monitoring and evaluation in the use of equalisation funds.

Criteria for identifying marginalised areas include:

  1. Legislated discrimination
  2. Geographical location
  3. Culture and lifestyle
  4. External domination
  5. Land laws and administration
  6. Minority recognition groups
  7. High levels of absolute and relative poverty
  8. Poor infrastructure
  9. Poor state of basic and social services
  10. Poor governance.
  11. According to the Constitution (Article 260), a marginalised community is:
  12. That which 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.
  13. A traditional community that out of a need or desire to preserve its unique culture and identity from assimilation has remained outside the integrated social and economic life of Kenya.
  14. An indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter and gatherer economy.
  15. 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 marginalised and will therefore get additional funding.

  1. Turkana
  2. Mandera
  3. Wajir
  4. Marsabit
  5. Samburu
  6. West Pokot
  7. Tana River
  8. Narok
  9. Kwale
  10. Garissa
  11. Kilifi
  12. Taita Taveta
  13. Isiolo
  14. Lamu

The Equalisation Fund forms 0.5 per cent of the total allocation to the county governments and is effective for three years before it can be reviewed.

Overall, by a resolution passed in November 22 2012, the National Assembly resolved in pursuant of Article 217 of the Constitution, the basis of revenue sharing shall be as follows: Population (45 per cent), Poverty Index (20 per cent), Land Area (8 per cent), Basic Equal Share (25 per cent) and Fiscal Responsibility (25 per cent).

This gives the formula:  Cai = Pi+PVi+Ai+BSi + FRi

Where:

Ca=Revenue allocated to county

i=1,2………47.

Pi =Revenue allocated to a county based on population parameter.

PVi = Revenue allocated to a county based on poverty gap parameter.

Ai= Revenue allocated to a county based on land area.

BSi= Revenue allocated to a county based on basic equal share parameter. This is shared equally among the 47 counties.

FRi= Revenue allocated to a given county based on fiscal responsibility. This is shared equally among the 47 counties.

Though the Constitution stipulates that a minimum of 15 per cent of national shareable revenue based on latest audited accounts be allocated to counties, the first two years’ allocation was disputed due to auditing delays even as the national government said it had gone out of its way to give counties more that the supreme law dictates.

There have also been disputes over the role of the Senate in formulating the Division of Revenue Bill vis-a-vis the National Assembly, with the matter being adjudicated in its favour by the Supreme Court.

In the 2015/16 budget, a total of Kshs287 billion was allocated to counties but there were differences between the two Houses after the Senate gave counties more funds for referral hospitals and emergencies. After mediation, the National Assembly gave out the funds but not without getting Kshs3.3 billion from the Senate, the Judiciary and the Salaries and Remuneration Commission to fill the gap.

While CRA has been conducting stakeholder discussions on the formula, there have also been arguments that this formula favours counties from northern Kenya. Population figures from these region, which are currently in use, are also the subject of a High Court case filed after the government disputed figures of the 2009 census that indicated abnormal surges.

(iv) Controller of Budget

This office 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.

The 47 counties have come under scrutiny over the way they have used funds over the last two years, including the initial Kshs210 billion.

But it is also true that the counties must cope with the many demands that the citizenry expected them to meet even before they could work.

(v) Auditor General

His main mandate as spelt 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, analyse and submit findings to the National Assembly and the Senate.

(vi) 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.

(vii) Public Service Commission

Under the new Constitution, the role of the Public Service Commission in relation to county public servants will be limited to hearing appeals from decisions of County Public Service Boards (Article 234).

There are 47 County Public Service Boards established under the County Governments Act whose members are 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).

References

  1. County allocation of revenue graphs check attached from page 137 – 143 of attached KENYA GAZETTE supplement Acts 2015 of 29th July, 2015