Interim Report On Devolved Government

INTERIM REPORT OF THE TASK FORCE ON DEVOLVED GOVERNMENT
A Report on the Implementation of Devolved Government in Kenya
WEDNESDAY, APRIL 20, 2011
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DRAFT FINAL REPORT FOR TFDG EYES ONLY
LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED GOVERNMENT
Task Force on Devolved Government of Kenya

Wednesday, 20th April 2011
Mutakha Kangu Lucy Muthoni Kambuni Edward A. Oyugi Emmanuel Lubembe Eric M. Aligula Fatuma Ali Saman Gichira Kibara Hamisi Mboga Harriet Naitore Jelani Habib Joash Dache John Nguri Joseph W. Irungu Julius Malombe Kasembeli W. Nasiuma Kennedy Nyaundi Kenneth W. Akide Kibisu Kabatesi Marion Muriithi Nehemiah Ngeno Onesimus Murkomen Kipchumba
Prof. Karega Mutahi, CBS Permanent Secretary and Chairman, National Steering Committee Office of the Deputy Prime Minister and Ministry of Local Government Task Force on Devolved Government P.O. Box 30004-00100 Nairobi, Kenya Dear SUBJECT: TRANSMITTAL OF INTERIM REPORT OF THE TASK FORCE ON DEVOLVED GOVERNMENT
Pursuant to Legal Notice No. 12876 of 25 th October 2010 we wish to confirm and hereby do transmit to you the Interim Report. This Interim Report provides proposals covering, inter alia, the following issues, namely: Operationalization of the functions of each County, consistent with the Fourth Schedule of the Constitution; Restructuring of the Provincial Administration; Specifics of the County Financial Management System, including taxes and charges to be imposed by each county; Assistance to County governments in building their capacity to govern effectively and provide the services for which they are responsible; and Public communication and civic education matters relevant to devolved government. The Interim Report has also identified various policies, legislative and administrative measures that must be implemented for effective operationalization of devolved government as envisaged by the Constitution of Kenya 2010. We are embarking immediately on the next phase of our work. This is going to be one of consultation and consensus building, with stakeholders, around the proposals made as well as finalisation of the draft laws and regulations. We shall also finalise the benchmarking of proposals made in the Interim Report. We thank you for your continued support Yours faithfully,
Patrick Karanja Patrick O. Onyango Pauline Nyamweya Polycarp J.O. Ochilo Samuel G. Karicho Sylvester M. Osodo Winnie V. Mitullah Angeline Hongo Antony Oteng Ombwayo Pauline N. Muriithia
Mutakha Kangu Chairman Task Force on Devolved Government in Kenya
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DRAFT FINAL REPORT FOR TFDG EYES ONLY
SIGNATURE PAGE FOR TASK FORCE MEMBERS

Mutakha Kangu Chairperson ______________________________________
Lucy Muthoni Kambuni
Vice Chairperson
______________________________________
Edward A. Oyugi
Member
______________________________________
Emmanuel Lubembe
Member
______________________________________
Eric M. Aligula
Member
______________________________________
Fatma Ali Saman
Member
______________________________________
Gichira Kibara
Member
______________________________________
Hamisi Mboga -
Member
______________________________________
Harriet Naitore
Member
______________________________________
Jelani Habib
Member
______________________________________
Joash Dache
Member
______________________________________
John Nguri
Member
______________________________________
Joseph W. Irungu
Member
______________________________________
Julius Malombe
Member
______________________________________
Kasembeli W. Nasiuma
Member
______________________________________
Kennedy Nyaundi
Member
______________________________________
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INTERIM REPORT TFDG CONSULTATION DOCUMENT
Kenneth W. Akide
Member
______________________________________
Kibisu Kabatesi
Member
______________________________________
Marion Muriithi
Member
______________________________________
Nehemiah Ngeno
Member
______________________________________
Onesimus Kipchumba Murkomen
Member ______________________________________
Patrick Karanja
Member
______________________________________
Patrick O. Onyango
Member
______________________________________
Pauline Nyamweya
Member
______________________________________
Polycarp J.O. Ochilo
Member
______________________________________
Samuel G. Karicho
Member
______________________________________
Sylvester M. Osodo
Member
______________________________________
Winnie V. Mitullah
Member
______________________________________
Pauline N. Muriithia
Joint Secretary
______________________________________
Antony Oteng Ombwayo
Joint Secretary
______________________________________
Angeline Hongo
Joint Secretary
______________________________________
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ACKNOWLEDGEMENT
In carrying out its mandate as stipulated in Gazette Notice no 12876 of 2010, the taskforce members benefited from the generous contributions of many individuals and organizations. We would like in particular thank the Office of the President, Office of the Prime Minister, and the Hon Deputy Prime Minister and Minister for Local Government Hon Musalia Mudavadi for giving us the opportunity to serve this country in this crucial process of implementing the Constitution of Kenya, 2010. The Task Force assignment successfully progressed with the financial and moral support from many development partners and other non-government actors. We wish to warmly recognize the generous financial support of all donors who contributed to the basket fund. We are particularly indebted to UNDP for providing the initial funding, coordinating development partner support and making a deliberate effort to see to it that the Task Force was always facilitated. We also acknowledge the support of Friedrich Ebert Foundation and the media fraternity who supported mobilization efforts during stakeholder consultations. To the people of Kenya, localised in the various counties, we acknowledge with gratitude your positive responses during the county visits. We thank you for providing your views, without which, this Interim Report would be the lesser for it. There are many other people and organizations that provided support, encouragement, and ideas during the research, consultations and collection of information for this report. It may not be possible to thank them all by name, but their help and invaluable contribution is appreciated. This notwithstanding, the task force is grateful to all members of the public, Civil Society Organizations (CBOs), Private Sector practitioners, and other organized groups who have contributed invaluable insight by providing testimonies and attending the task force public hearings and meetings, and submitting written comments, memoranda, and/or recommendations. All these informed our report within the limits of the constitution. Last but not least, the Task Force would like to acknowledge the invaluable contributions of Steering Committee, Joint Secretaries, the Secretariat, Programme Officers, and the Research Assistants, including the Rapporteurs and Hansard Reporters.
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TABLE OF CONTENTS
LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED GOVERNMENT __________________________________________________________ iii SIGNATURE PAGE FOR TASK FORCE MEMBERS __________________________ iv ACKNOWLEDGEMENT __________________________________________________ vi LIST OF ACRONYMS ____________________________________________________ xiii LIST OF FIGURES ______________________________________________________ xvi LIST OF TABLES ________________________________________________________ xvii GLOSSARY OF TERMS _________________________________________________ xviii 1 TASK FORCE MANDATE, TERMS OF REFERENCE AND THEIR INTERPRETATION _______________________________________________________ 1
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 INTRODUCTION _______________________________________________ 1 MANDATE OF THE TASK FORCE _____________________________________ 1 THE POWERS _________________________________________________ 2 TERMS OF REFERENCE AND THEIR INTERPRETATION _______________________ 2 APPROACH TO AND SCOPE OF THE ASSIGNMENT___________________________ 2 CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT _____________________ 5 REPORT PURPOSE ______________________________________________ 5 ORGANIZATION OF THE REPORT _____________________________________ 6 THE NEXT STEPS ______________________________________________ 7
2 CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT ___________________________________________________________ 9

2.1 2.2 2.3 2.4 2.5 2.6 INTRODUCTION _______________________________________________ 9 THE CENTRALIZED COLONIAL STATE_________________________________ 10 THE POST-INDEPENDENCE QUASI-FEDERAL SYSTEM ______________________ 11 PERPETUATION OF THE CENTRALIZED STATE ___________________________ 13 THE PROBLEM OF CENTRALIZATION _________________________________ 14 THE PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT ________________ 16
Building Blocks for Cooperative and Competitive Counties __________________________ 17 Growing and Sustaining County Cooperative Competitiveness _______________________ 19 Paradigm Shift in County Public Service Delivery ________________________________ 19 Building and Maintaining Quality Places ______________________________________ 20 Managing Counties for Prosperity __________________________________________ 21 Effective Political Parties _________________________________________________ 23 Leadership, Ethics and Integrity and the Constitution of Kenya 2010 ___________________ 23 Unity in Diversity ______________________________________________________ 26 Skilled Human Resources ________________________________________________ 26 Sustainable and Equalising Funding _________________________________________ 26 Citizen Participation ____________________________________________________ 26
2.6.1 2.6.2 2.6.3 2.6.4 2.6.5
2.7
2.7.1 2.7.2 2.7.3 2.7.4 2.7.5 2.7.6
CONCLUSIONS _______________________________________________ 22
3
3.1 3.2
CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA ______ 27

CONCEPT OF A CONSTITUTION _____________________________________ 27 THE CONCEPT AND THEORY OF DEVOLUTION ___________________________ 27
Independent Commissions as Shared Institutions ________________________________ 28 Independent Offices as Shared Institutions ____________________________________ 30
3.2.1 3.2.2
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INTERIM REPORT TFDG CONSULTATION DOCUMENT 3.3 3.4

3.4.1 3.4.2
OPERATIONALIZATION OF SHARED INSTITUTIONS ________________________ 31 THE FORM OF DEVOLUTION ______________________________________ 31

The Principle of Distinctness ______________________________________________ 32 The Principle of Inter-dependence __________________________________________ 32
3.5 3.6 3.7

3.7.1 3.7.2 3.7.3 3.7.4 3.7.5 3.7.6
OBJECTS AND PRINCIPLES OF DEVOLUTION ____________________________ 34 ARCHITECTURE AND DESIGN OF DEVOLUTION IN KENYA ____________________ 34 THE VALUE FOUNDATIONS OF THE CONSTITUTION ________________________ 36
The Fundamental Values and Principles of Good Governance ________________________ 37 Sovereignty of the People ________________________________________________ 39 Service to the People ___________________________________________________ 39 Leadership and Integrity _________________________________________________ 40 Participation and Inclusiveness ____________________________________________ 42 The Important Role of Political Parties _______________________________________ 43
3.8
CONCLUSIONS _______________________________________________ 43
4
4.1 4.2
LEVELS AND UNITS OF DEVOLVED GOVERNANCE ___________________ 44

INTRODUCTION ______________________________________________ 44 LOCAL GOVERNANCE ___________________________________________ 44
Principles of Local Governance ____________________________________________ 44 Levels of Governance ___________________________________________________ 46
4.2.1 4.2.2
4.3 4.4
RURAL AREAS _______________________________________________ 47 CITIES AND URBAN AREAS ________________________________________ 47

Cities and Urban Areas in Development ______________________________________ 47 Context of Cities and Urban Areas in Kenya ____________________________________ 49 Capital City and County of Nairobi __________________________________________ 51 Conferring of City Status _________________________________________________ 52
4.4.1 4.4.2
4.5
4.5.1 4.5.2
CLASSIFICATION OF CITIES AND URBAN AREAS __________________________ 50
4.6
CHALLENGES FOR FORTY SEVEN COUNTIES ____________________________ 54

Overview ___________________________________________________________ 54 Structural Overlaps ____________________________________________________ 54 Capacity Building ______________________________________________________ 55 Cross County Planning and Development _____________________________________ 55 Economies of Scale ____________________________________________________ 57 Areas for Further Decentralisation __________________________________________ 58 Policy Options and Recommendations _______________________________________ 63
4.6.1 4.6.2 4.6.3 4.6.4 4.6.5
4.7
4.7.1 4.7.2
POLICY AND LEGAL GAPS ________________________________________ 58
4.8
CONCLUSIONS _______________________________________________ 65
Policy ______________________________________________________________ 65 Legislation __________________________________________________________ 66 Governance__________________________________________________________ 67 Restructuring ________________________________________________________ 68
4.8.1 4.8.2 4.8.3 4.8.4
5
5.1 5.2 5.3
STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE ____ 69

INTRODUCTION ______________________________________________ 69 PRINCIPLES OF GOVERNANCE _____________________________________ 69 LEGISLATIVE ARM OF COUNTY GOVERNMENTS __________________________ 70
Introduction _________________________________________________________ 70 Composition, Qualifications and Election of County Assembly Members ________________ 72 Qualifications for Election as a Member of a County Assembly _______________________ 72 Mandate and Functions of the County Assembly _________________________________ 78 Removal from Office ___________________________________________________ 80 Size and Population of a County Ward ________________________________________ 81 The Asymmetrical Transfer of Legislative Functions ______________________________ 83 County Assembly Legislation ______________________________________________ 83 Conflict of Laws _______________________________________________________ 84 Policy Issues and Recommendations on Legislation ______________________________ 84
5.3.1 5.3.2 5.3.3 5.3.4 5.3.5 5.3.6 5.3.7 5.3.8 5.3.9 5.3.10
5.4
EXECUTIVE ARM OF GOVERNMENT __________________________________ 86
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5.4.1 5.4.2 5.4.3 5.4.4 5.4.5 Composition and Structure of the County Executive ______________________________ 86 Election, Appointment and Qualifications of the County Executive ____________________ 89 Mandate and Functions of the County Executive _________________________________ 99 Removal from Office __________________________________________________ 103 Conclusions on the County Executive _______________________________________ 104
5.5
5.5.1 5.5.2
ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT _______________ 105

Historical Context ____________________________________________________ 105 Devolution of Government ______________________________________________ 106
5.6
5.6.1 5.6.2 5.6.3 5.6.4 5.6.5
RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION ___________________ 109

National Administration ________________________________________________ 109 Functions the Proposed National Administration _______________________________ 110 Proposed Structure of the National Administration ______________________________ 112 Security Management in the Counties _______________________________________ 113 Transition Issues _____________________________________________________ 113
5.7
CONCLUSIONS _______________________________________________115
6 FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY IN KENYA ___________________________________________________ 117
6.1 6.2 INTRODUCTION ______________________________________________ 117 PRINCIPLES OF FUNCTIONAL AND COMPETENCY ASSIGNMENT _______________ 118
General Principles for Functional Distribution _________________________________ 118 Principles and Criteria for Unbundling Functions and Competencies __________________ 124 Lessons from Theory and Practice _________________________________________ 125 Consequences of Ineffective Functional and Competency Assignment _________________ 126
6.2.1 6.2.2
6.3
6.3.1 6.3.2
FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE _______________ 125
6.4
FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA ___________________ 127

The Constitutional Provisions ____________________________________________ 127 Assignation to the Levels of Government in Kenya ______________________________ 130 The Overall Architecture: Modes, Roles and Structure ____________________________ 131 Unbundling of Functional Competencies _____________________________________ 132 Functional Distribution under the Constitution of Kenya 2010 ______________________ 134
6.4.1 6.4.2 6.4.3 6.4.4 6.4.5
6.5 6.6 6.7
COSTING OF ASSIGNED FUNCTIONS AND COMPETENCIES ___________________ 134 ORGANIZATIONAL OPTIONS FOR EFFECTIVE SERVICE DELIVERY ______________ 136 CONCLUSIONS ______________________________________________ 137
7 INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS ________________________________________________________ 140

7.1 7.2
7.2.1 7.2.2
INTRODUCTION _____________________________________________ 140 INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC SERVICE DELIVERY 141
Why Integrated Development Planning? _____________________________________ 141 Linking Integrated Development Planning and Effective County Governance ____________ 142
7.3
7.3.1 7.3.2
OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT PLANNING ___ 143

Constitutional Basis for Integrated County Development Planning in Kenya _____________ 143 Proposals for Integrated Development Planning in Kenya _________________________ 146
7.4
CONCLUSIONS ______________________________________________ 148
8
8.1 8.2 8.3
INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION ___ 150

INTRODUCTION _____________________________________________ 150 SETTING THE CONTEXT: A BRIEF OVERVIEW OF KENYAS ADMINISTRATIVE SYSTEM _ 150 RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS ___________ 152
Rationale for Intergovernmental Relations ___________________________________ Principle of Fidelity to the Nation __________________________________________ Principle of Unity in Diversity ____________________________________________ Principle of Cooperation ________________________________________________ Principle of Interdependence _____________________________________________ Principle of Oversight __________________________________________________ 152 152 152 152 152 152
8.3.1 8.3.2 8.3.3 8.3.4 8.3.5 8.3.6
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INTERIM REPORT TFDG CONSULTATION DOCUMENT 8.4 8.5 EMERGING KEY ISSUES ________________________________________ 153 MECHANISMS OF CO-ORDINATION AND CO-OPERATION ___________________ 154
National Government and County Government ________________________________ Views Expressed by Kenyans _____________________________________________ Recommendations ____________________________________________________ Inter-County Governmental Relations _______________________________________ Recommendations ____________________________________________________ Intra County Co-operation ______________________________________________ Views Expressed by Kenyans _____________________________________________ Recommendations ____________________________________________________ 154 154 155 157 158 158 159 159
8.5.1 8.5.2 8.5.3 8.5.4 8.5.5 8.5.6 8.5.7 8.5.8
8.6
CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES ______________________ 160

Concept of Cooperative Government ________________________________________ 160 Need for Joint Committees and Joint Authorities _______________________________ 160 The Role of Senate ____________________________________________________ 160 Intergovernmental Dispute Resolution ______________________________________ 161 Comparative Experiences of Dispute Resolution Mechanisms in Africa ________________ 162 Recommendations ____________________________________________________ 163
8.6.1 8.6.2 8.6.3
8.7
8.7.1 8.7.2 8.7.3
INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _______________ 161
8.8
INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT _______________ 163

Views Expressed by Kenyans _____________________________________________ 164 Recommendations ____________________________________________________ 164
8.8.1 8.8.2
8.9
CONCLUSIONS ______________________________________________ 165
9 CITIZEN PARTICIPATION AND PROTECTION OF MINORITIES AND MARGINALISED GROUPS _______________________________________________ 166
9.1 9.2 9.3 INTRODUCTION _____________________________________________ 166 CONCEPT OF INTEGRATED CITIZEN PARTICIPATION ______________________ 166 BASIC ELEMENTS OF CITIZEN PARTICIPATION __________________________ 168
Citizen Participation as a Right ___________________________________________ Public Participation as a Function of Transparency in Democratic Governance ___________ Public Participation as an Imperative of Influencing Decision-Making _________________ Access to Information and the Right to Effective Democratic Citizenship _______________ Citizen Participation and Meaningful Dialogue _________________________________ Citizen Participation as a Condition for Accountability ____________________________ Citizen Participation for Transparency ______________________________________ Citizen Participation as a Normative Basis of Equity _____________________________ 168 171 172 173 174 175 175 176
9.3.1 9.3.2 9.3.3 9.3.4 9.3.5 9.3.6 9.3.7 9.3.8
9.4 9.5
9.5.1 9.5.2 9.5.3 9.5.4 9.5.5
PROCESS AND MODALITIES OF PUBLIC PARTICIPATION ____________________ 178 PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS __ 179
Principles for Protecting and Inclusion of Marginalised Groups _____________________ 179 Definition of Terms ___________________________________________________ 181 Problems Faced by the Minorities and Marginalised Groups & Communities_____________ 186 Solutions Provided Under the New Constitution ________________________________ 190 Recommended Legal, Policy and Institutional Interventions ________________________ 193
9.6
CONCLUSIONS ______________________________________________ 197
10 PUBLIC COMMUNICATION AND CIVIC EDUCATION IN DEVOLVED GOVERNANCE _________________________________________________________ 199

10.1
10.1.1 10.1.2 10.1.3 10.1.4 10.1.5
COMMUNICATION AND DEVOLVED GOVERNANCE ______________________ 199

Communication, Information, Governance and Development _______________________ 200 The Media and the Implications of the New Constitution __________________________ 204 Key Issues and Recommendations _________________________________________ 206 Recommendations ____________________________________________________ 209 Outstanding Issues____________________________________________________ 211
10.2
10.2.1 10.2.2
CIVIC EDUCATION ON DEVOLVED GOVERNMENT _______________________ 211

Strategic Communication _______________________________________________ 212 Civic Education on Devolved Government ____________________________________ 212
10.3
CONCLUDING REMARKS ______________________________________ 219
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11
11.1
BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE _________ 221

INTRODUCTION ____________________________________________ 221
Public Service _______________________________________________________ 221 Human Resource Management Issues in the Public Service ________________________ 222 11.1.1 11.1.2
11.2
11.2.1 11.2.2 11.2.3
COMPARATIVE ANALYSIS ______________________________________ 223

Germany __________________________________________________________ 223 United Kingdom _____________________________________________________ 224 South Africa ________________________________________________________ 224
11.3
11.3.1 11.3.2 11.3.3 11.3.4
COUNTY PUBLIC SERVICE _____________________________________ 224

Staffing of County Governments ___________________________________________ 224 Norms and Standards __________________________________________________ 225 Promotion of Values and Principles in the County Public service _____________________ 226 County Public Service Board _____________________________________________ 227
11.4
TRANSITIONING FROM THE CURRENT PUBLIC SERVICE___________________ 227
11.4.1 Staff Audits in Ministries/Departments, Local Authorities and State Corporations _________ 227 11.4.2 Re-organization and Deployment of Staff ____________________________________ 228 11.4.3 Local Authorities Staff _________________________________________________ 228 11.4.4 Harmonisation of Terms and Conditions of Service ______________________________ 229 11.4.5 Principles of Staff Recruitment and Promotion _________________________________ 230 11.4.6 Reporting Relationships ________________________________________________ 230 11.4.7 Protection of Accrued Pensions and other Benefits ______________________________ 231 11.4.8 Institutional Facilities and Mechanisms for Training and Capacity Building of Staff in the County Public Service ______________________________________________________________ 231 11.4.9 Role of Government Training Institutions and Professional Associations in Capacity Building _ 232
11.5
CONCLUSIONS _____________________________________________ 232
12 COUNTY GOVERNMENT FINANCIAL RESOURCES AND THEIR MANAGEMENT _________________________________________________________ 234

12.1
12.1.1 12.1.2
INTRODUCTION ____________________________________________ 234

Fiscal Decentralization Conceptual Framework ________________________________ 234 Principles of Public Finance ______________________________________________ 235
12.2
12.2.1 12.2.2 12.2.3 12.2.4
REVENUE ________________________________________________ 236

Inter-Governmental transfers ____________________________________________ 236 The Principle of Funds Must Follow and Match Functions _________________________ 237 County Own Revenues _________________________________________________ 246 Grants and Donations __________________________________________________ 249
12.3
12.3.1 12.3.2 12.3.3
BORROWING ______________________________________________ 249

Internal and External Borrowing __________________________________________ 250 Loan Guarantees _____________________________________________________ 251 Institutional Framework for Coordination of Borrowing and Grants __________________ 251
12.4
12.4.1 12.4.2 12.4.3
PUBLIC DEBT MANAGEMENT IN COUNTIES __________________________ 253

Objectives of Public Debt Management ______________________________________ 254 Principles and Techniques for Public Debt Management __________________________ 254 Framework for County Public Debt Management _______________________________ 255
12.5
12.5.1 12.5.2
PLANNING AND BUDGETING ____________________________________ 255

County Planning and Budgeting Linkages ____________________________________ 255 Budget Process ______________________________________________________ 258
12.6
12.6.1 12.6.2 12.6.3 12.6.4 12.6.5 12.6.6 12.6.7
EXPENDITURE CONTROL ______________________________________ 261

Expenditure Controls Framework __________________________________________ 261 Budgetary Controls ___________________________________________________ 263 Procurement/ Supply Chain Management ____________________________________ 265 Role of Controller of Budget _____________________________________________ 267 Role of Accounting Officer _______________________________________________ 269 Oversight Role of the County Assembly ______________________________________ 271 County Internal Audit Function ___________________________________________ 273
12.7
12.7.1 12.7.2
FINANCIAL REPORTING AND AUDIT _______________________________ 279

County Financial Accounting and Reporting __________________________________ 279 Role of Auditor General ________________________________________________ 282
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12.8
12.8.1 12.8.2 12.8.3 12.8.4 12.8.5
FINANCING COUNTY INFRASTRUCTURE AND INVESTMENT _________________ 283

Role of Counties in Infrastructure Development and Delivery _______________________ 283 Infrastructure Gaps and Equitable Development in Counties _______________________ 284 Approaches for the Development and Financing of County Infrastructure _______________ 284 County Governments Bank and Loans Authority (CGBLA) _________________________ 286 Efficiency, Sufficiency and Optimization of County Infrastructure ____________________ 288
12.9
12.9.1 12.9.2
INSTITUTIONAL AND TRANSITIONAL ISSUES __________________________ 289

Institutions and Funding of Transitional Arrangements ___________________________ 289 Framework for the Audit and Re-Allocation of Existing Infrastructure Assets ____________ 289
12.10
12.10.1 12.10.2
CONCLUSIONS _____________________________________________ 290

Summary ________________________________________________________ 290 Conclusion _______________________________________________________ 292
13
13.1
THE TRANSITION ROAD MAP ______________________________________ 294

INTRODUCTION ____________________________________________ 294 ORGANIZING THE TRANSITION ROAD MAP __________________________ 295 TRANSITION AREAS _________________________________________ 296 PROPOSED ENABLING LEGISLATION _______________________________ 300 PUBLIC COMMUNICATIONS IN SUPPORT OF THE TRANSITION PROCESS_________ 300 CONCLUSIONS _____________________________________________ 301
13.2 13.3 13.4 13.5 13.6
ANNEXURES ___________________________________________________________ 302

ANNEX 1: COUNTY CONSULTATIONS QUESTIONS ____________________________ 302 ANNEX 2: SCHEDULE OF COUNTY VISITS OF 20TH FEBRUARY TO 16TH MARCH 2011 ______ 304 ANNEX 3: INTERNATIONAL AND OTHER TREATIES AND CONVENTIONS RELEVANT TO DEVOLUTION ___________________________________________________ 309 ANNEX 4: ANALYSIS OF DISTRIBUTION OF FUNCTIONS UNDER SCHEDULE 4 OF THE CONSTITUTION OF KENYA ___________________________________________ 310 ANNEX 5: REVIEW OF METHODS FOR COSTING DELIVERY OF DEVOLVED SERVICES ______ 312 ANNEX 6: PROVISIONAL SIMULATIONS OF HORIZONTAL REVENUE SHARING SCENARIOS __ 314 ANNEX 7: PROVISIONAL COUNTY PROFILES _______________________________ 316
BIBLIOGRAPHY ________________________________________________________ 318 ENDNOTES_____________________________________________________________ 319
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LIST OF ACRONYMS
ACHPR AIA AIE BOO BOOT BOT CBD CCN CDF CEDA CIC CILOR CIPFA COAG CoE CoK CP CRA CSO EU GIS GJLOS IASB ICPAK ICT IEBC IFMIS IFRS IGR African Commission on Human and Peoples Rights Appropriations in Aid Authority to incur Expenditure Build-Own-Operate Build-own-operate-transfer Build Operate Transfer Central Business District City Council of Nairobi Constituency Development Fund Convention on the Elimination of All Forms of Discrimination Constitution Implementation Commission Contribution in lieu of rates Chartered Institute of Public Finance and Accountants the Council of Australian Governments Committee of Experts Constitution of Kenya Community Participation Commission on Revenue Allocation Civil Society Organisation European Union Geographic Information System Governance, Justice, Laws and Order Sector International Accounting Standards Board the Institute of Certified Public Accountants of Kenya Information and Communication Technology Independent Electoral and Boundaries Commission Integrated Financial Management Information System International Financial Reporting Standards Intergovernmental Relations Page | xiii
IIEC ILO IPSAS JICA KACC KEPSA KRA LA/LAs LASDAP LATF LPAs LSK LSOs MoSPS MPs MTEF NARC NGOs NTA PA PCC PCM PETS PFMR PPOA PPP PRSP PSC RMLF RPRLGSP
Interim Independent Electoral Commission International Labour Organisation International Public Sector Accounting Standards Japan International Cooperation Agency Kenya Anti-Corruption Commission Kenya Private Sector Alliance Kenya Revenue Authority Local Authorities Local Authority Service Delivery Action Plan Local Authority Transfer Fund Local Purchase Orders Law Society of Kenya Local Service Order Ministry of State for Public Service Members of Parliament Medium Term Expenditure Framework National Rainbow Coalition Non-governmental Organisations National Taxpayers Association Provincial Administration Presidents Coordinating Council Project Cycle Management Public Expenditure Tracking Surveys Public Financial Management Reform Programme Public Procurement Oversight Authority Public-private partnerships Poverty Reduction Strategy Papers Public Service Commission Road Maintenance Levy Fund Rural Poverty Reduction and Local Government Support Programme Page | xiv
SALGA SMS SWAP TFDG TJRC TORs UN UN-Habitat
South Africa Local Government Association Short Message Service Sector Wide Approaches Task Force on Devolved Government Truth Justice and Reconciliation Commission Terms of Reference United Nations United Nations Agency for Human Settlements
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LIST OF FIGURES
Figure 1.1: Organization of the Interim Report on Implementation of Devolved Government in Kenya ________________________________________________ 7 Figure 2.1: Kenyas Projected Population Growth Pattern ______________________ 17 Figure 2.2: Building Blocks for Cooperative Competitive Counties in Kenya __________ 18 Figure 2.3: Challenge of Kenyas Population Dynamics _______________________ 21 Figure 2.4: Critical Success Factors for Devolution in Kenya ____________________ 22 Figure 5.1: Structure of County Governments ______________________________ 71 Figure 5.2: Elections and Electoral Processes at the County Level _________________ 76 Figure 5.3: Proposed Levels of the National Administration ____________________111 Figure 6.1: Functional Assignment Architecture in the Constitution of Kenya, 2010 ___ 131 Figure 6.2: Options for County Public Service Partnerships in Kenya _____________ 135 Figure 6.3: Implementation of the Framework Policy Paper on Functional and Competency Assignment in Kenya _____________________________________ 137 Figure 7.1: Components of Integrated Development Planning for Kenya ___________ 142 Figure 7.2: Proposal for Integrating Development Planning Frameworks in Kenya ____ 146 Figure 7.3: Operationalising Integrated Development Planning in Kenya __________ 147 Figure 12.1: Figure 12.2: Figure 12.3: Figure 12.4: Figure 12.5: Figure 12.6: Figure 13.1: Fiscal Decentralisation Conceptual Framework __________________ 235 Institutional Framework for Coordination of Borrowing and Donor Grants 253 Planning & Budgeting Framework ___________________________ 256 SWAP MTEF Framework _________________________________ 260 Financial Control Systems in County Governments ________________ 262 County Infrastructure Financing and Development ________________ 286 Conceptualizing the Transition Process to Full Establishment of County Governments _________________________________________ 295
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LIST OF TABLES
Table 1.1: Table 1.2: Table 5.1: Table 6.1: Table 6.2: Table 6.3: Table 6.4: Table 7.1: Table 12.1: Table 12.2: Table 13.1: Table 13.2: Table 13.3: Summary of the Thematic Areas ________________________________ 3 Synopsis of Key Work Activities and Deliverables from the Terms of Reference 4 Advantages and Disadvantages of the Simple and Absolute Majority Electoral Systems _______________________________________________ 97 Dealing with lack of clarity in functional assignment between different levels of government ____________________________________________ 126 Constitution of Kenya, 2010 Provisions relevant to Functional Assignment and Public Service Delivery ____________________________________ 127 Disaggregating the Competencies for Public Service Delivery ___________ 133 Suggested Definition of Competencies __________________________ 133 Key Constitutional Provisions relevant to Integrated County Development Planning in Kenya _______________________________________ 143 SWAP Process _________________________________________ 259 County Infrastructure facilities that can be commercialized or developed through public-private partnerships __________________________ 288 Transition in Phase 1 ____________________________________ 297 Transition in Phase 2 ____________________________________ 298 Proposed Legislation for Implementing Devolved Government in Kenya _ 300
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GLOSSARY OF TERMS
TO BE INSERTED IN THE FINAL REPORT
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1
1.1
TASK FORCE MANDATE, TERMS OF REFERENCE AND THEIR INTERPRETATION

INTRODUCTION
Pursuant to the Constitution of Kenya, 2010 (CoK, 2010) and a decision of the Fourth Cabinet Meeting1 of 17th August 2010, the Deputy Prime Minister and Minister for Local Government established the Task Force on Devolved Government (TFDG) on the 22nd October 2010 through Gazette Notice 12876 dated 25th October 2010. Additional members of the Task Force and Steering Committee were gazetted on 3 rd December 2010. The purpose of the task force was to help think through the implementation of the devolution process and advise the government on policy and legal frameworks of devolving power, resources and responsibilities to the people of Kenya for effective local development. The Task Force was officially launched on 8th November 2010 by the Deputy Prime Minister and Minister for Local Government, Hon. Musalia Mudavadi.
1.2
MANDATE OF THE TASK FORCE
The overall mandate of the Task Force is to propose implementation mechanisms for the devolved system of government as envisaged in the Constitution of Kenya, 2010. The specific terms of reference (ToRs) of the Task Force as set out in the Gazette Notice are:
a.
Prepare a detailed work plan indicating the detailed milestones and timelines and present to the same to the Steering Committee.
b. Undertake studies and make proposals for effective implementation of devolution structures consistent with the provisions of the Constitution. c.
Commission studies or researches as are necessary for the effective execution of its mandate.
d. With reference to specific provisions of the Constitution, collect and collate public views on how implementation of the devolved government should be structured. e. f. g.
Undertake stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. Recommend policy frameworks for implementation of devolved government as provided for in the Constitution. Make proposals on appropriate legislation to anchor and implement the devolved government; and
h. Make monthly reports or as may be required by the Steering Committee.
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1.3
THE POWERS
The powers of the Task Force were to: a. Hold meetings, public forums or consultations as it shall deem necessary; b. Hold meetings in any part of the country and shall ensure views from all the counties are received and considered; c. In consultation with the Steering Committee, co-opt local and international experts in particular areas of need as may be necessary;
d. Commission studies or researches to institutions or individuals with requisite expertise, as required to undertake its tasks; e. Co-ordinate and consult with relevant ministries, departments and agencies in order to access all relevant information, documentation and studies as are relevant to enable the Task Force execute its mandate; and Nominate acting chairperson from amongst the members in the absence of the Chairperson.
f.
1.4
TERMS OF REFERENCE AND THEIR INTERPRETATION
The TFDG was expected to submit to the Steering Committee Reports that shall, inter alia, contain recommendations for: a. operationalising the functions of each County, consistent with the Fourth Schedule of the Constitution; b. restructuring the provincial administration to accord with and respect the system of devolved government established under the Constitution; c. the specifics of the financial management system that the County Governments shall perform; to prepare drafts of such new legislation including legislation on urban areas and cities under Article 184 of the Constitution and review of the Local Government Act (Cap. 265) or the Local Government Bill, 2009 as may be necessary; assistance to County governments in building their capacity to govern effectively and provide the services for which they are responsible; and
d. the taxes and charges that each County may impose; e.
f.
g. a programme for civic education on the proposed legislation.
1.5
APPROACH TO AND SCOPE OF THE ASSIGNMENT
The Task Force acted as the technical arm of the Steering Committee and was made up of thirty-one (31) persons drawn from various stakeholders including, but not limited to, ministries, stakeholder representatives and experts recommended to the Deputy Prime Minister and Minister of Local Government by the Steering Committee. The work of the Task Force was guided by the terms of reference and the following general methodology was adopted:
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1.
2.
3. 4.
5.
6.
Weekly Meetings: the TFDG held weekly meetings at which both technical and administrative issues were dealt with. In these meetings, the focus was on developing themes for carrying out the work and also consultation on the same. Working Sessions: the various thematic groups, including individual members of these groups, held sessions as groups or jointly on various issues under their purview, with which they were tasked. Working Retreats: working retreats were used to consolidate issues and prepare the various outputs required of the TFDG. Consultation Meetings: the TFDG held working consultations with various government ministries, development partners and non-state actor groups to develop understanding of the issues. County Consultations: as part of its mandate, county consultations were held in all the forty-seven (47) counties based on five thematic areas developed. These were implemented over a period of three weeks. Workshops and Symposia: workshops and symposia were held with key stakeholders to solidify themes and recommendations identified and made on matters relating to the operationalization of devolved government in Kenya
The TFDG held preparatory meetings leading to a working retreat on 5-8 December 2010 at the Great Rift Valley Lodge, Naivasha, Kenya. A consequence of this retreat was the identification of eight sub-themes, with task force members divided into four groups as shown in Table 1.1. Based on these, each thematic group was tasked to develop position papers. Subsequent to this, a list of consultation questions was developed for purposes of soliciting the views of members of the public (see Annex 1). To facilitate the work of the task force a team of programme officers and research assistants were competitively recruited and attached to the thematic groups as identified. Table 1.1: Summary of the Thematic Areas
# 1 2 THEMATIC GROUP NAME Financial resources and management and transitional issues Cooperative and inter-governmental relations and levels of governance, cities and urban areas Citizen participation, protection of marginalized groups and communities, political governance and leadership and communication and civic education Public administration, human resource, capacity building and functional distribution and service delivery. AREAS OF FOCUS Financial resources and management Transitional issues Cooperative and intergovernmental relations levels of governance Cities and urban areas Public participation and protection marginalized groups and communities Political governance and leadership of
Public Administration, human resources and capacity building Functional distribution and service delivery Restructuring of the Provincial Administration
Between 27 March and 8 April 2011 a retreat was held at the Leisure Lodge, Ukunda to prepare the Interim Report of the Task Force, which was subsequently adopted on
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Monday 18th April 2011 before it was submitted to the appointing authority through the Chairman of the National Steering Committee. To guide the county consultations, the TFDG deliberated and agreed on the following areas of focus, namely: 1. 2. 3. 4. 5. Cooperative Government, Inter-Governmental Relations and Levels of Governance Functions of and Service Delivery by County Governments Financial Resources and Management in County Governments Political Governance, Leadership, Accountability and Integrity in County Governments Citizen Participation and Oversight, Protection of Minorities and Marginalized Groups and Communication and Civic Education.
For each of these areas, a set of questions was developed and advertised in the newspapers on diverse dates, leading to the county visits (see Annex 1 for details). The work packages column outlines the specific activities which the Task Force on Devolved Government undertook in order to realize the objectives of the study (see introduction under each of the parts). These outputs were realized through consultations with Stakeholders, research and studies on devolved governments, consultations with relevant ministries, departments and agencies and Benchmarking missions to other countries/regions. It is expected that additional experts will be required during the drafting stage of policy and legal documents. Table 1.2 provides a synoptic view of key deliverables with a link to work packages and tasks. Table 1.2: Synopsis of Key Work Activities and Deliverables from the Terms of Reference
Work Package (WP) No Work Package 1 Work Package (WP) Description Prepare a detailed work plan indicating the detailed milestones and timelines and present to the same to the Steering Committee. Undertake studies and make proposals for effective implementation of devolution structures consistent with the provisions of the Constitution. Commission studies or researches as are necessary for the effective execution of its mandate. With reference to specific provisions of the Constitution, collect and collate public views on how implementation of the devolved government should be structured. Undertake stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. Recommend policy frameworks for implementation of devolved government as provided for in the Constitution. Make proposals on appropriate legislation to anchor and implement the devolved government; and Make monthly reports or as may be required by the Steering Committee. Key deliverables Detailed Work Plan
Work Package 2
Internal and External Study Reports Minutes of Meetings Internal and External Study Reports Consultation Concept Note County Consultation Reports County Visits International Proceedings
Work Package 3 Work Package 4
Work Package 5
Symposium
Work Package 6 Work Package 7
Drafting Instructions Draft Bills Monthly Reports
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The TFDG continuously engaged with the Steering Committee on a monthly basis or as may be required. In consultation with the Steering Committee, the TFDG co-opted and/or engaged various local and international experts on specified areas. Stakeholder consultations took various forms, including town hall meetings, focus group discussions and meetings with specific experts such as those in the fields of urban planning, finance, law and governance. Members of Parliament and key professional associations were also consulted. Ministries, Departments and Agencies were consulted to assess their understanding of the new roles of the national government; the devolution of functions to counties, including the development of the required standards for service delivery; and, the alternative scenarios for sequencing the devolution of functions. More importantly they were consulted as a basis for facilitating appropriate devolution of functions to the county government.
1.6
CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT
In implementing this assignment the TFDG experienced a number of challenges. These included the time constraint of having to implement a comprehensive assignment over a period of nine months. The start-up delays, arising out of the need to quickly affect a fund raising strategy for the various activities, made this challenge more onerous. One of the key mandates of the TFDG was to collect views, on operationalization of devolved government, from citizens. The experience from the field clearly showed that civic education on the provisions and implications of the Constitution of Kenya, 2010 was wanting. To overcome this challenge, the County Consultation Teams included within their programme a short rendition of the provisions of the CoK, 2010 in respect of devolved government.
1.7
REPORT PURPOSE
The purpose of this Interim Report of the Task Force on Devolved Government (ITFR) is to provide the initial feedback to the Deputy Prime Minister and Minister for Local Government on the proposed measures to operationalise Devolved Governments as envisaged under the Constitution of Kenya. In addition, the ITFR will be applied as the main consultation document at the planned International Symposium on Devolved Government to be held in early June 2011 at the Kenyatta International Conference Centre, Nairobi, Kenya. As part of the consensus building efforts, the ITFR will be used to consult with the citizens of the Republic of Kenya, individual and organized groups, in a targeted manner on the proposals. The findings received will be used to refine recommendations and prepare the final report, including the draft legislation to be submitted to the appointing authority for onward transmission to the formal organs of implementing the Constitution of Kenya, 2010.
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1.8
ORGANIZATION OF THE REPORT
This Interim Report of the Task Force on Devolved Government (ITFR) is organized into fourteen, closely related and interrelated chapters. The chapters are organized around specific themes, which are key building blocks for effecting the operationalising effective developmental devolved government in Kenya. Chapters Two and Three lay the basis for an identification of the reasons why Kenyans adopted a new constitutional framework founded upon a devolved framework. They also establish, on the basis of the constitution, the basis upon which this new devolved framework is conceptualized and elaborated in the subsequent sections. The two chapters elaborate on shared institutions between the national and county governments. It makes the case as to why these institutions should be deemed to be shared and therefore how they should be constituted and managed and/or the mechanisms of their decision making processes. Chapter Four discusses the levels and units of governance within the forty-seven (47) devolved units. They found the place of urban areas within county governments. Chapter Five discusses the structures and institutions of governance established for governance of the counties, including an elaboration of the legislative and administrative frameworks. Chapter Six discusses the assignment of functions to the various levels of governance and their implications for public service delivery. It proposes the framework for effective and efficient functional and competency assignment. Chapter Seven makes a case for integrated development planning in the county governments and the linkages to national level planning. It identifies the instruments and mechanisms that need to be put in place to achieve this critical building block for devolved government. Chapter Eight dwells on the intergovernmental relations and dispute resolution framework so critical for effective performance of the devolved entities. Chapter Nine discusses, emphasizes and elaborates on the framework effective citizen participation in the processes and institutions of devolved government. It makes a linkage between citizen participation as a mechanism of including citizens in county governance processes as well as being an instrument for the protection of minorities and marginalised groups. Chapter Ten brings to the fore the importance of public communication and civic education for enhancing the implementation of devolved government. Chapter Eleven, on the basis of the previous chapters, discusses the imperatives of building and effective county public service, including an elaboration of measures to deal with transition from current structures as well as incentivizing opportunities in the nascent county public service. Chapter Twelve focuses on county financial resources and their management structures and mechanisms, responsive to the status of counties and the imperatives of the Constitution of Kenya. Chapter Thirteen summarizes and integrates the conclusions and recommendations from the various chapters, including a rationalization and integration of the various policies, legal, regulatory and Page | 6
administrative proposals made. Chapter Fourteen then ties all these up by proposing the transition mechanisms as the new devolved units are founded and operationalised. Figure 1.1: Organization of the Interim Report on Implementation of Devolved Government in Kenya
Figure 1.1 illustrates the structure of the report as described in the previous sections.
1.9
THE NEXT STEPS
This Interim Report (ITFR) of the Task Force on Devolved Government is a document developed out of extensive consultations and harnessing of citizens views. The next phase will involve utilisation of this ITFR as a consultation document. In this regard, the activities subsequent to its submission will be a continued effort to strengthen realisation of Mandate (e) of the TFDG, namely that of: undertake stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. To achieve this, the TFDG will implement the following activities, using the ITFR as the main consultation document, namely: targeted consultations with the National Assembly and its Departmental Oversight Committees;
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targeted consultations with Permanent Secretaries; engagement with the National Steering Committee targeted consultations with Ministries, Departments and Agencies on the proposals made within the report; targeted consultations with Trade Unions and workers representatives; targeted consultations with Association of Local Government Authorities of Kenya (ALGAK) members; targeted sectoral consultations with organised groups and key informants from the private sector, non-state actor sector, and faith based groups; and hold regional validation meetings; and implement an International Symposium on Devolved Government in Kenya;
These engagements will be applied to firm up and further contextualise the proposals made within the ITFR in a manner that builds consensus amongst all the key constituencies relevant to the proposals.
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2
2.1
CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT

INTRODUCTION
Kenya is emerging from a state of poor governance demonstrated by widespread corruption, ethnic conflicts, insecurity, political uncertainty; and poverty among others. Poor governance has resulted in, among other negative outcomes, the alienation of large portions of the society from the mainstream economy; the squandering of public resources leading to low levels of development and massive poverty, ethic animosity due to perceptions of historical BOX 2.1: COUNTY VISIT SUBMISSIONS ON injustices; and cut-throat THE HISTORICAL PERSPECTIVE political competition and intolerance2. Box 2.1 Struggle for a constitution that addresses equity and equality for all summarises some of the Poor services, insecurity, poverty, discrimination perspective of citizens about in appointments to key state jobs this history. Country divided based on inequalities in social, The post-election crisis was largely due to weaknesses in key institutions of governance including the constitution, the judiciary, the police, the executive, the electoral system, and parliament. The weaknesses of these institutions can be traced back to constitutional and legal amendments made during the first three decades of independence in order to centralize power in the executive and minimize checks on executive power by other institutions. The changes resulted in not only centralisation of power but also monopolisation of power as opposition political parties, were initially frustrated and eventually outlawed. This ultimately resulted in state capture by small elite that wielded political power3. The political elite used the state to accumulate wealth at the expense of national development. The monopolisation of power also led to stifling of democratic development as the governance of the country drifted from constitutional rule to personal rule which distorted national goals set at independence of fighting poverty disease and ignorance. The struggle for constitutional reforms has its roots in the desire to correct the deficiencies in the governance framework of the country. A central objective of the
economic, political development Discriminatory policies have contributed to underdevelopment of the northern Kenya subregion Skewed relationships between the people and their leaders
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struggle has been the restoration of power to local communities to manage their affairs particularly in matters of local development. The Constitution of Kenya, 2010 has fundamentally altered this defective governance framework of the country through various far reaching reforms. The most critical of these reforms are: the introduction of a new normative framework/value systemachieved through the preamble, Article 10 and chapter six of the constitution; devolution of power through the creation of two levels of government (chapter eleven);constraining of executive power through the introduction of various checks on the powers of executive, particularly the president (approvals for key appointments and consultation before making key appointments, creation of various independent commissions to safe-guard democracy and constitutionalism) and the introduction of a modern expansive bill of rights. Of these far reaching reforms devolution is likely to have the most profound impact on governance. This section attempts to contextualise devolution by outlining the origins and challenges created by the centralization of power and exploring the opportunities created by the new constitutional dispensation.
2.2
THE CENTRALIZED COLONIAL STATE
The colonial government which was primarily established for the purposes of exploitation and plunder established highly centralised, brutal and racist state machinery for facilitating its colonial functions. The system did not allow for the representation of Africans, who were the majority, in the Legislative Council, an arm of government which was responsible for the development of legislation, by elected members. Discriminatory development in Kenya owes its origin to this colonial history. For most of the colonial period, Africans were represented by non-Africans in the Legislative Council. The first African to the Legislative Council was only nominated in 1944. The exclusion of Africans from the Legislative Council was on the basis that they would not be able to articulate their issues and also did not understand their best interests4. Power was centralized around the governor who in turn was answerable to the imperial government. There was no separation of powers as the executive exercised immense power over both the legislature and the judiciary5. Administrator often acted as magistrates. The executive council which primarily advised the governor on the administration had little power. For most of the colonial period, the Governor was the president of both the executive and the legislative council. He was supported by a powerful administrative system-the provincial administration. The Governor was constrained by the state secretary who had to authorize most of his policy and legislative proposals on behalf of the colonial office. Kenya was almost wholly ruled from the centre and from outside, and the people had almost no say in the decisions that affected and shaped their lives.
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The economy of the colonial state was also organized and managed along racial lines and geared towards exploiting the Africans for the benefit of the whites. Through legislation, including the crown lands ordinances (1902 and 1915) Africans were deprived of most of the productive land which was allocated to the white settlers. Africans were restricted to occupying land reserved for them-the reserves. They were also forced to provide labour for settler agriculture. Africans were encouraged and coerced through taxes and legislation to provide labour and also to live on settlers farms as squatters or share croppers. This created the problem of squatters that persists to this day. It also dislocated various communities from their ancestral land though migrations in search of labour. Various policies and legislation were developed to give whites economic advantage and undermine the non white economy. For example, non-whites were not allowed to grow certain crops including coffee. Marketing of produce was also highly controlled by the state. Thus through policy and legislative measures the state determined the economic developments of the various areas occupied by the whites and Africans respectively. Over time this created economic disparities that have persisted to this day. For about seventy years, the colonial government and its officials abused human rights with impunity engaging in forced labour; communal punishments; extrajudicial killings (of those who resisted colonial rule); detention without trial; rape, war crimes and the grabbing of African land for white settlement among other violations. The struggle for independence was informed by the need to address these wrongs.
2.3
THE POST-INDEPENDENCE QUASI-FEDERAL SYSTEM
At independence Kenya adopted a fairly progressive liberal constitution whose primary features were: an extensive bill of rights; a bi-cameral parliament; devolved government; separation of powers between the arms of government; judicial independence; and a multi-party political system6. One of the key features of the independence constitution was the semi-federal system of government. The constitution created regions (Majimbo) with extensive powers on the delivery of services and also substantial political power. The powers of the regions were protected by various mechanisms including entrenched constitutional provisions, a senate and exclusive assignment of functions and sources of funding. The quasi-federal system was achieved as a compromise between the centralist KANU and the federalist KADU. The compromise was preceded by protracted negotiations between the two parties that primarily clustered ethnic communities into big and small tribes. The parties embodied the hopes, aspirations and fears of the respective ethnic communities. The fears of the communities were primarily about ethnic domination of the small tribes by the big tribes and dispossession of their ancestral land on the one hand and ethnic exclusion of the big tribes from certain
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areas/balkanization of the country into ethnic enclaves on the other. To address these fears the constitutional compromise comprised of guarantees of regional autonomy and a bill of rights that protected property and the right of the individual to reside and work anywhere in the republic. The bill of rights was also influenced by the need to secure the future of the British settlers that would remain in the ex-colony after independence. The 1963 constitution divided the country into the Nairobi area and seven other regions- Coast, Eastern, Central, Rift Valley, Nyanza, Western and North Eastern. The regions were constitutionally empowered to make laws through an elected regional assembly and they were administered through committees of the regional assembly supported by a public service. The regional assemblies had legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, community development, housing, health services. There was also a system of local government to facilitate popular participation in governance. In addition the country had a well-developed administrative structure in the form of provincial administration The design of the independence constitution was informed by the experiences of Kenyans during the colonial period and the desire to deconstruct the colonial state that had systematically discriminated against non-whites; divided society along racial and ethnic lines; impoverished large sections of the population; and denied the people, particularly the Africans, a chance to be responsible for their affairs. Regional autonomy sought to empower the local communities to be responsible for the local governance. This would address the fears of ethnic dominance which had been expressed by the numerically small communities by removing substantial power and resources from the centre to the regions. It has been observed that at independence African countries adopted constitutions that created constitutionalist states whose dominant mode of domination was to be law. They say7: the system was to be characterized by impersonal authority defined and limited by the law; there was to be a clear separation of the private and public aspects of the lives of the leaders in government. The law was to be the basis of state power, to be exercised by a neutral bureaucracy recruited on the grounds of qualifications and experience; public office was to be a trust, not personal benefice; the bureaucracy was to be purposive, pursuing national goals; it was to be accountable for the manner in which it exercised its powers. An independent judiciary was expected to supervise the system. Unfortunately the provisions of the constitution were never fully operationalised. The institutions it created were not allowed to thrive and consolidate. Within one year of independence the process of dismantling the quasi-federal system commenced and
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the re-centralization of power was pursued by the ruling party KANU with zeal for the next thirty years resulting in a highly centralized and personalized rule until the wave of democratic reforms in the 1990s.
2.4
PERPETUATION OF THE CENTRALIZED STATE
The dream of a constitutionalist state was never realized in Kenya. The independent constitution was amended to remove virtually all the checks on executive power thereby putting to rest the notion of constitutionalism- limited government. Executive power however continued to be legitimized ostensibly through the constitution. The executive was very conscious of the need to trace back the exercise of its authority to the constitution despite the fact that the values of the constitution were not in reality having any impact on the exercise of executive power. Ogendo describes this paradox of states in the third world that continue to have the faade of constitutional democracy-all the institutions, processes and procedures but with no practice of the values of constitutional democracy - as having constitutions without constitutionalism8. Between 1963 and 1990 there were more than 30 constitutional amendments primarily geared towards the monopolization of power by the ruling party and the centralization of power around the executive (particularly the President). During this period, political competition was muzzled and civil society withered as it was increasingly intimidated, co-opted or banned from carrying out certain activities by the state. Over time the state occupied the entire public sphere crowding out both political actors and the civil society9. Apart from political and social control, the state also restated the discriminatory policies of colonial government by favouring certain sectors of the economy while undermining others through policy and legislation. In keeping with dominant economic model of the time, of the developmental state, the state situated itself as the main agent of development. This model advocated for comprehensive centralized planning. The policy was expressed in the national economic blueprint-Sessional Paper No.10 of 1965. It advocated for the focusing of development and investment on the high potential areas on the understanding that the economy would experience rapid growth due to the higher returns on investment in those areas. The policy failed to address the effects of colonial bias in the zoning of areas as high, medium of low potential. The zoning was primarily based on the needs of the settler economy which were anchored on the British needs at the time10. Thus though well meaning, the policy on centralized planning reinforced the marginalization of the areas that had suffered neglect during the colonial period. There was no express recognition of the need to correct the imbalances created by the discriminatory practices of the colonial government. Although the economy recorded impressive growth of about 7 per cent
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in the first decade of independence the benefits of the growth were not equitably distributed. It was biased in favour of high potential areas. The independence government also adopted the policy of Africanisation of key commercial enterprises in order to give Africans the commanding heights of the economy. This policy was founded on the understanding that political independence without economic power was meaningless. It sought to give Africans a foothold in the national economy which they had been denied by years of discriminative colonial policies and legislation. This well-intended policy was unfortunately subverted by political biases that existed at the time. The political elite ensured that the Africanised businesses went to their friends, colleagues or political supporters. The execution of this policy had the unintended effect of creating an economic elite and further exacerbating the economic difference between the favoured areas as the elite predominantly were from the high potential areas11. The desire of the ruling party and president to centralize and monopolise power was primarily driven by the need to exercise unlimited control over state resources in order to dispense patronage to political supporters (both individuals and ethnic communities).The monopolization of political power by the ruling party and the removal of limits on the exercise of executive power inevitably led to massive abuse of power.
2.5
THE PROBLEM OF CENTRALIZATION
The main problem of centralization of power in Kenya is that it led to the capture of the state by a few political elites. These elites were able to control both political and economic power in the entire country. The concept of republican government as an instrument in the service of the welfare of the people disappeared as government ceased to serve the people and became the property of a few. People sought to be elected or appointed to public offices, not to serve the people but to amass wealth at a personal level. Election or appointment to certain public offices became the easiest way to amass wealth and become rich. The notion of servant leadership disappeared as personal aggrandizement took centre stage. Corruption, mismanagement and plunder of public resources as well as political patronage became the order of the day. The countrys economy almost collapsed reducing the lives of the ordinary people to survival for the fittest. Allocation of resources and development opportunities to individuals and different parts of the country was then done on the basis of political patronage instead of objective criteria and the most important person in this process became the president. This excluded many people from government services creating a feeling of marginalization in many parts of the country. A strong feeling of exclusion led to the perception that one had to have one of their own tribesperson in a key political public office for him to access government services and opportunities. Because of this,
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competition for political office became intense. Indeed, the presidency became ultimate price. Centralised planning and the concentration of power at the national level of governance have been identified as one of the key obstacles to both development and democratization. Centralisation of power and economic planning and administration denies communities the opportunity to shape or influence their destiny in the matters of both development and democratization. Centralised organizational structure exhibits a number of the following weaknesses among others12: The central government officials responsible for planning are far removed from the peculiar circumstances of the various regions or localities of the country. They are therefore often ill-equipped to design optimal solutions to the development problems of these areas. Due to the lack of an adequate appreciation of the critical factors that influence development, central planners tend to develop generalized and unrealistic plans that fail to sufficiently address the developmental needs of the local community. By centralizing planning, there is often need for constant communication between the centre and its implementation officers on the ground. This back and forth communication in which field officers must constantly refer matters to the centre for decision making creates serious inefficiency in the system thus undermining development. Centralisation can no longer be justified by the earlier post-independence rationale that there are insufficient officers with the necessary qualifications to allow for the decentralization of functions. Nor the assumption that field officers are less qualified than the officers in the headquarters. Today there are enough qualified officers in the public service to effectively decentralize most functions. Continued centralization of decision making demoralizes field officers Locating decision- making of planning in the centre while implementation takes place in the field undermines co-ordination as the various technical departments operate independently and also refer matters to the centre independently without adequate consultation among each other. Horizontal co-operation in the field is thus undermined by the need to defer to a faraway superior in decision- making. Centralized administration undermines accountability as the field officers can easily shift the blame for their defective implementation or misuse of resources to their superiors at the centre. The identities of the responsible officers at the centre are normally vague. Decentralisation overcomes these challenges by
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directly connecting the state actions at the local level with officers to be held accountable. Centralization excludes the citizen from decision-making in planning and implementation as well as the field officers. Centralised systems presuppose that the citizen has no ability to effectively contribute to developmental matters. It ignores the fact that the citizen is more aware of their needs, is more interested to support the development programmes in their area and that opportunities for popular participation are necessary in order to develop democratic culture. Centralisation denies the local population a genuine platform for participation as the public officers at the centre are far removed from the citizens and not bound by the views or suggestions made to field officers13.
2.6
THE PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT
Kenya is in urgent need for a more intense shift towards a focus on development. No one is more aware of this need than the citizens as was discerned from the county visit submissions (see Box 2.1). They made it clear that the mission for the counties would and should be that of achieving positive development outcomes for the citizens. Some of these outcomes included job creation, harnessing local potential, integrating the counties with the nation, amongst others. The counties in the constitution will have to be primed to focus on development, hence the concept of developmental devolved government. This BOX 2.1: COUNTY VISIT SUBMISSIONS ON EXPECTATIONS OF DEVOLVED GOVERNMENT developmental devolved government must yield Devolved government should lead to national renewal functional development Nation built on equity and equality for all Kenyans for the estimated 64 An inclusive nation where everyone feels they belong million Kenyans in the Equal opportunity for all Design of policies that reduce inequality in the country year 2030 (see Figure Ensure positive relations between the people and their 2.1). By this we mean leaders that the era where Reduce the adverse effects of politics on governance hospitals, schools and Bring the government closer to the people other facilities were built, Devolved governments as a platform for accessing without the requisite rights enshrined in the constitution operational resources to enable there utilisation must come to an end. There must be an intimate relationship between all the parameters and actors necessary for effective access to and utilisation of public services. It is thus anticipated that this will actually lead to the outcomes anticipated under the Constitution of Kenya 2010 and expected by citizens of the country. Page | 16
Figure 2.1: Kenyas Projected Population Growth Pattern
As is illustrated in Figure 2.2 the foundations of developmental devolved government will be to commit to incorporating citizen participation in all developmental initiatives at the county level. These counties will have to cooperate in a manner that will grow local economies and position them to be competitive locally and/or regionally as appropriate. They will also have to focus on, building and maintaining quality places, promoting inclusive growth and generally managing counties for prosperity.
2.6.1
Building Blocks for Cooperative and Competitive Counties
Prosperity of the new counties and therefore that of the Kenyan people, individually and as a whole is dependent on enhancing access to opportunity to all citizens while ensuring adequate environmental protection. As nations struggle to attain and maintain economic competitiveness, the constraining effect of administrative boundaries becomes a matter of concern. For example, in respect of the United States of America, the Brookings Institution14 has argued that: ..as Congress shifts many now-federal powers to lower levels of government, it is missing a unique opportunity to resolve a fundamental flaw in America's governance structure: the absence of any authority at the metropolitanregion. All public policies are created by local governments with narrow
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parochial viewpoints or state governments too far from local conditions to be effective .. Figure 2.2: Building Blocks for Cooperative Competitive Counties in Kenya
This observation is pertinent for Kenya as we operationalise the CoK 2010. Kenya is rapidly urbanising and it is fully expected that by the year 2030, over 60 per cent of the population will be living in urban areas. Globally, the evidence available shows that the preponderance of economic growth will come from urban areas. In their report, Urban World: Mapping the economic power of cities15, McKinsey Global Institute report that: Half of the worlds population already lives in cities, generating more than 80 per cent of global GDP today. Only 600 urban centers, with a fifth of the worlds population, generate 60 percent of global GDP. In 2025, we still expect 600 cities to account for 60 percent of worldwide GDP but the cities wouldnt be the same. Over the next 15 years, the makeup of the group of top 600 cities will change as the centre of gravity of the urban world moves south and even more decisively, east. Companies trying to identify the most promising growth opportunities need to be able to map this movement and spot the individual cities where their businesses are most likely to thrive. It is therefore imperative that counties factor in measures to leverage the urban areas within their counties as engines of economic growth. In leveraging urban areas as Page | 18
instruments of growth, care should be taken to ensure that there is effective linkage between these urban areas and their rural hinterlands, where many Kenyans will still reside. This will also require that an overarching National Urban Growth and Development Framework be put in place to rationalise and coordinate urban development issues within and between counties, but also across the whole nation. The concern for us is that of aligning service delivery to the desired developmental outcomes.
2.6.2
Growing and Sustaining County Cooperative Competitiveness
The ability of the new counties to create wealth and enhance welfare outcomes of their citizens will depend on how well they are able to leverage the endowments, natural and otherwise, within the national, regional and global operating contexts. Attracting the jobs that improve welfare for citizens will not be achieved through lone ranger efforts. Experience elsewhere suggests that to prosper, a nation, and therefore our counties must leverage four key assets innovation, human capital, infrastructure and quality places16. Given the level of inequalities between and within Kenyan counties as well as close kinship linkages between some of them, it is feasible to consider competitiveness and complementarities within clear cooperative and collaborative frameworks. Such an arrangement responds to the application of the cluster concept to regional and national competitiveness.
The adoption of the cluster approach to industrialization, value addition for agriculture and industry as well as the special economic zones as national mechanism for the growth of competitive industries implies that counties must of necessity fit within this framework. Within the confines of the CoK 2010, counties will have to adapt spatial forms that will be most appropriate to their development needs. Literature identifies a number of spatial forms, including17:
corridors, in which settlements take a linear form; megacity-dominated clusters, in which expansion of a dominant megacity engulfs surrounding areas; sub-national regional clusters, in which no single settlement dominates development in the region; and trans-border clusters, in which adjacent settlements are located in different countries, but form a contiguous sphere of economic influence.
2.6.3
Paradigm Shift in County Public Service Delivery
The effectiveness and efficiency with which public services are provided to support inclusive growth, economic innovation and competitiveness and maintaining quality places will be key to the success of the counties. Public services have been defined as any of the common, everyday services provided by national and local governments with the aim of improving social welfare. They are used jointly by many citizen-
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consumers simultaneously and users cannot readily be excluded. Market mechanisms of demand and supply are inadequate for supplying public goods and services. Hence, collective (i.e., government) action is needed, to pay for these services and to distribute them, that is, to allocate both the costs and the benefits. The imperatives of effective and efficient public service delivery include the need for effective, integrated economic and spatial planning, appropriate financing/funding mechanisms, sound service management practices, good governance, and monitoring and evaluation. A key prerequisite is definition of the appropriate service levels, including answering the question of to whom the services should be provided. In addition, the issue of what level of government will be responsible for which function is pertinent. Global experience suggests that assigning service delivery functions and therefore revenue and expenditure assignments, is a fine balance. How this is achieved will be key in dealing with challenges in delivery of public services under the old constitution. We therefore argue that for Kenya the issue of service organisation and responsibility and therefore the organisation of public finances is important, with the key concerns being efficiency, effectiveness and appropriate citizen participation.
2.6.4
Building and Maintaining Quality Places
Building quality places is a priority for the counties. The operative question is simple: why would a citizen, a visitor or investor choose one locality over another for their engagement? Literature shows that the quality of a place is key to attracting the necessary human and other resources to achieve desired development outcomes. The Unite Kingdom, in its effort in this regard says that18: places where people live have a profound effect on their quality of life and life chances. This takes effect in a range of ways through, for instance, crime levels, pollution levels, employment opportunities, social ties and opportunities for community engagement, and the range and quality of local services, transport links and green space. Quality of place can then be understood as that subset of factors that affect peoples quality of life and life chances through the way the environment is planned, designed, developed and maintained. One of the reasons Kenya and many of its localities has been successful is the perception regionally that they offer better places for citizens and visitors to have gainful employment, to live and engage in leisure activities. The attributes that are key in achieving this sense include access to opportunity, access to excellent learning facilities, and a sense of security for person and property amongst others. Both from the demands of the CoK 2010 and the imperatives of a competitive economy, as well as the rapidly expanding population it will be important for the counties to prioritize the realization of such quality places.
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Figure 2.3: Challenge of Kenyas Population Dynamics
As illustrated in Figure 2.3, Kenyas current population is heavily settled along a 200 km buffer zone along the Kenya-Uganda railway line in the region characterised by high rainfall. With the anticipated growth in the population, there will be immense pressure on the available land in this high rainfall region to provide for residential, commercial, industrial and environmental protection needs. It then becomes imperative to begin to think about the spatial forms that will yield the quality places needed in within these circumstances, including measures to open up the medium and low rainfall areas with appropriate physical, social and institutional infrastructure. Another challenge in this regard is the mobility pattern of the population, where the major urban areas are largely male and youthful. Thus, creating the requisite quality places will have to deal with matters related to the spatial form of places, diversity of the populations and therefore of neighbourhoods, provision of schools, hospitals, energy, water, transportation and security. This will have to take due cognizance of climate change and environmental constraints facing the nation and each respective county.
2.6.5
Managing Counties for Prosperity
The Constitution of Kenya 2010 has set out the broad structure for governance including some of the key principles to guide governance. In respect of local governance, the counties are the main, recognised form of government. However, the Page | 21
CoK 2010 is largely silent on what happens below the county government, although as per Article 184, there is an implicit expectation that legislation on the governance and management of urban areas and cities will be formulated and that this should be effected in a manner that promotes or responds to urbanisation as a major demographic issue, but also a key growth driver. Given the imperative of dealing with governance of urban areas, the need for inclusivity and the imperative of economic growth, governance of counties must not only respond to these issues, but should be cost effective. This is important in ensuring that counties are able to channel maximum resources to development initiatives, away from recurrent expenditures.
2.7
CONCLUSIONS
The new constitution seeks to reverse the centralised non participatory governance paradigm by institutionalizing an embracing governance system and a leadership with integrity. It does this primarily by: establishing an enabling normative framework; creating relevant governance institutions; creating checks and balances on the exercise of executive power; providing for facilitative legislation; enhancing public participation in governance as a bulwark against abuse of power and tightening the process of recruitment, and retention of critical public officers. Figure 2.4: Critical Success Factors for Devolution in Kenya
To achieve the objects of devolution, the key building blocks, founded on effective citizen participation, devolved governance will require effective political parties, Page | 22
operations founded on ethics and values, effective development planning, a skilled human resources and sustainable funding as illustrated in Figure 2.2.
2.7.1
Effective Political Parties
Political parties have been described as the soul of politics. Political parties aggregate social interests and also present candidates for election to political office. The struggle for multi-party politics, popularly known as the second liberation was primarily about the re-introduction of plural politics. Political parties in Kenya continue to exhibit serious weaknesses which consistently undermine the process of democratisation. Among the weaknesses are: lack of ideology and hence mobilisation on ethnic basis; Lack of internal democracy; lack of both financial and human resources for effective administration; elite /founders capture; electoral violence and corruption. Because political parties process candidates for presentation to the public for election, parties weaknesses have been reflected in the choices of candidates presented for elections to the legislature and the local authorities. Persons who do not deserve to be in these institutions find their way through weaknesses in the nomination processes. Some corrupt party leaders, in order to avoid a competitive nomination process, buy voters support while yet others are given direct nominations to parliament or local authorities even after failing to be elected. Given the immense responsibilities conferred upon political parties under the constitution in the generation of leadership for the county governments it will be necessary to fundamentally reform political parties so that they can play their role of cultivating effective leaders of the devolved government. Article 91 and 92 provide for the nature, roles and conduct of political parties under the new constitutional dispensation. Legislation under Article 92 should be fast-tracked and enacted. It should provide for: regulation of political party funding; internal democracy in political parties; the conduct of party elections through an independent authority; effective sanctions against offending political parties including deregistration and barring from participation in elections as well as disqualification of offending party candidates.
The electoral commission should be empowered to enforce the revised Political Parties Act19 and a powerful dispute resolution tribunal should be created. 2.7.2 Leadership, Ethics and Integrity and the Constitution of Kenya 2010
Needless to say the devolved government will not succeed unless it embraces good governance. Governance has consistently been identified as the greatest obstacle to
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sustainable development. The UNDP defines Governance as the exercise of political, economic, administrative and legal authority in the management of a countrys public affairs at all levels. It comprises the mechanisms, processes and institutions, through which citizens and groups articulate their interest, exercise their legal rights, meet their obligations and mediate their differences20.
Institutions such as the Executive, Parliament, the Public Service, Judiciary, and Political Parties are the pillars of the countrys governance. When these institutions are led by unethical leaders or develop unethical organizational cultures, bad governance ensues. Ethical leadership is therefore critical to the reform of our governance. The Mo Ibrahim Index of African governance has identified five areas under which the quality of governance of a country can be assessed. These are: safety and security; rule of law, transparency and corruption; participation and human rights; sustainable economic opportunity; and human development. Kenya falls short on most of these qualities and the CoK 2010 has begun addressing some of the issues. The governance challenge under the new constitution revolves around how to cultivate an ethical leadership in both the political arena and the bureaucracy. This leadership must be cultivated for both the national and county governments. Without good leadership the institutions, processes and systems created under the CoK 2010 and the enabling policy and legislation will be subverted and undermined. Corruption and unethical conduct will also be devolved to the county level.
Leadership primarily refers to the ability to influence others to act towards a desired goal. Ciulla contends that ethics have always been a focal point in scholars definitions of leadership21. Ethical leadership refers to leadership founded on values and that advances the public interest for the benefit of the majority. Its main characteristics are:
It lays emphasis on moral conduct, duty and judgment. Leaders are people of the highest integrity, committed to building enduring organizations. Leaders have a deep sense of purpose and are true to their core values and have the courage to build organizations that meet the needs of their followers and recognize the importance of their service to society. Leadership impacts on organizational behaviour and on the surrounding society. Leaders make decisions with the knowledge that they are accountable for outcomes It requires both ethical behaviour and ethical decision making and such conduct is required of both individuals and organizations22.
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Ethical leadership describes leadership that is honest, trustworthy, credible, incorruptible, and courageous23. This kind of leadership requires the leader to be fully convinced that the goals (teleological ethics) as well as the means (deontological ethics) he is pursuing are good for the people he is leading and the willingness to risk or sacrifice his own interests, comfort or convenience for the greater good. To operationalise the leadership, ethics and integrity provisions of the Constitution particularly in regard to the devolved government the following measures among others will be necessary:
Enactment of enabling legislation under the various chapters including Chapter Two ( Article 10) ; Chapter Four (Bill of Rights); Chapter Six, Chapter Seven (free and fair elections, political parties), Chapter Eight (recall, public access and participation), Chapter Nine (impeachment); Chapter Eleven (removal of governor, suspension of county governments, qualifications of county assembly members, public participation and county assembly powers); public finance (accounts and audit, procurement of goods and services; public service (values and principles of public service, staffing of county governments, protection of public officers). Development of appropriate policy to ensure the emergence and sustenance of good governance and ethical leadership. Among such policies are the National Value System Policy and the National Anticorruption Policy. These policies should operate at all levels of government Establishment of critical leadership and integrity institutions. Certain key institutions will have to be created to ensure that the objectives of the constitution are met. These include: the Ethics and Anti-corruption Commission, the Ombudsman, the Police Oversight Authority, the new Public Service Commission, the Judicial Service Commission and a powerful Regulator of Political Parties. All these institutions must have mechanism to operate at the county level. This could be through devolved offices or the delegated processes within the county establishment. Creation of an informed, active citizenry through a sustained National Civic Education Programme. A national policy and long term programmes for civic education should be developed by the national government as part of its constitutional obligation to create capacity for the devolved government. This should be anchored in legislation. Capacity building for the political leaders at the county level to effectively and efficiently deliver services of the county government. Systematic and institutionalised Capacity building for the county political leaders should be required by legislation as part of the transition measures. Government institutions such as the Kenya Institute of Administration should be obligated
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to undertake a crash programme for the first crop of leaders of the county governments within the first one year after elections. Need for an urgent and immediate capacity building programme for non-state actor organizations particularly CBOs and Councils of Elders amongst others to participate effectively in governance processes at the county level and hold leaders accountable at that level. This should also be provided for by legislation. Both the national government and county government should be obligated to budget for continuous capacity building
2.7.3
Unity in Diversity
Kenya is a diverse country in many respects, ranging from geographical and rainfall endowments to population distribution amongst others. Of critical concern is the extent inequality in developmental terms creates social and political tensions that act as a constraint to economic development. Some of the challenges of county governments will be to: ensure that national unity is upheld and maintained; and promote inclusive growth, while ensuring economic growth.
Answers to these and other critical questions will require that a close and symbiotic partnership be established between the county and national governments as well as the private sector focusing on growing competitive and innovative county economies in a manner that builds a united Kenya.
2.7.4
Skilled Human Resources
A review of developmental discourse suggests that the human resource, appropriately skilled is key to harnessing other endowments or lack thereof to drive development. It will be important that national and county governments, working in concert, move towards equalising the level of human resource skills across and within the counties.
2.7.5
Sustainable and Equalising Funding
Given the diverse developmental conditions in the country, it will be critical, and in adherence to the need to build a more equal society the funding mechanisms and instruments should not only ensure a predictable and sustained flow of funds to counties, they should also ensure that county governments are actively directed to ensure that revenue due is collected.
2.7.6
Citizen Participation
The Constitution of Kenya, 2010 seeks to ensure effective citizen participation in all facets of governance, to which the county governments must respond. The importance of participatory governance is embedded in almost all chapters of this report with one chapter fully dedicated to this theme.
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3
3.1
CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA

CONCEPT OF A CONSTITUTION
A constitution is the instrument or law that organizes and manages governance and state power. It defines, distributes and constrains the use of state power. It is a power map to be followed in constructing a society and running the affairs of state. There are two approaches to the organization of governance and management of state power. One is the single-dimensional approach which follows a single horizontal dimension in its organization of governance and state power. It produces a centralised system and structure of government and is based on centralization and concentration of power. The second is the multi-dimensional approach which organizes and manages governance as well as state power along multiple lines. It defines, distributes and constrains the use of state power along multiple lines. It combines vertical and horizontal dimensions and forms the foundation of devolved systems and structures of government. It is founded upon the concept of decentralization and devolution of power. According to Article 10 of the constitution, which sets out the values and principles of governance, devolution and sharing of power is identified as one such value and principle that should guide our governance system. This means that the Kenyan people have settled for a multi-dimensional approach to the organization and management of governance and state power. They have chosen a devolved system of government which we must therefore seek to clearly understand.
3.2
THE CONCEPT AND THEORY OF DEVOLUTION
A devolved system of government follows the multi-dimensional approach to the organization and management of governance and state power. It seeks to organize governance and manage state power both vertically and horizontally and thus to define, distribute and constrain the use of state power both vertically and horizontally. Under this system, one creates two or more levels of government that are co-ordinate, but not subordinate to each other. None of the levels of government is a mere agent of the other. Each is created and protected by the constitution. The functions each performs are set out and defined by the constitution. The resources each uses to discharge these functions are also provided for in accordance with constitutional provisions. The system combines self-governance and shared governance at the local and national levels respectively. The essence of this is that at the local level the people are allowed a certain flexibility within which they can make decisions that are unique to
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themselves and their locality. The laws they make are only applicable to their county and do not apply and are not enforceable in other counties. They are allowed a measure of self-governance at this level but at the national level, decision-making is shared. Therefore, the laws which are made at this level are applicable to and enforceable in the whole country. Because of this there must of necessity be some shared institutions and infrastructure through which the shared decisions have to be made. But institutions can also be perceived as shared not because they participate in shared decision-making but because they serve and render services to both levels of government. One of the most important shared institutions in the architecture and design of a good devolved system of government is the bicameral parliament, in which, one component is conceptualised as belonging to and representing the national level of government while another component is conceptualised as belonging to and representing the sub-national level of government. This design is informed by the fact that legislation making at the national level is largely supposed to be shared between national and county levels of government. Quite apart from the bicameral parliament the constitution of Kenya is designed with quite a number of other institutions which are conceptualised as shared in nature. These include independent commissions and offices.
3.2.1
Independent Commissions as Shared Institutions
The constitution of Kenya establishes quite a number of independent commissions which in a number of respects can be perceived as shared institutions. Most of these commissions render services to both levels of government. These commissions are so important in the operationalization and functioning of devolution that they cannot risk losing their independence and becoming controlled by only one level of government. As such, they are to be regarded as shared institutions which must be answerable and accountable to both levels of government. They must never regard themselves as institutions of the national level of government but as independent state organs. The Commission on Revenue Allocation which is established by Article 215 of the constitution has its functions spelled out by Article 216 as including the generating of recommendations for the vertical and horizontal sharing of the revenue raised nationally. The recommendations provide a framework for the equitable shares for both levels of government and for each county. The Ethics and Anti-Corruption Commission referred to by Article 79 is mandated to ensure compliance with and enforcement of the provisions of the integrity standards set out in chapter six of the constitution which deals with leadership and integrity. Chapter six of the constitution sets out integrity standards for leaders not only at the national level of government but also the county level of government. The chapter
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refers to leaders in terms of state officers. But Article 260 defines the concept of a state officer as including officers serving the county level of government. The Ethics and Anti-Corruption Commission to be established in terms of Article 79 will therefore be enforcing the integrity standards for not only the national level of government but also the county level of government. The Human Rights and Equality Commission, which is established by Article 59 of the constitution is conferred with functions which to a large extent play an important role in the protection and enforcement of human rights at both the national and county levels of government. An analysis of the functional distribution to the two levels of government points at the fact that greater responsibility to ensure that the socio-economic rights are fulfilled falls on the county level of government. To the extent that the Human Rights and Equality Commission is required to enforce even the socio-economic rights, the commission will be enforcing such rights against both the national and county levels of government. The National Land Commission is established by Article 67 and mandated to manage public land on behalf of not only the national government but also the county governments. The commission is also supposed to recommend a national land policy to be used in the administration and management of land by both levels of government. In addition, the commission will have the functions of assessing all the taxes on land and other immovable property and to monitor and have oversight responsibilities over land use planning throughout the country. Through these functions, the National Land Commission will be rendering services to both national and county levels of government. The Public Service Commission which is established by Article 233 of the constitution has its functions set out by Article 234. These include the promotion of the values and principles referred to in Articles 10 and 232 throughout the national public service; and the evaluation and reporting to the President and Parliament regarding compliance within the public service with the values and principles set out in Articles 10 and 232. The commission is also mandated to hear appeals from county public servants. As such, it is a shared institution of both the national and county levels of government. The Salaries and Remuneration Commission which is established by Article 230 has the functions of setting and regularly reviewing the remuneration and benefits for all state officers; and the advising of the national and county governments on the remuneration and benefits of all public officers. Finally, the Independent Electoral and Boundaries Commission which is established by Article 88 responsible for various matters provided for by the constitution. Fundamental among these responsibilities is the conduct and supervision of referenda and elections to any elective body or office established by the constitution,
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and any other elections as may be prescribed by an Act of Parliament. The particular activities encompassed in this function are the continuous registration of citizens as voters; the regular revision of the voters roll; the delimitation of constituencies and wards; the regulation of the process by which parties nominate candidates for elections; the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results; the registration of candidates for elections; voter education; and the facilitation of the observation, monitoring and evaluation of elections. All these activities are to be done in respect of elections at both the national and county levels of government.
3.2.2
Independent Offices as Shared Institutions
Quite apart from the commissions, there are also independent offices which are also conceptualised as shared institutions. Indeed these offices will be expected to render very important services to the Kenyan people; and by all means cannot be seen as offices belonging to and controlled by one level of government. They must be seen as having been conceptualized and designed as shared institutions, which serve both levels of government and ought to be completely independent of the two levels of government. The first among these offices is the controller of budget, which is established by Article 228 of the constitution, sub-Article (4) of which confers on the controller of budget the function of overseeing the implementation of the budgets of the national and county governments by authorizing withdrawals from public funds under Articles 204, 206 and 207. Under sub-Article (6) the controller of budget is required to submit to either house of parliament, after every four months, a report on the implementation of the budgets of both the national and county governments. The second is the Auditor-Generals office, which is established by Article 229 and mandated by the constitution to audit the accounts of both the national and county levels of government. Article 229(4) requires the Auditor-General to within six months after the end of each financial year, audit and report on the accounts of the national and county governments; the accounts of all funds and authorities of the national and county governments; the accounts of all courts; the accounts of every commission and independent office established by the constitution; the accounts of the national assembly, the Senate and the county assemblies; the accounts of political parties funded by public funds; the public debt; and the accounts of any other entity that legislation requires the Auditor-General to audit.
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3.3
OPERATIONALIZATION OF SHARED INSTITUTIONS
The operationalization of these institutions and offices ought to recognize and emphasize the fact that these institutions and offices are shared. A number of factors may need to be taken into account in this exercise. First and foremost, their composition may be made representative of both levels of government to ensure their independence and to avoid their being unduly controlled by only one level of government. This can be done with those whose composition is supposed to be provided for by an Act of Parliament. Secondly, processes of appointing their members could be structured in such manner as to require approval by both houses of Parliament. Interviewing panels could be made to include representatives of county governments or associations of counties. Thirdly, in the daily operations of these shared institutions, provision could be made calling for a cooperative relationship between them and the county governments as well as the national government. Such cooperation should involve consultation and negotiations with county governments or associations of county governments whenever certain decisions have to be made. These needs should inform the development of policy, legal and institutional infrastructure for PROPOSALS ON OPERATIONALISING intergovernmental relations. SHARED INSTITUTIONS Finally, in their organization and discharge of their functions, they must be decentralized to ensure that the services they render are accessible in most if not all parts of the country. Article 174 which provides for the objects of devolution recognizes the need to decentralize all state organs, their functions the parts of the country.
Shared composition of the institutions to secure independence Approval of key office bearers by both houses of Parliament Operating mechanisms incorporating consultation mechanisms with both levels of government Decentralisation of operations
and services from the capital city to all
3.4
THE FORM OF DEVOLUTION
The starting point is to appreciate the fact that there is no uniform form of devolution. Different variants exist and each country for one reason or another adopts a variant that is unique to itself. This therefore requires that we examine the Kenyan devolution to be able to know its form and to understand the relational principles informing it. Article 6(2) describes the governments at the two levels as being distinct and inter-dependent and which are required to conduct their mutual relations on the basis of consultation and cooperation. This is therefore a devolution not based on the principle of absolute autonomy but instead, on that of interdependence and cooperation. In form therefore, it is a system that combines a certain measure of autonomy and inter-dependence. The end result of this combination is Page | 31
what may be called a cooperative system of devolved government. Cooperative devolved government may be said to be founded upon three relational principles; namely, the principle of distinctness; the principle of inter-dependence; and the principle of oversight.
3.4.1
The Principle of Distinctness
When defining devolution it was observed that under this system of government, the constitution creates two or more levels of government which are coordinate and not subordinate to each other. Article 6(2) provides in this regard that the governments at the national and county levels are distinct. This connotes a measure of equality and autonomy among the two levels at least in the sense of each one of them being created by the constitution as opposed to being created by another level of government. None is created and therefore can be abolished by another level of government. However, as will be noted when discussing other principles, this is not complete autonomy as the governments are also inter-dependent. Distinctness in this sense rules out the concept of hierarchy as a relational principle. In effect, the levels of government must have the freedom to make decisions in the functional areas assigned to them by the constitution without interference from the other level of government. At the relational level, this principle calls for a certain measure of mutual respect among the two levels of government. Article 189(1)(a) in this regard requires government at either level to perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and in the case of county government, within the county level.
3.4.2
The Principle of Inter-dependence
When defining devolution, it was observed that this is a system which combines selfgovernment at the local level and shared government at the national level. Because of this concept of shared-ness the system in its relational functioning becomes interdependent. Inter-dependence is necessitated by a number of factors. Firstly, is the fact that the consumers of the services rendered by the two levels of government are the same citizens of Kenya although located in different parts of the country. Secondly, in the distribution of functions, quite a number of functions are concurrent in nature. Thirdly, others functions are assigned on the basis of national government formulating national policy and setting national standards while the county level is assigned the implementation functions. Inter-dependence then becomes the foundation of the concept of cooperative government. Although Article 6(2) provides that the governments at the national and county levels are distinct, it also goes further and adds that they are also inter-dependent. Because
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of this, Article 6(2) further adds that, as such, the governments should conduct their mutual relations on the basis of consultation and cooperation. According to Article 189(1)(b) & (c), Inter-dependence in this case requires that the two levels of government not only assist, support and consult each other and, as appropriate, implement the legislation of the other level of government; but also liaise with each other for the purposes of exchanging information, coordinating policies and administration and enhancing policy. At the relational level, cooperative government therefore requires that there be intergovernmental dialogue on the basis of consultation and cooperation which may even lead to the setting up of joint committees and joint authorities. It has already been noted that in the assignment of functions one approach that is often used is to assign to the national level of government the functions of formulation national policies and setting of the national standards while the county level of government is assigned the function of implementing those policies and standards. Because of this the policy formulation and the standards setting functions of the national government must include a certain measure of monitoring and evaluation, which creates an oversight relational aspect. From this perspective and the fact that the national government legislates for the whole country while the counties are expected to operate within the framework of this national legislation, the national level of government is conferred with a measure of oversight. But it must be noted that this does not create a hierarchical relationship between national and county levels of government since the national legislature is a shared institution. This gives the county levels of government a role in the formulation of policy and the setting of standards at the national level. Oversight does not therefore oust the principles of distinctness and inter-dependence. Cooperative devolved government will require that as a country, we move away from our usual adversarial approach to issues and embrace a system of consultation, negotiation and consensus building in the running of the affairs of state. A new meaning of consultation and negotiation must be embraced. Intergovernmental relationships between and among governments therefore, should be based on and informed by these principles of cooperative government. The vertical relationships between national and county governments must be on the basis of cooperative government. Similarly, the horizontal relationships among various county governments must be based on the principles of cooperative government. Article 189 already referred to above elaborates on this concept of cooperative government. It requires either level of government to observe a number of things. First, government at either level should perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of
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government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level. Secondly, government at either level is required to assist, support and consult and, where appropriate, implement the legislation of the other level of government. Thirdly, government at either level should liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity. Fourthly, government at each level, and different governments at the county level, are required to co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.
3.5
OBJECTS AND PRINCIPLES OF DEVOLUTION
In settling for and establishing a devolved system of government, the new constitution at Article 174 identifies a number of things as the objects of devolved government. These are the promotion of democratic and accountable exercise of power; the fostering of national unity by recognizing diversity; the giving of powers of self-governance to the people and enhancing of the participation of the people in the exercise of the powers of the state and in making decisions affecting them; the recognizing of the right of communities to manage their own affairs and to further their development; the protection and promotion of the interests and rights of minorities and marginalized communities; the promotion of social and economic development and the provision of proximate, easily accessible services throughout Kenya; the ensuring of equitable sharing of national and local resources throughout Kenya the facilitation of the decentralization of state organs, their functions and services, from the capital of Kenya; and the enhancement of checks and balances and the separation of powers. On the other hand Article 175 sets out a number of principles meant to guide the operations of the devolved governments. The county governments are required to be based on democratic principles and separation of powers. They must be availed reliable sources of revenue to enable them to govern and deliver services effectively and they must ensure that each of the two genders have at least a third of the members of representative bodies in the county.
3.6
ARCHITECTURE AND DESIGN OF DEVOLUTION IN KENYA
The Success of devolution depends on a proper architecture and design of the system. A properly designed system will necessarily have the following characteristics: 1. Constitutional creation of two or more levels of government with each having sovereignty and directly impacting upon its citizens. The first design question one must therefore address is that of the total number of orders or levels of
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2.
3.
4.
5.
6.
government one would like to create. A well designed devolved system would normally have three levels of government; namely, the national, sub-national and local government. Many of the old federal and good devolved systems are designed in this manner. The USA for instance, has the Federal, State and County or local government levels; Germany has the Federal, Lander and local government levels; and South Africa has the National, Provincial and Municipal levels of government. In most of these systems the third level of government is normally the traditional local government level which has developed into two streams of rural and urban local government. Constitutional creation of geographic units of governance at the sub-national level into which the country is to be divided and the clear delineation of their boundaries. The second design question one has to confront is the determination of the total number of geographic units of devolution into which the whole country should be divided. A number of scholars have suggested certain factors which may need to be taken into account when addressing this question. The scholars observe that the more comparable the constituent units are in size, institutional structure, administrative capacity, economic viability and financial strength, the more stable the system will be as a whole. It is emphasized that a proportion be observed between the total territorial size and the number of the constituent units. The larger the territory, the greater the number of tolerable constituent units that can comprise the devolved system. Efforts ought to be made to avoid the reality of operational dangers of having too many constituent units. A formal constitutional distribution of governance and development functions of each level of government clearly delineated and ensuring some areas of autonomy for each. In the assignment of functions, it will be observed in a later chapter of this report that a number of principles are relevant. These include the principles of subsidiarity, transferability and the three categories of functions; namely, the exclusive, concurrent and residual functions. Constitutional provisions setting out clear rules for the allocation of resources among the levels of government ensuring that each level of government has sufficient resources to enable it discharge its responsibilities. The main operational principle in this respect is that resources must follow and match responsibilities. Constitutional establishment of governance institutions at each level of government with designated representation of distinct regional views within the national-policy making processes and institutions. Notably, the concept of shared decisions necessitates the creation of some shared institutions. A supreme written constitution that is not unilaterally amendable by any one level of government, but instead, requires the consent of a significant proportion of the constituent units. Since we have noted that the protection of Page | 35
the two levels of government is rooted in the fact that each is created by the constitution; the functions they perform are assigned by the constitution; and the resources the use are provided for by the constitution, it would undermine devolution if only one level of government were to be empowered to amend the constitution. To do this would enable such level to use constitutional amendments to abolish or adversely adjust the position of the other level of government. Chapter sixteen which deals with amendments to the constitution has taken this into account and ensure that only one level of government can alone amend the constitution. Through the bicameral parliament the county levels of government have been given an opportunity to participate in constitutional amendments. 7. A constitutionally entrenched system of cooperative government with constitutional processes and institutions for facilitation of intergovernmental cooperation and collaboration for the areas where governmental responsibilities are shared or inevitably overlap. 8. A constitutionally entrenched system of intergovernmental relationship with provision for dispute resolution, and provision for an umpire, such as the Constitutional or Supreme Court to rule on any disputes between governments. These factors which go into the architecture and design of a good devolved system will be discussed in detail in some of the subsequent with efforts being made to set out the ideal and general approach in many other places; followed by an analysis of how the constitution of Kenya has handled them. But before this discussion is done one needs to appreciate that devolution cannot be properly implemented in isolation from other very important aspects of the constitution. The constitution is a comprehensive totality that is interlinked, interlocked and interdependent. Indeed, devolution permeates all the other parts of the constitution. Identified among these very important aspects is the concept of the value foundations of the constitution. These are very important because they are overarching and permeate all other aspects of the governance system, including devolution.
3.7
THE VALUE FOUNDATIONS OF THE CONSTITUTION
The new constitution is founded on a very strong value system. It seeks to identify, and establish certain values as the foundation of the governance system that the Kenyan people have put in place. These values, it is expected, should lead to a system of good governance. It will be argued that the implementation of devolution and the operation of the county governments ought to be informed by these values. There are various chapters and Articles of the constitution which can be said to be focused on putting in place a value system providing a framework within which the governance institutions are expected to operate.
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Articles 2(6) and 21(4) lay the basis for the application of obligations arising from treaties, conventions and other international instruments to which Kenya is signatory. Thus in implementing devolution, all proposals must reflect on implications of these obligations on policies, laws and regulations that will impact on the implementation of devolved government24. However, in applying them it must be ensured that these are not inconsistent with the Constitution of Kenya 2010. One of the key challenges then is to review all of these and the implications they could have on devolved governments, especially in respect of implications they have on the manner in which power is devolved and assigned to lower levels of government in promoting democracy and good governance. Article 10 which provides for the national values and principles, of governance is foundational in this respect. First and foremost, the Article identifies patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people. Secondly, the Article also identifies human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized as another set of national values. Thirdly, good governance, integrity, transparency and accountability are also identified as another set of core values. Finally, the Article identifies and sets apart sustainable development as a central value in this new system. A number of core values considered as overarching and applying to both national and county government can be identified. These are the concept of government in the service of the welfare of the people normally incorporated in the principle of republicanism; the need for servant leadership founded on high integrity; the concept of participation, inclusiveness and protection of minorities and marginalized groups; the respect and promotion of human rights as a basis of governance; and the very important role of political parties in governance.
3.7.1
The Fundamental Values and Principles of Good Governance
One of the most important values which runs through and must inform the entire governance system is the concept of government as an instrument in the service of the welfare of the people. This value stems from the concept of a republican system of governance. Historically the theory and concept of a republic is said to have originated in Rome where it was introduced in opposition to Gaius Julius Caesar and where it was referred to as Res Publica, meaning public business or public property. It referred to a system of government meant for the common good. In the various attempts that have been made to define republicanism and explain what is constituted by the concept, a lot of emphasis has been put on mans rejection of misery and the pursuit of his own welfare as being at the core of republicanism. Republicanism is given a definition that rejects not only slavery but also monarchy as a system of governance. The people rejected oppression, dictatorship and monarchy
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in preference to self-determination and self-rule. Republicanism is therefore presented as a system of self-rule in which the people play a central role in two ways. One, the people emanate all the authority which the leaders exercise on behalf of the people. Two, all governments are established, instituted and meant to serve the welfare of the people. The concepts of social contract, the will of the people and the sovereignty of the people exemplify this theory of republicanism; of self-rule and selfdetermination. In recent modern times, James Madison in his Federalist paper No. 39 defines republicanism as being a system of government in which, all authority to govern derives from the people directly or indirectly. Those who administer that authority on behalf of the people, do so during the pleasure of the people, during a limited period of time and during their good behaviour. The essence of republicanism, therefore, is that all authority derives from and belongs to the people. When the people through the social contract theory establish governments and delegate some of these authority and power to them, they do so for only one purpose; service of the welfare of the people. Republicanism recognizes that governance is representative in nature and therefore, demands for servant leadership. It calls for leadership that does not usurp the power of the people and use it for their own personal aggrandizement, but instead focuses on service to the welfare of the people. Leadership is not supposed to use the authority and power of the people to impoverish and destroy the people but to serve their welfare. Because governance is representative, the challenge of contemporary constitution making is how to secure a leadership of integrity which will focus all its efforts on serving the welfare of the people and avoid a conflict between personal and public interests. The constitution of Kenya establishes a governance system which recognizes a number of the core values and principles of governance. These are one, the sovereignty of the people as the source of all authority to govern. Two, that all governments are established and instituted by the people to serve the welfare of the people. Three, that those to whom authority of government is delegated to administer on behalf of the people; do so during the pleasure of the people; during a limited period of time; and during their good behaviour. Four, that openness, transparency, and accountability as opposed to secrecy in governance is central. Five, that leadership ought to be based on the principles of integrity and service to the people. It is for this reason that Article 35 of the constitution makes provision for a right of access to information held by the state. Similarly, Article 211(2) obligates the Cabinet Secretary responsible for Finance to table in Parliament information about the level of public indebtedness whenever the house so resolves.
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3.7.2
Sovereignty of the People
Article 4 declares Kenya a sovereign republic, which shall be a multi-party democratic state founded on the values and principles of governance referred to in Article 10. The preamble to the constitution on the other hand recognizes the concept of the sovereignty of the people. It notes that we the people of Kenya are sovereign and have an inalienable right to establish and determine the form of governance of our country. Article 1 declares that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the constitution. The people are therefore sovereign and they normally express their will about how they would like to be governed through the constitution. When they do so, the constitution then becomes the supreme law. Sovereignty therefore lies with the people and supremacy with the constitution as the expression of the will of the people. Indeed, Article 2 provides for this supremacy, and declares that no person may claim or exercise state authority except as authorized by the constitution. Article 94 establishes the legislative authority of the Republic and recognizes that this authority derives from the people. Sub-Article 94(1) provides that legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. Sub-Article (2) on the other hand emphasizes that Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty. Similarly, the chapter on the executive describes executive authority as deriving from the people. Article 129(1) declares that executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution. The chapter on the judiciary also establishes judicial authority as an authority deriving from the people. Article 159(1) notes that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. The constitution of Kenya therefore establishes a governance system that recognizes the sovereignty of the people as an important governance value. Devolved government must be implemented within a framework which subjects government to the will of the people.
3.7.3
Service to the People
Once again, the preamble recognizes that in establishing and determining the form of government, the Kenyan people intended it to serve only one purpose; the nurturing and protecting the well-being of the individual, the family, communities and nation. The executive chapter puts emphasis on this concept of service to the welfare of the people and declares at Article 129(2) that Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. Page | 39
Chapter six, which deals with leadership and integrity, recognizes this concept of service to the people. Article 73 describes authority assigned to a State officer as a public trust and provides that, such authority vests in the state officer, the responsibility to serve the people, rather than the power to rule them. Notably, service to the welfare of the people is done through proper management and development of the resources to generate more and the equitable distribution of the same to ensure that all the members of the society get their due share. The preamble in this respect points out that we the people of Kenyan are respectful of the environment, which is our heritage, and are determined to sustain it for the benefit of future generations. For this reason, Article 60 establishes principles of land policy that require that land in Kenya be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The chapter on Public Finance also establishes very elaborate principles and framework for public finance management. Article 201 sets out these principles in a manner that would ensure that public finances are well managed for the benefit of the Kenyan people to whom they belong. The chapter on Public service at Article 232 also establishes very elaborate values and principles of public service. These values also focus on delivery of public services in a manner that lays emphasis on the principles of the welfare of the people. Similarly, the principles of national security provided for at Article 238 focus on the same issue of service of the welfare of the people. Sub-Article (1) declares in this respect that national security is the protection against international and external threats to Kenyas territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests. In all these cases emphasis is put on transparency, openness and accountability to the people of Kenya. So as to be able to serve the welfare of the people, this system of governance calls for responsible government and leadership. It calls for servant leadership that is selfless, honest and committed to the service of the people. Republican leadership must be a leadership of very high integrity and willingness to deny itself for the sake of the people. The Kenyan constitution therefore sets out certain integrity standards to be observed by its leadership.
3.7.4
Leadership and Integrity
If a republican system requires that those who administer the power of the people do so during the pleasure of the people; during a limited period of time; and during their good behaviour, a good constitution then ought to set out integrity standards against which the behaviour of the leaders can be evaluated. Chapter six of the constitution seeks to do this. It identifies and sets out certain integrity standards that, it is believed, if well observed would lead to the proper service of the welfare of the people by the leaders. Page | 40
Article 73(1) establishes these standards in the form of responsibilities of leadership by pointing out that any authority assigned to a state officer is a public trust meant to benefit the people. The Article emphasizes that it is a public trust to be exercised in a manner that is consistent with the purposes and objects of the constitution; demonstrates respect for the people; brings honour to the nation, to the office; and promotes public confidence in the integrity of the office. The Article further declares that the authority vests in the state officer the responsibility to serve the people, rather than the power to rule them. Sub-Article (2) then sets out the guiding principles of leadership and integrity. They include selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices; selfless service based solely on the public interest, and demonstrated by honesty in execution of public duties. Such selflessness would also be demonstrated by the declaration of any personal interest that may conflict with public duties. Also included in the principles of leadership and integrity is accountability to the public for decisions and actions and discipline and commitment in service to the people. Chapter six also prescribes a standard of behaviour expected from a leader whether in public and official life, in private life, or in association with other persons. Article 75, demands that a state officer avoids any conflict between personal interests and public or official duties; compromising any public interest in favour of personal interests; or demeaning the office the officer holds. On the other hand Article 76 addresses material and financial matters of the state officer. Any gifts he receives while on an official occasion belong to the state and should be turned over to the state. Similarly, state officers under Article 76(2) are not allowed to maintain bank accounts outside Kenya except where legislation permits them to do so. Article 77 establishes further integrity standards which restrict the activities of a state officer. While in full-time employment, he is not supposed to participate in any other gainful employment. Appointed state officers cannot hold office in political parties. If retired and receiving pension, they cannot hold more than two concurrent remunerative positions as chairperson, director or employee of a company owned or controlled by the state or a state organ. Article 78 restricts appointment and election to office to citizens. On the other hand, Article 75(2) sets out the consequences for a person who contravenes the integrity standards set out in this chapter. These include disciplinary action relevant to the office and the contravention; and dismissal or otherwise removal from office. The most important consequence however, is being disqualified
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from holding any other state office if a person has been dismissed or removed from office for contravention of the integrity standards. Under Article 80, parliament may enact legislation that provides for additional penalties. This could include legislation for tracing and recovery of proceeds of crime. Research indicates that the most effective way to fight serious economic crime is to take the profit out of the crime. Legislation may also establish the Ethics and Anticorruption Commission to ensure compliance with these integrity standards. At the architecture and design level, many constitutions seek to capture these republican values and principles by providing for periodic elections, impeachment, vote of no-confidence, power of recall, limited terms of office and any other manner and method of removal from office for misbehaviour. Indeed, chapter six of the constitution, which deals with leadership and integrity, is one of the design mechanisms for giving effect to these fundamental values and principles. A reading of the constitution indicates some of these values are provided for, in respect of government at the national level. It will be important to bear in mind that these values are relevant and meant to apply even to government at the county level. In proposing policy and legislation to implement devolution, these values should be regarded as overarching and be provided for in respect of county government.
3.7.5
Participation and Inclusiveness
Another very important value to pay attention to at both levels of government is that of participation, inclusiveness and protection of minorities and marginalized groups. The constitution is providing a major paradigm shift from a system of extreme exclusion and marginalisation to a system that puts emphasis on inclusion and participation of all sectors of the society in the affairs and benefits of governance. Article 10 which sets out the values and principles of governance that bid all State organs, state officers, public officers and all persons whenever they apply or interpret the constitution; enact, apply or interpret any law; or make or implement public policy decisions identifies participation and inclusiveness as being among these values. Participation and inclusiveness should not be ends in themselves but means to an end. They should not be restricted to playing a role in decision making but also being involved and included in the benefits of governance and the sharing of resources. That is why the Article also makes reference to equity and social justice as values. Participation, inclusiveness and protection of minorities and marginalized groups should be recognised as binding both levels of government. They should be understood as overarching values which must inform governance at both levels of government. These values will need to be mainstreamed in many parts of the constitution such as budgetary processes, planning processes, policy formulation processes among others. Policy and legislative proposals in these areas will therefore Page | 42
make recommendations about how these values will be achieved at both national and county levels of government. But because of the importance of this subject the Interim Report has a separate chapter discussing the concept and mechanics of these values.
3.7.6
The Important Role of Political Parties
Political parties are identified by the constitution as playing a very important role in governance. They are an important vehicle for mobilization of the people and public opinion. They nominate candidates for election to various elective and appointive offices. Marginalized groups and women gain representation and participation to certain important institutions such as parliament and the county assemblies as well as the cabinet and the executive committee at the county level through nomination by political parties. The parties will form governments at both levels of government and will therefore drive the process of formulation of the governance and development policies and priorities. Yet experience shows that political parties in Kenya are not formed on the basis of ideology. They have not themselves developed principles of democracy and good governance. Internal discipline and democracy are lacking. If these maladies of political parties are not addressed in the process of the implementation of devolution, the successful implementation of devolution will suffer. As proposals are made on devolution it should be borne in mind that there is need to address these problems of political parties to ensure that the gains of the new constitution are not undermined by the poor practices of political parties. As we implement leadership and integrity, we should place some obligations on political parties to ensure that in nominating candidates to leadership positions, they play a role and ensure that the country and the counties get leaders of very high integrity standards.
3.8
CONCLUSIONS
Kenyans have put in place a Constitution that affirms one nation, organised at two levels of cooperative, independent and interdependent governments. This by OUTSTANDING ISSUES and large implies that the relations Review of the implications of international between the two levels will have to treaties and conventions on devolved respond to these imperatives. government The next chapters discuss in greater operational details the architecture and design of devolution as envisaged in the Constitution of Kenya.
Identification of other shared institutions
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4
4.1
LEVELS AND UNITS OF DEVOLVED GOVERNANCE

INTRODUCTION
This chapter discusses the Kenya design of devolution which has two levels, National and County governments, with a major focus on further decentralisation highlighting units of County governments. Apart from this introduction, the chapter begins by an overview of local governance highlighting the principles of local governance, including decentralization followed by a discussion of the two levels of government. This is followed by a section discussing cities and urban areas as units of governance. The sub section presents the role of cities in development, context, classification, and the city of Nairobi. The third sub section discusses the challenges of the 47 counties, while the fourth sub-section pulls out policy and legal gaps and provides options and recommendations. The last sub section concludes and highlights outstanding issues.
4.2
LOCAL GOVERNANCE
Governance debates revolve around centralization and decentralization highlighting both the advantages and disadvantages of each of the governance systems. While it has been acknowledged that experiences of decentralization irrespective of whether it takes a devolution or de-concentration form have not been very successful, there is consensus on potential benefits of decentralization, which include delivery of improved services nearer to those being served and improving accountability. Decentralisation, in particular devolution shifts points of service delivery from central government to local governments resulting in significant changes in budget allocations as well as service delivery.
4.2.1
Principles of Local Governance
Decentralisation, in particular devolution is assumed to facilitate cross sector development tailored to local needs, but its impact on development varies considerably depending on the circumstances of each case including the level of devolution, and the local government capacity to implement services among others (JICA 2008). Policies and regulations are important for ensuring orderly development including growth of cities and urban areas. However, considering different backgrounds, needs and governance structures of local governments, principles of subsidiarity and local responsiveness; economies of scale, externalities, equity, access and accountability are useful for planning and assessing service delivery. The principle of subsidiarity requires decision making to be carried out by the level of government that is closest to individual citizens (EU 1992). It is an important principle for efficient allocation of resources, accountability, and responsiveness. Economies of scale occur where the per unit cost of producing particular service falls as the quantity of the service provided increases; while externalities occur in cases Page | 44
where a specific service in one local government jurisdiction spill over on to residents of another jurisdiction. One way of dealing with such externality is to design government jurisdictions large enough to include all those that benefit from a particular public service. This internalizes the externality and ensures that all those that benefit pay for services. Examples of such services include water, roads and public transport. Taking into consideration the existing inequalities within regions, including cities and urban areas, and the Constitutional principles in the Bill of Rights, the principle of equity has to be applied. This means either taxing the wealthier areas and using some of the proceeds to subsidise the poor, or shifting the redistributive function to national government if the equalization grant is not adequate. The principle of access and accountability gives prominence to local residents, including city and urban residents who should have access to local government in order to influence urban processes including policy. Ways of ensuring this include: public meetings, hearings, elections, and direct contacts with officials. Smaller government units provide the average citizen with greater àccess to local decisions and as the levels of consolidation and concentration in local government system rise, so the capacity of the public to monitor policy makers' behaviour falls (Boyne 1992). It therefore follows that the larger the local government, the more likely it is that special interest groups will dominate citizen participation (Robert 2001). Accountability follows the above principle on the basis that the more accessible elected leaders are to their constituents, the more easily they can be held to account for their actions. Furthermore, accountability requires a link between expenditure and revenue decisions the body making the decisions about how much to spend should be responsible for raising a large portion of the revenues it requires. This creates a major challenge in dealing with the principle of equity in the context of the County governments, including de-concentrated entities such as cities and urban areas. This requires both policy and legal provisions, both at the National and County Government level for addressing the issue. Effective governance entails promotion of institutional frameworks that facilitate efficient governance which ensures improved central and local government relations, especially in relation to distribution and exercise of powers or functions where mutual cooperation, including subsidiarity is a key element. Other aspects include: cooperation between public and private sectors, including informal sector and communities; cooperation between government and Non-Governmental Organisations (NGOs). While these global attributes of governance have been applied in Kenya, they have not been domesticated and translated into local policies and laws. Effective implementation of the Kenya Constitution 2010 requires review of laws and policies in line with the Constitution and embedding participation in all laws and service delivery processes. Page | 45
4.2.2
Levels of Governance
While devolution embedded in the Kenya Constitution 2010 is appreciated, the two levels pose a challenge due to lack of Constitutional protection for lower units of government. The Constitution provides for 47 County governments established under Section 6 (1) with further listing of counties under First Schedule. The status, functions, and powers of County Governments are provided for under Chapter 11, Part 2 Section 176. Sub section 2 states that Èvery County Government shall decentralize its functions and provisions of its services to the extent that it is efficient and practicable to do so. While this provision allows Counties to decentralise to lower levels, the lower entities do not have Constitutional protection and can only operate under legislation which can be changed at the will of either the County or National government. The decentralised units are not assigned any functions, and are not revenue allocation centres. This implies that, they can only perform functions transferred to them by County governments or National governments, although the latter should be done with caution lest it is used to undermine County governments. To examine and provide for further decentralisation, this sub section conceptualises the decentralisation in two categories, rural areas and cities and urban areas. Figure: 4.2 Units of County Government
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4.3
RURAL AREAS
Further decentralisation in rural areas can be visualised in three levels (units) below the County namely: level 1, 2, and 3. The first level is tentatively referred to as sub county and is expected to embrace constituencies/districts, while the second and third levels will embrace wards/locations and villages/sub-locations respectively. While the concepts of constituency, districts, locations and villages are used, this paper acknowledges that these geographical regions in some cases overlap with each other. This will have to be addressed. For example, there are situations where constituency boundaries are the same as district boundaries, while in some cases they are not. The same case applies to wards and locations as well as villages and sub locations (figure 4.1). Within these same regions there are pockets of population concentration in cities and urban areas. The latter are unique and have been provided for in the Constitution as discussed below.
4.4
CITIES AND URBAN AREAS
The Constitution provides for Urban Areas and Cities in Section 184 (Box 4.1). The Constitutional provisions are embedded under the provision providing for devolved government. This implies that the cities and urban areas, except for the city of Nairobi and Mombasa will operate under County Governments. Both the City of Nairobi and Mombasa are also Counties and will directly relate to the national government, although Nairobi as a Capital City has a higher status. This raises questions on other larger cities which are currently not necessarily Counties and those that will in future grow and attain the status of the two cities. While this paper cannot comprehensively provide direction on this matter, policy and legal provisions as stated in Section 184 of the Constitution will provide direction as suggested in the recommendation section of this chapter. The Fourth schedule of the Constitution gives County Governments some functions previously undertaken by LAs. This requires harmonization and decision on further decentralization of functions, including policy decisions on whether de-concentrated units should be administrative, or both political and administrative. Public hearings across the country revealed disgust of citizens with electoral politics, which implies that citizens prefer an administrative system which serves their interest, in particular service delivery with minimal politics.
4.4.1
Cities and Urban Areas in Development
Urban areas are engines of economic growth and key to innovation, and any constitutional dispensation has to provide for them. They are places where workers, capital, institutions and infrastructure come together to provide the foundation for economic activity. The concentration or proximity of people and firms in cities increases social and economic interaction and results in exchange of ideas of people
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working in different fields in the same location. This exchange of ideas is essential for innovation. Cities are important local government entities, driving local economic development. Their liveability, including BOX 4.1: CONSTITUTIONAL PROVISIONS FOR CITIES availability of skilled AND URBAN AREAS labour, infrastructure and services, is 184 (1) National legislation shall provide for the governance and determined by the management of urban areas and cities and shall, in particular (a) Establish criteria for classifying areas as urban areas type of governance and cities, structure put in place. The governance of urban areas and cities, and (c) Provide for participation by residents in the governance structure and of urban areas and cities characteristic such as 2. National legislation contemplated in clause (1) may nature of services include mechanisms for identifying categories of urban areas available, the revenue and cities, and for their governance. sources, size and 185 (2) provides that county assemblies may make laws that are necessary for, or incidental to, the effective performance of the location relative to functions and exercise of powers of the county government state or country as a under the Fourth Schedule. whole, the nature of 187 (2) provides that if a function or power is transferred from a intergovernmental government at one level to a government at the other level relations, the history Arrangements shall be put in place to ensure that the resources necessary for the performance of the function of cooperation with or exercise of the power are transferred; and neighbouring Constitutional responsibility for the performance of the municipalities function or exercise of the power shall remain with the determine whether a government to which it is assigned by the Fourth Schedule. city attract population and innovation (Slack 2003). In 1999, in recognition of the importance of cities and urban areas, the UNHABITAT launched a global campaign on urban governance in support of the implementation of Habitat agenda on sustainable human settlements in an urbanizing world. The campaign includes applying the principles of good governance in the context of challenges and realities facing cities, as well as acknowledging the diversity of cities in terms of individual histories, types of governance and their linkages across the globe. In Kenya, there has been rapid urbanization since 1948 when the first census was conducted. While in 1962, only one out of every twelve Kenyans lived in urban areas, by 1999, the urban population had reached 34.5per cent or approximately 10 million people. It is expected that by 2015, urbanization will have reached a national percentage of 44.5.This urban population is destined for a 54 per cent mark, or 23.6
(b) Establish the principles of governance and management
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million inhabitants in the year 2030. Overall, the rapid increase in the rate of urbanization has seen growth in the major urban centres of Kenya, and the country is expected to continue urbanising. The urban sector in Kenya contributes about 70 per cent of the GDP, constituting a very significant part of the economy. The local authorities and especially the cities and urban areas are important engines of growth and centres of development providing cultural, educational, management, research, commerce and political services. They also offer employment, health facilities and boost the countrys economy (UN-HABITAT, 2004). For instance, the City Council of Nairobi (CCN) produces more than half of Kenyas GDP. Urban growth in Kenya has not been managed by any policy, and both cities and urban areas have operated under the Local Government Act Cap 265. The Act provides a semi-autonomous status for LAs, with the central government wielding enormous powers over LAs without any minimal policy direction. This has retarded the development of LAs, and attempts to develop an urban policy and review the Local Government Act have been caught up in a new constitutional dispensation, requiring a fresh look in line with Constitutional provisions. Cities and urban areas in Kenya face a number of challenges, including outdated legal and regulatory framework, lack of urban development policy, inability to efficiently provide services and poor governance. Prior to 2003 when the NARC government took power, and began embracing New Public Management Reforms, many urban areas had reached a breaking point. They could hardly provide services as mandated under the LA Act. Coverage level of services such as solid waste, health and housing was low and deplorable, with many unable to meet demand for a range of services In spite of lack of policy on urban development, various policies and government strategies including the Vision 2030 acknowledge the importance of urban areas. These urban areas are part of local government system in Kenya and it is relevant to understand their context within Kenya.
4.4.2
Context of Cities and Urban Areas in Kenya
Cities and urban areas in Kenya have been operating under the Local Authority Act Cap 265, governing the 175 Local Authorities (LAs). The LAs fall under four categories, namely: City council of Nairobi, Municipalities, Towns and County Councils. The latter two are largely rural in nature and provide minimal basic services such as markets, parks and gardens; sanitary inspection and refuse disposal; burial grounds and crematoria; fire services and brigade; public transport and social welfare services; basic environmental services; roads and drains, water supply, and basic planning and development control among others. Other services are offered by line ministries which have administrative structures originating from the central government, through provincial to district administrative system. Page | 49
The City Council of Nairobi and other larger Municipalities such as Mombasa and Kisumu undertake all the above services and other higher level functions such as health, education and engineering works. All LAs are semi-autonomous and answerable to the office of the Deputy Prime Minister and Ministry of Local Government, previously Ministry of Local Government. Their semi-autonomous status has often been a bottleneck to efficient operations due to heavy reliance on central government both for direction and resources which are often insufficient for BOX 4.2: CLASSIFICATION OF LOCAL effective service delivery. The AUTHORITIES acknowledgement of this challenge has been addressed Topographical and physical characteristics of the through local government area concerned; Distribution, size and density of the population of reform programmes, in the area concerned; particular a fiscal transfer of a Existing boundaries of local authorities particularly resource envelop from the the area/coverage of the human settlement the maximum expenditure the local authority is able to central government under the support; name of Local Authority Existing revenue collection and potential land use, including industrial, business, commercial, Transfer Fund (LATF). The residential and environmental planning; fund was established in 1999 to Economy, functions, efficacy and capacity to provide funds to supplement render services within the area concerned; Development potential in relation to infrastructure, LA revenues to be used in three communication and transport facilities, availability key areas: improvement of of sufficient land for further development according to the spatial needs of residents of the service delivery; improvement area concerned; of financial management and Integrated urban economy as dictated by commercial, industrial and residential dynamics of accountability; and elimination the area concerned; and of outstanding debts
4.5
CLASSIFICATION OF CITIES AND URBAN AREAS
Extent to which comprehensive urban plans have been prepared for the development and management of the said subject areas.
Currently Kenya has a number of urban areas classified as City, Municipalities and Town Councils, but there is no clarity on the criteria used for determining these entities. Prior to the era of good governance and New Public Management, most of the urban authorities got their status through political proclamations and have not been able to deliver services to their residents. There are no universal criteria for classifying cities and urban areas that are globally accepted. Countries tend to follow their own unique classification logic depending on local circumstances and the historical evolution of both their urban and local government systems.
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Towns are often classified based on their economic capabilities. They are viewed as centres of business with population a concentration. In Kenya, there has been no progressive way of assigning city status to towns that have exceeded the thresholds set by many cities across the globe. Municipalities are levels of local governments such as towns that are governed by locally elected officials. Other concepts such as borough are used for self-governing towns, and municipalities. The mandates of the boroughs vary across jurisdictions. In London, boroughs are subdivision of the cities. A majority of states that have a devolved system have clearly defined the roles and relationships between the levels of government in legislation. For instance, in the case of London, BOX 4.3: PUBLIC VIEWS ON FACTORS FOR CONSIDERATION IN ESTABLISHING the relationship between the CITIES AND URBAN AREAS London Boroughs and the Greater London Authority has Sound tax base, and ability to attract external been set out in legislation. The funding, Constitution also provides for Population of at least 350,000 inhabitants in a built area, areas where the union, the states, Development level, including level of and the federal district have the economic growth and industrialization, per power to legislate concurrently. capita income, vibrant number of businesses, This includes tax and budget, Long term planning, in line with national development plan, education and culture, and Investment climate, including level of judicial proceedings. In other infrastructure development, quality of territories, the boroughs do not transport, water and sanitation, health, safety give any additional powers to and security and quality of schools, the council or inhabitants of a Administrative facilities with employees conversant and applying ICT in district. In Kenya an attempt to classify LAs has been done in Section 6 of the Draft Local Government Bill 2009 (Box 4.2). The Draft provides the following elements for classifying Local authorities as town, county, municipal city and metropolitan councils:
communication and development, and Topographical features
4.5.1
Capital City and County of Nairobi
The City Council of Nairobi (CCN) produces more than half of Kenyas GDP, it is important that Nairobi, being a primate city and seat of government and the countrys capital city, be given due consideration in legislation to promote its further economic growth, international status, planning and management. Section 200 Sub Section 2 (a) of the Kenya Constitution 2010 allows provision to be made with respect to the governance of the Capital city, other cities and urban areas.
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Although the Constitution does not mention Nairobi, it can be assumed, that the Capital city of Kenya is Nairobi. In addition, Article 184 (1) also provides for enactment of legislation for governance and management of urban areas and cities as already stated. During public hearings, the public expressed the need for cities to have long-term plans anchored on national plans such as the Vision 2030. They emphasized that `proper long term planning in all developing towns should be put in place before any change of status depending on how fast an area is developing. There were many other factors which the public considered important for establishing and classifying cities (Box 4.3).
4.5.2
Conferring of City Status
According to article 23 of the Draft Local Government Bill (2009), the minister may, on the recommendation of the Advisory Commission, confer City status onto a municipality if: a. it has notable features of historical importance or has regional, national or international significance; and b. demonstratesi. a positive contribution to the economic development of the country; ii. proper management of its financial resources; iii. efficient and effective delivery of services to its residents; iv. an effective programme of environmental conservation within its area; v. active participation by its residents in the management of its affairs; vi. existing and potential land use, including industrial, business, commercial, residential and environmental planning; vii. availability of infrastructural facilities, including but not limited to roads, street lighting, markets, and fire stations with capacity for disaster management; viii. availability of a functional sewerage systems in its area of jurisdiction; ix. economy, functionality, efficiency and financial viability in its administration; and x. the ability to render services, including healthcare, education, waste management and environmental conservation within its area; and c. Presents, at a minimum, a five-year integrated development plan25 While some of the above criteria can be used for classifying cities and urban areas, the powers given to the Minister is not in line with the spirit of the Kenya Constitution 2010, and there is need to come up with a mechanism/body for designation of cities and urban areas. Once a criterion is developed, the body can reassess the existing cities and urban areas and reclassify them accordingly. In terms of procedure, urban areas which qualify can apply to the established body for status upgrading. Most of
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the variables highlighted by the Draft Bill are not different from those highlighted in the Counties during Public hearings. The public emphasized the need to have at least one urban or municipality in each county. This preference was demonstrated in the existing tension around where County BOX 4.3: PROPOSED CRITERIA FOR CLASSIFYING URBAN AREAS AND CITIES headquarters should be located. Such location was associated to urban development and by Three categories of urban areas, all referred to as extension economic growth Municipalities and differentiated by population and services provided can be categorised; expected to occur, once an area i. Municipalities with at least 300,000 people and is designated as city or urban. above While experience shows that ii. Municipalities with between 50.000 299,000 iii. Municipalities with between 30,000 49,999 cities and urban areas can be Built area with high population density, reporting to either County or Availability of public land National government, most Integrated development Plan, Infrastructure and basic services, citizens preferred Vibrant business environment, governors/managers of cities to Sound financial base, report to respective County Note: Other relevant variables may be included in the above governors. Kenya Constitution criteria as negotiated with the body charged with upgrading 2010 provides for two levels of and further classification. The classification further assumes that all areas which do not have the above characteristics are government, National and rural Municipalities County, with cities and urban areas operating under Counties as stated during the public hearings. In order to ensure a smooth operation among the different levels of governance process, citizens suggested establishment of a mechanism of coordination and communication between the various entities within the County and the County Governor. A few others argued that, the LAs should not be disbanded but should exist as agents of respective Counties receiving administrative instructions from County Governments. Most of these inputs can be integrated in designing a legal framework by the County since they do not contradict the Constitution which provides for further decentralization and operates on the principles of cooperation and consultation. The citizens also noted that current cities and municipalities should be retained and thereafter new criteria can be used. This public view might be problematic if the Counties decide to reassess some of the cities and urban areas that currently exist and do not have the characteristics highlighted by citizens and do not qualify under classification criteria. In order to assist in addressing this challenge, criteria for
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classifying urban areas and cities as required in Section 184 Sub Section 1 (a) is proposed (Box 4.4).
4.6
CHALLENGES FOR FORTY SEVEN COUNTIES
This sub section begins by providing an overview of local governance in Kenya in order to set up a framework for assessing the challenges which are likely to face the 47 Counties established by the Kenya Constitution 2010. The establishment of the two levels of devolution is expected to pose a number of challenges besides the issues of transfer of functions and related revenue allocation. These challenges include structural overlaps, cross county planning and service delivery, capacity building, and economies of scale as discussed in this sub section.
4.6.1
Overview
The Constitution makers reference to the existing Local Authorities (LAs), which include 67 County Councils, 62 towns, and 45 municipal councils and the City of Nairobi in schedule six, part 4, Section 18 under devolved government. It is noted that all LAs established under the Local Government Act (Cap 265) existing immediately before the effective date shall continue to exist subject to any law that might be enacted. The law is likely to be the Devolution Act and policy expected to provide for further decentralization in both urban and rural parts of Counties. The same law should also provide direction for rationalization and fit of other prevailing governance structures operating at County level, including Provincial Administration. The many governance structures, including LAs, Provincial Administration, line Ministries, Regional authorities and various programmes are all embedded in Counties, and must conform to the Constitutional provisions. This requires functional rationalisation and fit, giving policy directions and legal provisions for efficient service delivery and management. Using this approach some of the service functions of County Governments through the principle of subsidiarity will be delegated to decentralized units, including cities, urban areas, and specialized agencies and corporations.
4.6.2
Structural Overlaps
As highlighted in the previous sub sections, there will be some sub units of counties which will overlap with each other, for example cities and urban areas located within counties. Since management of cities and urban areas differ from management of rural areas, there is need to plan for this as suggested in the sub section dealing with cities and urban areas. In particular, transfer of functions and allocation of resources has to take into consideration management of the three types of municipalities proposed. In some cases municipal services will cut across counties, and inter-county service provision mechanisms will have to be designed for effective service delivery.
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4.6.3
Capacity Building
Kenya has embraced devolution inheriting a weak local governance framework with many parallel systems at the local level, poor infrastructure and inadequate facilities. While more focus has been on the LAs and their capacity, including weak governance framework, the Kenya local governance gamut goes beyond Las and embraces the role of the Provincial Administration, which must be restructured to accord with the requirements of devolved government. There are also line ministries which are expected to provide services to citizens but can hardly cope with the massive requirements of service provision due to both inadequate resources, including shortage of staff. Some of this pool of human resource will be useful in starting off Counties once issues relating to terms and conditions of work are clarified. The other entity on the ground is the Constituency which until recently had no management framework, except the Members of Parliament (MP), councillors and partisan committees. In recent years some coordinators have been posted to manage the Constituency Development Fund (CDF). The role of this team will have to be redefined depending on the structure adopted as provided by National policy and Devolved Government legislation. Irrespective of County governance structure adopted, there is need for capacity assessment, and training. While one can argue that Kenya has a pool of human resource, it should be acknowledged that the Kenya Constitution 2010 requires new thinking, including planning and engagement with citizens which will not be familiar to even those who have been working at the local level for many years. An ideal case requires an institution to be designated to begin undertaking the exercise prior to rolling out the Counties. This should continue in Counties established through both in-service and residential depending on respective county needs. Training institutions could be at national, cross county (regional) or county level.
4.6.4
Cross County Planning and Development
Effective local economic development requires planning and management of a number of development activities across sectors and counties. The importance of this factor came out during public hearing with many Counties beginning to close up on their resources, or contending that fees have to be charged for use of resources originating from their Counties. One example of such a resource is water serving major cities with sources outside respective cities, and by extension Counties. Planning is aimed at achieving order, optimal and sustainable spatial distribution by stirring up regional competitiveness to enable full resource exploitation. However planning has faced several challenges, including functional disconnect between the plan preparatory authorities and implementing agencies; lack of appropriate technical and institutional capacity of Local Authorities; inadequate human resources; absence of broad based consultation; and effective coordinating
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framework for preparation and implementation of plans and enforcement. During public consultations the public highlighted some of the considerations which should be made while planning in Counties. Availability of natural resources, land and population were among the factors highlighted (Box 4.5) Effective cross county planning and service delivery requires cooperation and consultation mechanism as provided for in Article 6(2) of the Constitution. BOX 4.5: SUBMISSIONS ON FACTORS FOR This requires a national CONSIDERATION IN PLANNING WITHIN legislation and policy that COUNTIES will ensure that effective Availability of competent human resource participation and Availability of natural resources, land and management of cross population density, cutting resources such as Availability of infrastructure, including roads and ICT water, roads and Existence of viable plans for executing functions electricity are planned in On-going projects, an integrated manner. Environment, climatic conditions, geographical features in the area, Section 189 (2) provides Cost and service delivery, the legal framework for Economic disparities, marginalized groups, the cooperation across gender equity, Counties noting that Presence of squatters Poverty index, `different governments at Urbanisation, the County level, shall co Security issues in an area, operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and authorities. Legal basis for cross county planning services are implied in a number of Constitutional provisions. Article 66 (1) provides for the regulation of the use of any land, or any interest in or right over land in the interest of defence, public safety, public order, public morality, public health or land use planning. Articles 66 (2) gives powers to parliament to enact legislation ensuring that investments in property benefit local communities and their economies and Article 69 (a) and (b) obligates the state to ensure sustainable exploitation, utilization management and conservation of the environment and natural resources and ensure equitable sharing of the accruing benefits. The aspect of ensuring equitable sharing of accruing benefits is useful for cross county resources and services such as forests and water resources. The Constitution in Article 69 (b) further obligates the state to work to achieve and maintain a forest cover of at least 10 per cent of the land area to Kenya. This will require cooperation Page | 56
among counties, including putting in place an appropriate legal framework to facilitate and regulate forest reserves including urban forest cover. An example can be drawn from Karura and Ngong forests which cut across two Counties. Many other cases of forests and others resources including water and transport networks exist in other Counties. Water is a good example of a service which is often provided under the cross county concept. Currently, the water Act provides a framework for the management and provision of the water services. Under the Act the Water Boards manage the water services through policies and regulation, while actual delivery to consumers is done by the water companies owned by LAs as provided by the law. The same framework can be used where two counties or more come together to provide a service through a common board or company. In such cases a cross county company can provide a common service. Alternatively, a national legislation can provide a framework for a board to provide policy framework and regulation. The membership of such boards should include representative of the counties and national government. Apart from water other cross county sector and services include: transport, tourism, electricity, markets, housing, and energy. As highlighted in the case of water, planning for transport, housing, and energy is better done by specialized boards for and on behalf of the affected counties. This situation becomes more necessary when specific service is being consumed across counties or cities. There is need to establish long term sustainable framework for social, territorial, economic development for cross cutting resources and services. The role of such plan will be to improve inter county development systems with due considerations to each County and related environment. For example, land use planning and linkages with environmental protection can be used to coordinate the spatial impacts and other sectoral policies for an economic distribution of a regional or cross county services.
4.6.5
Economies of Scale
Section 189 (1) notes that cross county cooperation ensures and enhances articulation and implementation of national government policy. The second provision (2) provides for cooperation for effective service delivery. The provision states that governments at county level are supposed to cooperate and create joint authorities and committees with the aim of performance of certain functions. The joint performance of functions has cost benefit effects, including economies of scale. One of the principle considerations for intergovernmental relations is economies of scale that accrue when providing trunk/bulk infrastructural services. This affects provision of water, roads, bridges, power among others. This implies that the production, provision and transmission of some services would transcend county boundaries and have to be negotiated appropriately with the objective of enhancing Page | 57
capacity and providing services efficiently and cost effectively. Citizens across counties require services as a basic right as contained in the Bill of Rights. However, some of such services may not be available within their counties. To provide such services, it is necessary that resource mobilization is done collectively in order to efficiently produce and deliver the services. In line with the discussion in this section, there is need for policy direction on how services which cut across Counties will be provided and managed. While this option could be left to the discretion of the County governments, it will be useful for national government to provide guiding principles to assist counties in making decisions. This should also include providing an appropriate framework for preparation of and implementation of integrated national, regional and local area land use plans that meets needs of stakeholders across counties. Further, there is need for facilitation of appropriate institutional and technical capacity building initiatives for accelerating plan implementation at all levels.
4.7
POLICY AND LEGAL GAPS
The discussion on levels of governance, cities and urban areas reveals a number of policy and legal gaps which have to be addressed if the Counties are to effectively and efficiently operate. Areas which need to be addressed include: levels of further decentralization; reporting units and mechanisms; relationship between Counties and Constituencies; degree of autonomy in cities, municipalities and towns; and direction on graduation of urban areas to higher level of cities. A number of these gaps can be filled by developing a Municipal Bill outlining how cities and urban municipalities will operate in a devolved government. Figure 4.1 shows a proposal for decentralized County structure, while figure 4.2 further illustrates how the levels of governance look like.
4.7.1
Areas for Further Decentralisation
The first level shall be a Sub-County composed of constituency/districts. These can be located in either urban or rural areas. The urban municipalities can be categorized into three, those with at least 300,000 (large) and above; between 50,000 and 299,999 (medium) and those with between 30,000 and 49,999 (small). The first two categories will provide similar services depending on their capacity, while the last category can provide minimal services as delegated by the County government. The rural units of the County will have different forms of service delivery and governance. In all the options, participation of citizens is mandatory and can, either be direct through County representatives at the local level providing an oversight, and/or through quarterly, biannual and sectoral participation of citizens.
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Three options are proposed for the governance of Large and Medium Municipal areas 1. Directly Elected mayor through universal suffrage with semi-autonomous legal framework 2. Mayor elected by electoral college of County Assembly representatives; 3. County Assembly representatives appoint a City manager to manage the Municipal area For smaller Municipal areas two options are proposed: 1. County appointed manager with County Assembly Representatives from respective wards and inclusive citizen representation playing oversight role 2. Administrator with inclusive citizen representatives playing an oversight role For Rural Areas as well, two options are proposed: 1. County appointed manager with County Assembly Representatives from respective wards and inclusive citizen representation playing oversight role 2. County appointed manager with County Assembly representatives from respective wards playing an oversight role Figure 4.2 proposes an administrative structure specific to large and medium cities. Figure: 4.2 Large or Medium City/Municipal Council (Sub-County Level 1)
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The political and administrative structure of the City, County and Capital City of Nairobi will be different in line with Article 200 (a) and figure 4.3 is proposed for the governance of the capital city. Figure 4.3: Administrative Structure for the Capital City, Nairobi
For the City Council of Nairobi, where the county and City boundaries correspond, one option would be to combine the functions of Mayor and Governor and elections be held as stipulated in the constitution and other applicable legislation. This would reduce the conflicts that may arise with overlapping political structures. Electoral wards once established will be the basic unit for political representation. It is expected that the City/County will have Municipal Areas to be managed in a unique manner which responds to service delivery requirements. The management of such areas is proposed below.
Municipal Management
City Manager and Technical team appointed competitively by County Government City Departments established to respond to city service needs. However, there should be recommendation of critical Departments that should be mandatory
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Service regions/Divisions to be established composed of a number of electoral wards. Service regions are the basic units for development planning and local service delivery. Municipal council to provide mechanisms for citizen participation at the service regions/divisions Performance management system to be adopted to ensure institutional and staff accountability. This will include an M&E and reporting framework providing feedback to citizens.
Role of Service Regions/Divisions

Development of Divisions development plans through participation. These plans are then integrated into municipal plans. Frameworks for engagement that recognise principles of efficiency, inclusive and effective service delivery Manage service provisions in respective regions Respond to resident service queries Coordinate area security and response mechanisms
Service Delivery Models

Guiding principles for designing service delivery mechanisms include efficiency, effectiveness, inclusivity and participation in the service delivery cycle as highlighted in principles of governance and service delivery. Cities and urban areas, referred to as large, medium and small municipal areas could adopt a number of options including the ones highlighted below: Utility companies: to be in charge of water reticulation, electricity distribution and municipal law enforcement. This can be companies, fully owned by the urban municipal. This will allow the urban municipal to generate revenue, while providing services efficiently and at affordable cost to the public (user fee) Agency: These would be in charge of social infrastructure and services such as Roads, Environment (including Parks and recreation areas), tourism and Cultural promotion, Health, emergency services, etc. These agencies, fully financed by the urban municipal, will ensure that public goods are available and accessible to all, at minimal cost. Service Board: may be formed to cater for services such as water, roads, among others, whose production and distribution transcend county boundaries. Service Boards will work closely with national agencies responsible for respective services, for example water, roads, electricity, policy coordination, service standards, and regulations.
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Enterprises: These may be formed to commercialise the provision of services with a social function and would be structured as individual companies, but will focus on achieving reduced subsidies in delivery of their services.
Each of the units of governance illustrated in figure 4.2 and 4.3 will require different form of management with regulations governing their operations. An example of a similar management system is in United Kingdom (UK). In the kingdom, the County Councils, Districts and Boroughs all have different managerial systems, including County Councils being responsible for strategic-level functions including education, social services and emergency planning. They also have established executives to implement the broad budget and policy framework adopted by their full Council. The boroughs on the other hand, are responsible for running all the local services in their areas of jurisdiction such as schools and waste management. In India, the Constitution identifies 29 matters over which rural local governments may have jurisdiction (Constitution of India, Eleventh Schedule (1950 - amendment of 1993). Relationship between Counties and Constituencies should also be defined to avoid conflicts which currently exist. Elaborate other conflict area, especially the conflicts which may arise setting up a motion which is discussed in the functional and finance sub sections. Give other factors and conflict; CDF is not the only development fund which require discussion. During public hearings there were heated debates on whether any resources should be channelled to any other entity within a county, other than the County Government. Constituency Development Fund (CDF) was a common example. The CDF was proposed and negotiated by Members of Parliament (MPs). However, there is need to provide policy direction on all funds going to the Counties, including resources channelled to constituencies within counties. Although there were mixed reactions on elected leaders, with many citizens having problems with how MPs manage CDF resources, a significant number still preferred cities and urban areas to be governed by elected leaders, including having mayors elected by all voters within a city or urban jurisdiction. There was consensus that all elected leaders should report to the County Government, and should restrict their role to policy making. Reporting to County Governor is expected to address the challenge the LAs have been facing in reporting and dealing with the central government. Similarly, theres need for decision on the employees of Local Authorities which will cease to exist immediately the County governments are elected. Besides, the counties having constitutional mandate to define their own structures, among other discretional powers provided for by the constitution, there is need to for decision on personnel of Local authorities. The issue of some autonomy for sub units of County Governments is going to be a major challenge in rolling out the Counties. Embedded in Counties are entities that have been operating with some autonomy such as the Local Authorities, and line
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ministries which have totally different reporting mechanisms. Some of the considerations would be for counties to define levels and nature of de-concentration to lower levels, whereby the counties retain overall supervision over the sub-county units, based on the principle of subsidiarity. While it is acknowledged that most of these entities will cease to exist once the County Governments are established, there is need to provide policy direction for the interim period taking into consideration Constitutional provisions, and the status which these entities have held in the previous jurisdiction and the powers they wield on the ground. Their power is too rooted, and some of the positions held by the public which contradict the provisions of the Constitution were partly influenced by this fact. The issue of graduation to a higher level status also requires attention. Depending on the nature of further decentralization, if a threshold is set, especially for urban areas, there will be need to provide policy direction on what happens once an entity reaches a threshold. Kenya is coming from a context of hierarchical thinking and operations, and unless policy and regulatory measures are put in place, status conflicts may be too many to manage. This was demonstrated during public hearings in the competition on where County head-quarters should be located. While this was not one of the concerns of the TORs of the Task Force on Devolved Government, the public in most Counties pushed the issues into discussions, showing the importance they place on the issues. National policy direction and legislation on these issues by the National Government followed by relevant Acts developed by respective Counties will assist in providing direction, and cushioning the Counties from unnecessarily challenges during infant years. One option is to have both policy and national legislation which guides County governments and ensures a threshold of good practices across counties. The other option is to leave Counties to come up with their own policy directions and legislation depending on the decision of respective County Assemblies. Consideration should be given to development of model laws based on national policies, which counties would have the discretion to adopt. It is prudent to design administrative decentralized units using a functional approach in line with the size and growth of cities and urban areas. Such entities can be managed by qualified personnel recruited either through the city authority public service in cases of cities which double up as Counties, or by Counties for cities and urban areas which operate under County jurisdictions.
4.7.2
Policy Options and Recommendations
The Constitution provides for further decentralization without specification, although Section 176 (2) of the Constitution provides à decentralization of functions and provision of services to the extent that is efficient and practicable. This leaves the County Governments to determine what is efficient and practicable, an option which
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might result in different interpretations, although this should be done in line with the spirit and principles in the Constitution. There is more clarity on cities and urban areas since a provision is provided for through National legislation. However the Constitution does not provide how these entities should be structured for effective service delivery and management of services. It is therefore recommended that: (1) National Guiding Principles for Further Decentralization be developed
The principles should include efficiency, effectiveness, accountability, and equity in service delivery. Further, the objects of devolution highlighted in Section 174 and principles of devolved government outlined in Section 175, in particular effective and inclusive delivery of services must be ensured. Ensuring Section 174 (c), by giving powers of self-governance to the people and enhancing the participation of the people in the exercise of the powers of the state and in making decisions affecting them is paramount. The latter can be done through representation and participation and ensuring that resources follow functions in all plans of the County. The guiding principles anticipated in this section should allow room for Counties to be innovative, competitive and efficient in service delivery. (2) National Cities and Urban Areas Legislation be developed
Components of this legislation should include Definitions (Sub-County, cities, urban, Municipal, Service Boards, etc) Structure of governance Classification of municipals Types of Municipals Overlap of jurisdiction and service delivery Criteria for Municipal graduation Functional Responsibilities Nature of staffing Financing Powers and Privileges Service delivery models
The rationale for setting principles and having legislation is based on a number of factors, in particular the likelihood of Counties opting to take different measures, including others deciding to re-centralize at County level. Should this happen the whole principle of devolution will be lost and communities which have suffered in the past will continue to suffer. Embedded in centralization is the control of County resources, without further decentralization County communities will not have the opportunity of ensuring the principles of decentralization which include efficiency, effectiveness, accountability and equity. Further, Kenya is coming from a history Page | 64
where there have been many parallel governance institutions and centres of resource allocation which is costly and unless some direction is provided this is likely to continue. The Constitution does not give independent powers beyond the Counties, including municipalities and municipal authorities. This can be addressed through the suggested legislation. This is necessarily because whatever powers and responsibilities are delegated to decentralized entities by Counties can be changed, removed or added at the countys governments discretion. The National policy and legislation will provide a threshold for all Counties and give them room for further legislation depending on County needs determined by the County Assembly in consultation with residents. At the County level, Counties should operate under a Devolved Government Act which will need to be operationalised by County policies and legislations. For example legislation securing decentralized entities, including cities and urban areas including providing for a Department of Municipal Affairs. The purposes of the Act could include: Giving broad authority to Municipals, including authority to pass by-laws, Respecting the right of councils to govern municipalities in whatever way they consider appropriate within the jurisdiction given to them, Enhancing the ability of councils to respond to present and future issues in their municipalities, Recognizing that the functions of the municipality including: o Ensuring effective and inclusive governance o Providing services and facilitating other things that are, in the opinion of the council, necessary or desirable for the municipality o Developing and maintaining safe and viable communities
4.8
CONCLUSIONS
This chapter has discussed levels and units of devolved government at the County level and made proposals for further discussions. Below is a summary and conclusions on key areas of focus, which include policy, legislation, governance, restructuring and outstanding issues.
4.8.1
Policy
There is need to develop National guiding principles for further decentralization in all County Governments. The guiding principles will assist counties in making decisions, and could include directions on: Urban development
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Whether further decentralised units should be administrative, or both political and administrative Funding of further decentralised units Training in counties, including prior to rolling out the Counties An appropriate framework for preparation of and implementation of integrated national, regional and local area land use plans, that meets needs of stakeholders across counties. Mechanisms for facilitation of appropriate institutional and technical capacity building initiatives for accelerating plan implementation at all levels of further decentralisation. Financial management of all funds going to the Counties. Establishment of long term sustainable framework for social, territorial, economic development for cross cutting resources and services. Long term planning in counties including in further decentralised entities, especially in developing areas such as small towns and rural areas Cross county planning framework and regulation Relationship between Counties and Constituencies should also be defined to avoid conflicts which currently exist. Effective participation and management of cross cutting resources
4.8.2
Legislation
Effective implementation of the Kenya Constitution 2010 requires review of laws and policies in line with the Constitution and embedding participation in all laws and service delivery processes. This chapter has recommended three legislations: 1. Devolution Bill, 2011 2. National Cities and Urban Areas Bill, 2011 3. County Municipal Structure Bill, 2011 The Devolution Act and policy is expected to provide for further decentralization in both urban and rural parts of Counties among others. The same law should also provide direction for rationalization and fit of other prevailing governance structures operating at County level, including Provincial Administration and line Ministries. National Cities and Urban Areas Act should provide for classification, structures, management and relationship with decentralised units and the County. The County Municipal Act should provide a mechanism/body for designation of cities and urban areas. Once a criterion is developed, the body can reassess the existing cities and urban areas and reclassify them accordingly. In terms of procedure, urban areas which qualify can apply to the established body for status upgrading.
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4.8.3
Governance
Beyond the two levels of governments provided by the Constitution, the chapter has proposed three levels of further decentralisation: 1. Sub County level, which can be constituencies/districts. The Constituencies are already delineated, while the districts might have to be realigned. 2. Location/wards. These will go along the existing entities or realigned OUTSTANDING ISSUES WHICH locations/wards. REQUIRE FURTHER RESEARCH AND 3. Village/Sub locations DECISION Proposals are also made on governance of Municipal Areas, with separate proposals for Large and Medium Municipal Areas, Small Municipal Areas, cities which also double up as Counties and rural areas.
Whether we opt for Constituencies or districts as level 1 for further decentralisation serving as SubCounties and align districts accordingly; Determination of level 2 (locations or wards?) of further decentralisation Financing of further decentralised units Challenges of cross county services Operation of Municipal Areas within cities/counties Situation of personnel in Local Authorities Engagement of National Administration in County Governments Operation of Counties during transition
Large and Municipal Areas

1.
Medium
Directly elected mayor through universal suffrage with semi-autonomous legal framework 2. Mayor elected by an electoral college of county representatives; 3. County representatives appoint a City manager to manage the Municipal area
Small Municipal Areas

1. County appointed manager with County Representatives and inclusive citizen representation playing oversight role 2. Administrator with County Representatives and inclusive citizen representatives playing an oversight role
Rural Areas
1. County appointed manager with County representatives and inclusive citizen representation playing oversight role 2. County appointed village coordinators and Assistant coordinators with County Assembly representatives and inclusive citizen representation playing an oversight role
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Cities/Counties
1. Governor to double up as the mayor 2. Competitively appointed Municipal managers and technical team 3. Formation of service delivery models (utility companies, agencies and service boards)
4.8.4
Restructuring
Institutions operating in the County will require restructuring in line with the Kenya Constitution 2010, in particular: 1. Provincial Administration and line Ministries personnel: Some of this pool of human resource with competence will be useful in starting off Counties once functions and issues relating to terms and conditions of work are clarified. 2. The role of the team that currently manages the Constituency Development Fund (CDF) will have to be redefined once the CDF law is reviewed in line with the Constitution and proposals in this chapter.
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5
5.1
STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE

INTRODUCTION
This chapter deals with the arrangement, composition and configuration of the county government. It spells out the working of the county government and provides the framework for the supporting institutions. It is apparent, on the face of it, that at the centre of the county government is the County Assembly and the County Executive. The former playing the legislative role, while the latter carries out the executive functions of the county. These responsibilities are undertaken within the wide purview of good governance. For this reason, it is considered appropriate to take a quick review of the tenets of good governance, particularly those spelt out in the Constitution of Kenya 2010 (CoK 2010).
5.2
PRINCIPLES OF GOVERNANCE
Governance describes the process of decision-making and the procedure by which decisions are implemented26. It is the dynamic interaction between people, structures, processes and traditions that supports the exercise of legitimate authority in provision of sound leadership, direction, oversight, and control of an entity. This is in order to ensure that its purpose is achieved, and that there is proper accounting for the conduct of its affairs, the use of its resources, and the results of its activities. In Kenya, the Constitution provides the foundation and cornerstone of governance. The Constitution defines the configuration, construction and composition of the tools necessary for the realization of good governance27. It entrenches the rule of law and ensures protection of the rights of citizens, maintaining order and limiting the power of government. Article 10 of the Constitution provides for national values and principles of good governance. These are: a. Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; b. Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; c. Good governance, integrity, transparency and accountability; and d. Sustainable development It is manifest that the Constitution affirms that sovereign power rests with the people, and this power can be exercised either directly, or through democratically elected representatives both at national and county level.
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This Article of the Constitution combines legal and definable principles such as the rule of law, the sharing, devolution of power and democracy with the more subjective concepts of patriotism and the participation of BOX 5.1: COUNTY VISIT SUBMISSIONS ON NATIONAL VALUES AND PRINCIPLES the people.
There is need for upholding the principles Patriotism as used in the of accountability and transparency for the Constitution involves the loyalty to purposes of good governance in the counties one's country. Patriots support, and Promote the principle of public are prepared to serve their participation as a way of enhancing country28. The principle also citizens participation in governance particularly the County governments represents an individuals Institute principle of social audits for connection to their countrys purposes of checks and balances for resources customs, traditions, pride in its Provide oversight structures and history, and devotion to its welfare. institutions in the counties for purposes of Kenyas rich history has involved good governance Entrench the principle of prudent peaks and valleys in the midst of a management of funds through the plethora of customs and traditions creation of checks and balances in the counties inherent to a nation with a varied cultural background borne of varied tribes and their unique cultures and languages. An ideal patriot serves the ultimate goal of nurturing the nation and instilling national pride within the country.
5.3
5.3.1
LEGISLATIVE ARM OF COUNTY GOVERNMENTS

Introduction
A cardinal principle underpinning devolution is the need to decentralize administrative, financial and political power to the local level in order to enhance the efficiency and effectiveness of government. A decentralized government allows greater citizen participation in local development and permits the government to respond quickly to local needs. Currently however, there does not appear to be a single coherent policy document that defines the intentions of decentralization in Kenya. This chapter seeks to define, explain and elaborate the arrangement, powers and functions of a County Assembly established under section 176 (1) of the Constitution. It also clarifies the relationship between the County Assembly and the County Executive on the one hand and that of the County Assembly and the National Government on the other.
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A County Assembly provides an opportunity for the exercise of a decentralized power structure away from the unitary system Kenya has practiced since independence. In this way Kenya is following in the footsteps of Malawi, Ghana, South Africa and Nigeria which practice different shades of decentralized governments.29 Figure 5.1: Structure of County Governments
The Constitution establishes a devolved government aimed at promoting democratic and accountable exercise of power,30 giving powers of self-governance to the people and enhancing the participation of the people in the exercise BOX 5.2: COUNTY VISIT SUBMISSIONS ON COUNTY of the powers of the ELECTORAL PROCESS State and in making County Government elections should be different from the decisions affecting national government to avoid the distortions or fraud them.31 In so doing the brought in by the political experts Constitution recognizes No direct party nominations the right of Nomination of Speaker by PSC Limit on budget for campaign communities to After nomination the list should be debated at County level manage their own Governor to get 50% plus 1 votes affairs and to enhance Majority of votes in at least half of the electoral wards their development.32 This is meant to
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promote social development and the provision of proximate, easily accessible services throughout Kenya33 and also enhance checks and balances and separation of powers.34 The objectives of devolution emphasize recognition of the fact that state power belongs to the people and is exercised on their behalf by elected representatives OUTSTANDING ISSUES acting through formal institutions. It is intended that devolved governments Whether the IEBC should conduct augment peoples participation in political party nominations governance and self-development and Whether the deputy speakers shall be based on democratic principles position ought to be a permanent or ad hoc position. and separation of powers.35 The Constitution provides that a County government shall consist of a County Assembly and a County Executive.36 County governments are providers of essential local services.
5.3.2
Composition, Qualifications and Election of County Assembly Members
The Constitution makes provision for the composition of the County Assembly. Under Article 177 of the Constitution, the County Assembly shall be composed of37 a. b. c. d. members elected by the registered voters of the wards, each ward constituting a single member constituency, the number of special seat members necessary to ensure that no more than two-thirds of the membership of the Assembly are of the same gender; the number of the marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament ; and The Speaker, who is an ex officio member.
5.3.3
Qualifications for Election as a Member of a County Assembly
Under Article 177(1) of the Constitution, a member of a County Assembly shall represent a ward. To qualify for election into a County Assembly a person must be a registered voter38 and is either nominated by a political party or is an independent candidate supported by at least five hundred registered voters in the ward concerned.39 The Constitution is silent on the question of whether or not a person must be a registered voter in the Ward in which they seek to be elected. Under Article 193 (1) (b) of the Constitution, a candidate for the position of County Assembly member must satisfy any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament. Under Chapter Six of the Constitution, certain leadership and integrity standards are required of any person Page | 72
aspiring to be a State officer. These prerequisites also attach to persons seeking the office of County Assembly Member. A candidate for BOX 5.3: COUNTY VISIT SUBMISSIONS ON PROPORTIONAL the office of County REPRESENTATION Assembly representative Lists should be developed by party grass roots leaders, with must be a person strict vetting of all interested candidates with special consideration of all vulnerable groups, without interference from manifesting personal party headquarters and then presented to the party for confirmation integrity, competence and Give the list of nomination before elections, so there is fairness suitability for that Make the lists public and if possible publicized. Vetting should be done for party nominated leaders position. They should Party branches give the names to the electoral commission Through the National Delegates Conference, each party will then possess the ability to act present the party list for presentation. This should be left to the political parties and their leaders to objectively and impartially determine. without prejudice on Follow the political parties act on developing the list, e.g. party members come up with a list account of nepotism, Guided by the party constitution, consider all the ethnic groups, interest groups, geographical locations and special communities favouritism or corruption. Each party to have its own nomination procedure A committee consisting of members of the public should vet the They must at all times be candidates IIEC should conduct elections of all political parties to ensure guided by a desire to fair representation and curb malpractices during party elections render a selfless service IIEC should do the nominations in only one day for all political parties based on public interest There should be a vetting committee at the County level and a further vetting by IIEC and then approval by the County and be disciplined and Assembly The National Elections Commission should ensure that every accountable to the public. The success of the functions of County Assemblies will largely depend on the capacity of the persons elected to sit in these institutions. The value of house debates, planning of development activities and overall supervision over the County Executive will be subject to the competence and ability of the County Assembly Members to understand their roles and to fully engage with the other County government institutions. A robust County Assembly shall provide the necessary checks and balances over the County Executive. Unless members of the County Assembly possess the right aptitude to undertake their duties the Assemblies
political partys manifesto has a structure or system of nomination clearly defined. Have party vetting committee at County level There should be an independent commission for making party lists Current way of nominations should be retained The lists should be proportional in all locations or sub locations according to the party strength When developing the lists, political parties should put in to consideration the marginalized and the minorities Parties give members a chance to take part in making this list women, etc. be included The National Elections Commission should ensure that every political partys manifesto has a structure or system of nomination clearly defined. Have party vetting committee at County level There should be an independent commission for making party lists Current way of nominations should be retained The lists should be proportional in all locations or sub locations according to the party strength When developing the lists, political parties should put in to consideration the marginalized and the minorities IIEC should conduct elections of all political parties to ensure fair representation and curb malpractices during party elections
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will not deliver and may be a weak cog in the implementation of the principles of devolution. During the public consultations, a variety of views have been expressed on the qualification, leadership qualities and experience of candidates for the office of County Assembly member. It is evident that the recommendations are as varied as the proposers. 5.3.3.1 Educational Qualifications
BOX 5.4: COUNTY VISIT SUBMISSIONS ON QUALIFICATIONS OF GOVERNOR, DEPUTY GOVERNOR, SENATOR, COUNTY ASSEMBLY MEMBERS For all the positions candidates must be: Adults of sound mind, respectable persons in society , registered voters in the County with high integrity, no criminal record, corruption free, and visionary, team player, not bankrupt and must declare their wealth, KACC cleared and God fearing. Continuous residency in the County 5/10 years/ native of the County Educated minimum form four level, competencies in English and Swahili, with managerial skills Senator: Should not have been a politician / Politician with Five years of experience Law Degree holders Should not have worked in the present government Elected by majority, not simple majority If the Senator is a man the governor should be a woman Ex-officio Member of County Assembly, to facilitate linkage Responsibilities/Accountability Regular consultations between Senate and Governor Legislate: Senators address the County Assembly and quarterly public consultations Attend Quarterly meetings with the County Executive County Speaker Legal background/a lawyer County Speaker should be elected by County Assembly Members Should be of opposite gender from the County Governor If Speaker is male then Deputy is female County Assembly Members: Resident, political knowledge and experience Serving Councillors 7% of County Assembly seats should be set aside for those with disabilities Proportional representation for marginalized groups in counties Participatory Governance/Accountability County government to get public views for projects County forums for airing complaints County hansard Feedback mechanisms Each County should establish a TV and FM radio stations broadcast County Assembly proceedings Removal The national government full powers to suspend non-functioning Counties Establish Commission to run the County government for the duration of suspension Intervene where this is misuse of resources, inability to perform
On educational qualifications, it has been suggested that a County Assembly member should have a minimum education standard of a primary school certificate. Others have proposed that the candidate should be a holder of a form four certificate, a diploma or a university degree. Clearly the suggestions have been coloured by the educational qualification of the person making the recommendation and the expectations and awareness of the objects of devolved government. Persons who have attained a higher educational status seem to think that a County Assembly member ought to be one who has made a substantial advancement in formal education. Further, those
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exposed to the objects of devolution and have high expectations on self-governance prefer stringent qualifications and experience. Strong views have been expressed on the need to recognize that if the position of County Assembly Member is to remain the basic unit of representative democracy then it should be available to all citizens notwithstanding lack of any meaningful formal educational attainments. The power of this argument is based on the fact that other leadership qualities may be possessed of persons who may not be literate or may not have advanced in formal education, and that participatory democracy should not be inhibited by prescriptions that deny the right to be to be a candidate. The debate as to whether there should be a set of minimum educational standards for a member of a County Assembly may need to be examined against previous attempts to legislate on this matter, Constitutional provisions and the demands on sustainable functioning of County Governments. In the Bomas draft report which informed the failed 2005 proposed Constitution, there was unanimity of public opinion that a member of a County Assembly should be literate; holding a minimum of a Form 4 Certificate. It is proposed that this should be upheld. It cannot be denied that educational progression has an impact on the quality of contributions that a member will make in the Assembly and therefore a parallel link with democracy and good governance. 5.3.3.2 Ethics and Integrity
The public paid considerable attention on the moral standing of County Assembly members. It was proposed that County Assembly members should be persons without a criminal record and who have earned the respect of the community. It is suggested that before receiving the Election Management Bodys go ahead to campaign candidates must be vetted by the Kenya Anti-Corruption Commission (KACC) and issued with a clearance certificate. They should possess a measure of management experience in their fields of expertise and should be residents of the County in which they seek to be elected. It does not appear that residency in the Ward which one seeks to represent is a critical consideration. There has however been a desire to restrict membership of the County Assembly to the age bracket between 25 to 45 years. This is a view that finds accommodation amongst the youth is, however, not shared by the elderly. The elderly members of the society would rather that there is no age limitation. 5.3.3.3 Election of County Assembly Members
The election of members of County Assemblies is governed by Article 90 of the Constitution which provides that provides that elections shall be on the basis of proportional representation through the use of party lists. The Independent Electoral and Boundaries Commission is mandated to supervise these elections. The choice of
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using the proportional representation methodology is to ensure that the views of a cross-section of society are represented unlike the winner takes all approach where the votes going to a losing candidate are simply lost along with the priorities and concerns of those voters. As a result of this approach there is a more diverse range of representation that allows more women, marginalized groups and minorities to be represented. The closed party list as is a variant of party-list proportional representation40 where voters vote for a party as opposed to an individual. Because closed party lists are impersonal, there is a higher degree of party proportionality which further ensures the objectives of women and the priorities of other marginalized groups and minorities and otherwise are not reliant on winning. Regardless of the direction the election takes, there will be some seats or representatives of these groups. Furthermore the list is predetermined thus ensuring that no political power struggles and conflicts ensue post-elections further compromising the position of marginalized groups. Figure 5.2: Elections and Electoral Processes at the County Level
The members in a closed party list are not faced with intra-party competition, which lessens the likelihood of negative campaigning and a governing environment driven by "politics of personality." As such it is the objectives of the party rather than the individual politicians that take priority thus ensuring the priorities of all voters are
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taken into account even if they do not represent the majority of voters as is the case with marginalized groups. A closed list also discourages manipulation of voters in favour of any one candidate thus even a less popular candidate that promotes less glamorous priorities such as minority rights has a voice. In a nation such as Kenya where the politics is largely personality oriented, this electoral strategy in the counties is sure to see a boost in the circumstances of marginalized groups. Voting for a closed list will discourage corruption from the party members as compared to the open where individuals use money in influencing voters. The parties will have to come up with a party list that is attractive enough, consisting of very competitive members in order to be able to win the confidence of voters. In operating a closed party list the minorities and marginalized communities rights will be protected unlike in the case where we have an open list the minority are marginalized and their voice does not prevail after voting for the party. The closed party list discourages the existence political parties on ethnic, racial, or religious lines in order to be able to have the good will of the diverse groups hence discouraging marginalization for some groups. The closed list representation is most preferred because it takes into account the interests of the voters and there are no changes that can be made on the party list after the elections have been done hence making the voters expectations as they voted for the party to prevail. The marginalized and minority groups are likely to receive proper representation at the County level by offering a candidate to a given party which they intend to vote for. It is proposed that legislation should provide the number of members of marginalised groups, including persons with disabilities and the youth who should be represented in the County Assembly. 5.3.3.4 Disqualification from Elections
The Constitution sets down certain specific criteria disqualifying persons from being election as members of a County Assembly.41 A State officer or other public officer, other than a member of a County Assembly, or a person who has within five years immediately before the date of an election served as a member of the Independent Electoral and Boundaries Commission, or is of unsound mind or an undischarged bankrupt cannot be elected as a member of a County Assembly. Further, a person who is serving a sentence of imprisonment of at least six months or has been indicted on an offence for misuse or abuse of a State office or public office or who has contravened the principles of leadership and integrity under Chapter Six of the Constitution is also ineligible. The legal disqualifications on account of being found guilty by a court of law do not hold unless all review or appeal options have been exhausted.42
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5.3.3.5
Election of the Speaker of the County Assembly
The Constitution provides that each County Assembly shall have a Speaker who will be elected by members from amongst persons who are not members of the Assembly.43 The Speaker shall preside over the sittings of the Assembly.44 In the absence of the Speaker the Assembly shall elect one from amongst themselves to preside.45 The Speakers office is endowed with considerable power as the holder also performs other administrative and procedural functions. Article 178(3) of the Constitution empowers Parliament to enact legislation providing for the election and removal from office of Speakers of County Assemblies. The Fifth Schedule to the Constitution requires this to be done within one year of the effective date. The election of the Speaker should not provide any challenge as the Constitution provides that on the first day of each new Assembly, each party represented in the County Assembly, or a coalition of parties should provide a candidate to be voted on. If only one candidate is nominated, they should be declared elected. If there is more than one candidate, and if no consensus is obtained, the members should vote and the candidate with the highest number of votes declared so elected. The Speaker assumes the position of the contact person for the Assembly and serves for the period of the Assembly. There is unanimity of thought that a County Speaker should be a person knowledgeable in law, well experienced and versed with the process of law making. 5.3.3.6 Management of Elections
Under Article 88 (4) of the constitution, the independent electoral and boundaries commission shall be responsible for the conduct and supervision of referenda and elections to any elective body or office established by the constitution or any Act of parliament. Subsequently the commission shall carry out all elections in the counties. Under article 90 the commission shall be responsible for determining which persons shall be nominated to the County Assembly by use of the party lists. In accordance with article 177 (1) (b) the commission shall undertake the computation of the special nomination seats necessary to ensure that no more than two thirds of one gender occupy the County Assembly.
5.3.4
Mandate and Functions of the County Assembly
The County Assembly is the voice of the residents of the County. The Assembly provides legitimacy for and accountability over the County Executive. The Assembly holds the legislative authority of the County. A well-structured and suitably managed County Assembly shall enact County laws,46 direct and limit the power of the Governor and the County Executive and, while respecting the principle of separation of powers, exercise an over-sight role in all the activities within the County.47 County
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legislation deals with matters that are within the jurisdiction of the County. It may be preferable that model legislation be developed on matters that are common to counties that wish to deal with similar issues. This will remove uncertainty and confusion on domestic County laws on comparable subject matter. A County Assembly is charged with the responsibility of receiving and approving plans and policies for the exploitation and management of the Countys resources and the development and management of the Countys infrastructure and institutions.48 In the discharge of its functions a County Assembly shall be bound by national and county legislation. For the better running of its functions a County Assembly may work through County Assembly Committees. 5.3.4.1 Other Functions of the County Assemblies
The Constitution makes room for the County Assembly to discharge other functions for instance enacting legislation that may set out the structure and framework for the better administration and management of County governments.49 Accordingly it is proposed that County Assemblies be given power to undertake other responsibilities including: Approval of and oversight on budgets Approval of development projects Supervision of other units within the County through political authority, guidance, and direction Monitoring the execution of projects under approved development plans and assesses and evaluates their impact on peoples development. Approving investment decisions. Approving of loans.
The County Assembly should be able to control and direct the economic activities within the County and ensure an equitable and acceptable development and the use of resources and to guarantee that taxation policies and levels do not inhibit trade and industry and yet be sufficiently flexible as to permit collection of adequate resources to advance the interests of the County. One of the traditional functions of the County Assembly will be the scrutiny of the County Executive Article 185 of the Constitution vests legislative authority in the County Assembly; this includes law making an oversight over the Executive Committee. This requires the enactment of laws that enable the County Assembly to exercise oversight functions through for instance scrutiny of the budget whereby the Executive is required to justify its policies. The law will be enacted to provide for a wide range of instruments to scrutinize the work of the County Executive and County Organs. This should include; budgetary
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powers of the County Assembly the submission of written questions to the County Executive which will require direct answers to County Members at questions-and answer session with the County Executive Committee members, debate on topical matters. 5.3.4.2 Proposed Duties of Members of the County Assembly
It is proposed that Parliament legislate on basic obligations for a member of a County Assembly. It is assumed that such legislation will enhance performance and accountability on the part of individual members of the County Assembly and on the County Assemblies as corporate entities. Presently members of Parliament and those serving in local authorities have no job description that directs or governs their vocation. This nebulous and unformulated environment leads to the exercise of labour on uncoordinated activities which do not contribute to public benefit. Public views suggest that a member of a County Assembly should at all times; Maintain close contact with and consult the people of their ward on issues to be discussed in the Assembly and to collate their views, opinions and proposals. Present the views, opinions and proposals of the people of his ward in the County Assembly Draw attention in general debate to national policies which are relevant to the debate in the house. Actively participate in the work of any sub-Committee appointed to Maintain frequent liaison with organized productive economic groupings in the County. Take part in community activities. Appraise the electorate on the workings of the Assembly and debates and decisions passed. Removal from Office
5.3.5
Once elected, a member of a County Assembly holds office for a period of five years unless the member dies50 or is absent from eight sittings of the Assembly without permission, in writing of the Speaker, and is unable to offer a satisfactory explanation for the absence.51 Such absence will necessitate that the member forfeits his seat. A member may also resign in writing,52 or may lose his seat if he resigns from the political party that sponsored his election,53 or if an independent, joins a political party.54
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Article 104 of the Constitution gives an electorate the right, to recall a Member of Parliament before the end of an electoral term subject to legislation on procedure. There is abundant public support to have this right extended to cover County Assembly representatives. It is suggested that legislation defines with sufficient exactitude the failures which would give rise to the exercise of this radical power. Perhaps a performance contract or a delivery scorecard would control arbitrary discretion in the employment of this clause making it available in the very limited occasions when a County representative is clearly underperforming and disadvantaging the electorate.
BOX 5.5: COUNTY VISIT SUBMISSIONS ON COUNTY WARDS Size: Baseline survey be done before deciding on the number of wards and whether the existing ones are sustainable, if weak they be merged. Local elders who understand the County be involved deciding on the size Size, not less than 500 square kilometres/20 square kilometres, 10 square kilometres, size of a location, split some to be the size of a sub location. Size to be guided by: economy, historical and geographical patterns 8 wards in every constituency Composition of 10 villages All existing wards should remain and more can be added Two locations to make one ward, a location and sublocations be made into wards Population: Population should not be used to determine wards A sub location for densely populated areas and a location for sparsely populated areas Should be divided according to a population quota to ensure efficient service delivery Should not consider population size in North Eastern due to low population occupying very big area Population of a ward not more than 1000 registered voters/5000-20,000 people in a ward Maximum population of a ward in urban centres must not be more than 50,000 people. For sparsely populated areas and 20000 people for densely populated areas, not less than 5000 registered voters The small wards to be merged to get 5,000 people Registered voters, 5,000 voter, 250 km Max 30,000 people Public Participation: Ward Citizen Forums (WCF) for citizen engagement WCF right to access all official records for sectoral and County departments
5.3.6 Size and Population of a County Ward

The Constitution requires the yet to be established Independent Electoral and Boundaries Commission to review the number, names and boundaries of wards periodically.55 Ordinarily, delimitation of wards and constituencies must be completed twelve month before a general election. This requirement is waived with respect to a review of wards and constituency boundaries preceding the first elections under the new Constitution. This means that the yet to be established IEBC may proceed to delimit boundaries of wards for the 2012 elections even if the same was done inside the twelve month period.
A critical issue for consideration is the determination of the criteria to be used to determine the size and number of Wards in Kenya, and consecutively, the determination of Wards per each County. The public consultation s has elicited various views on the size and population of a County Assembly ward.
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It has been suggested that the Task Force should recommend a minimum and maximum number of wards for each County and seek to distribute these wards based on the criteria set out in sections 89(5) and 89(6) of the Constitution 56.
The other approach is to take cognizance of public views that suggested that the present boundaries of wards for municipal and County councils should be maintained and translated into County Assembly wards. Yet others felt that these units would proliferate into numerous unsustainable County wards and which may be a saddle and a financial burden for the counties. In any case, this amounts to only maintaining current local authorities, less County councils. For this reason it was suggested that County wards should be demarcated to follow the administration units commonly referred to as locations. This would largely pay obeisance to the age old regard for community of interest and historical ties of the people. It is proposed that the delimitation of wards must consider the interests of the minority and marginalized groups. On the question of population, the public proposals range from a population figure of 5000 residents to a population of 25000. The predominant view being is guided by the need to offer a close and effective representation as well as a desire to maintain sustainable units that will not be a mere drain on scarce resources. Whether using the current location boundaries will reduce unsustainable wards and fulfil the desire for effective fiscal management remains debatable. A more enlightened approach would be to observe and borrow Constitutional requirements on Parliamentary representation boundaries formula that may lead to some merger of current local authority wards so as to establish more realistic boundaries for the County wards. In terms of geographical size, there appears to be a commonality of thought that highly populated areas should enjoy a dimension shrink while areas that are thinly populated should suffer a land mass pull out in line with provisions 89(6) of the Constitution. Whatever alternatives are available, it cannot be conceived that the present number or territorial extent of the Wards that feed into the local government units be transformed into County Assembly Wards. That would retain the current local government system of numerous Ward entities that would be expensive and uneconomic for the County governments to maintain. There is a need for ascertainment of a formula which will be used to collapse the existing units into viable and feasible components. There is also need to provide guidelines and criteria to the Independent Electoral and Boundaries Commission so as to inform the delimitation of wards this should specify the impact the delimitation may have on: appointments, limits of de-centralisation, structure of governance and marginalized groups.
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5.3.7
The Asymmetrical Transfer of Legislative Functions
Devolution is the transfer of power, specifically legislative power to governing bodies at a sub-national level. However the transfer of power is neither always uniform nor identical across the sub-structures created by devolution. In this instance I am of course referring to the 47 counties created by devolution in Kenya. Asymmetrical transfer means that some distinctions would be made between the various counties. Thus different (counties would) possess different powers: one or more of the (counties would have) considerably more autonomy than the other(s)57 even though their Constitutional status would remain the same. This is actually a natural requirement or progression of the devolution process for no two states can be said to be identical. Each one has different needs and capacities be it from an infrastructural perspective or a social perspective. It is for this reason that devolution is such a practical construct as it allows each County to individually innovate and develop their unique resources and achieve their full potential. Some counties will already possess the necessary capacity to assume a greater proportion if not complete legislative control over their region. Other regions in Kenya will have to lean far more on the legislative power of the central government as they will lack the necessary capacity to generate and indeed effect legislative change independently.
5.3.8
County Assembly Legislation
The Constitution permits a territorial, intra-County power of legislation to individual County Assemblies except as the issues touch on nationwide policies. The intention of the Constitution is to allow County legislation if the same does not contravene national laws. The equilibrium is set on a scale of comparison as to whether the matter in contention is one of local or national jurisdiction. The guiding principle seems to be a balance between the national good and County aspirations. Whichever view one takes, due consideration should be given to the Constitutional vision of permitting County Assemblies to steer legislation on County matters. A significant consequence flows out of this principle; County legislation does not apply outside the County territory. This means that different sets of laws may apply in different countries on matters that are almost similar. The County Assemblys power is confined to matters that are within the County governments functional jurisdictional competence as listed the Fourth Schedule thus Counties will be enacting legislation on the same issues and thus it is important to so as to ensure cohesiveness in specified areas and to avoid inconsistencies with national policies. As it is may be difficult to determine the type of capacity the 47 County Assemblies will have to enact legislation, and given the time and resources required to enact legislation that conforms with the modern drafting rules and principles, it is proposed
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that the Law Reform Commission be mandated to develop a generic or framework legislations (draft model laws) on the common issues identified in the Fourth Schedule which the Counties can then use and adapt to suit the circumstances in their own Counties. On the process of enacting laws, it is recommended that the legislative procedure adopted by County Assemblies should be less elaborate as compared to the Parliament so as to enable the process of enacting legislation in the counties be faster and less costly to the tax payer It is also proposed that all Bills passed by County Assemblies should be passed by Governor is the one who assents to bills emanating from the House of Assembly. The specifics of legislative procedures should be enacted in legislation so as to cater for issues such as; Proposed that County Assembly Rules of Procedure and Standing Order be enacted to provide for; Debate of County Public Bills, Private Bills, Sessional Papers, Three Readings for Bills, Questions, Motions, Voting and establishment of Committees.
5.3.9
Conflict of Laws
The Constitution makes specific provisions for the resolution of conflict of laws between National and County governments in matters falling within the concurrent jurisdiction of both levels of government.58 National legislation overrides County legislation in situations in which the National legislation is of a country wide application59 and the matter in contention cannot be properly regulated by each individual County because of the need to establish norms and standards or national policies.60 A further important consideration for dominance of National over County legislation is when the National legislation is required for the maintenance of national security, economic unity, and the protection of a common market in respect of mobility of goods, services, capital and labour. Moreover, if National legislation entails the promotion of economic activities across the country or the promotion of equal opportunity or equal access to government services or the protection of the environment, then County legislation would have to give way. 61 Finally, National legislation shall prevail over County legislation if the former is intended to prevent unreasonable action by a County that is prejudicial to the economic, health or security interests of Kenya or another County or impedes the implementation of national economic policies.62
5.3.10 Policy Issues and Recommendations on Legislation

A reorganization of the political and administrative structures is a pre-requisite to changing the character of Kenyas democratic configuration. County Assemblies should be strong institutions which represent the collective aspirations of the ordinary citizens, acting in the interests of the community.
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There should be Political decentralization where political power and authority is transferred to the County Assemblies, blended with a strong participatory framework and autonomy for the success of County governments. It is also proposed that Governor be granted powers to assent to all Bills passed by County Assemblies. County Assembly members should have as minimum, O level / Form four academic qualifications and relevant experience. It will be necessary to enhance the ability of elected leaders with technical capacity through either nomination or appointment of persons with expertise so as to enrich County Assembly debates. Local civil society groups and the public should actively participate in the County Assemblies public function so as to promote responsive and accountable local governance and this right to participate should be guaranteed through legislation. County Assemblies should have various sub-Committees:- finance & administration, health education, social welfare etc. Proposed legislation: County Assembly Rules of Procedure and Standing Order and Powers and Privileges Bill It is proposed that the procedures for enacting County legislation should be less elaborate than that of Parliament so as to save time and resources.
BOX 5.6: COUNTY VISIT SUBMISSION ON THE PROCEDURES FOR ELECTION OF COUNTY SPEAKERS Democratic process to be established Competitive hiring from within or without the County Interviewed by a panel of competent lawyers Names of Two selected candidates sent to the County Assembly for election Elections to be managed by the IEBC
It is proposed that County Assembly Rules of Procedure and Standing Order be enacted to provide for legislative procedures and:
Under Article 200 (1) of the Constitution, Parliament is empowered to enact legislation to give effect to all matters appertaining to implementation of the devolved system of government. Such legislation will provide for; The number of wards in the County Assemblies The educational, moral and ethical requirements for members of the County Assemblies, the governor and the speaker The procedure for election and removal from office of speakers of the County Assemblies and the Governors Powers, privileges and immunities of County Assemblies, their committees and members
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Protection of minorities within the counties Guarantee cultural diversity in the County Assembly and the County Executive the County executive County Assembly oversight over the County executive Basic duties and obligations for a member of the County Assembly and the Executive committee.
5.4
EXECUTIVE ARM OF GOVERNMENT
Kenya has historically experienced personalized and highly centralized governance systems and practices. The search for inclusive, involving, and participatory governance has taken the path of devolution. Political and administrative reforms that have been going on since the 1990s, have sought to break with the past through decentralization of powers to lower local governments. Devolved government was found to be the most suitable mode through which greater participation of communities in governance as well as oversight and ownership would be ensured. Key principles of devolution are that County governments shall be based on democratic principles, separation of powers, and that no more than two thirds of members of representative bodies in the County shall be of the same gender63.
5.4.1
Composition and Structure of the County Executive
The Constitution provides for a County government for each County, consisting of a County Assembly and a County Executive. The Executive authority of the County is vested in and to be exercised by a County Executive Committee consisting of a County Governor, deputy County Governor and members appointed by the County Governor with the approval of the County BOX 5.7: COUNTY VISIT Assembly, but who should not be SUBMISSIONS ON STRUCTURE members of the County Assembly64. The equivalent of a presidential system has County Executive Committee been adopted for the County government, District Executive Committee whereby the Governor is the chief Ward Executive Community Location Executive committee political Executive of the County is Sub-County Implementation Units directly elected by the populace and Sub-location Executive Committee possesses the sole power to appoint Village Elders members of the Executive Committee. Although the Executive normally refers to the entire branch responsible for the implementation of laws in government, in County government there is a distinction between the political leaders in the County Executive Committee, and the administrative hierarchy. This distinction is necessary because it is only the political leaders who will have political responsibility and accountability to the County Assembly and citizens. The Constitutional provisions on decentralisation also refer to Page | 86
decentralisation of functions and service delivery, and no provision is made of creation of new political structures. It would therefore not be possible to create new structures, but we have made recommendations on how Executive functions can be decentralised in a later part of this section. On the issue of distribution of Executive powers between the national and county governments the Constitution envisages a situation where national legislation can be implemented by the County Executive. This is meant to avoid unwieldy and expensive bureaucracies at County level and calls for cooperation, coordination and communication between the national and County Executives. There will also be need for compromise and consideration of the interests of both governments. It must however be pointed out that the need for compromise and coordination can make decision making difficult and gridlocks are likely to arise. We recommend that the legal framework in addition to providing for mechanisms of coordination and communication also provides for solutions in the event of lack of compromise. The provision for decentralisation of functions is in the interests of efficiency and practicality. We recommend two ways of decentralising Executive functions. The first is by way of delegation of functions to Executive Sub-Committees with the responsibility of analysing proposals and recommending appropriate action to the Executive Committee. These sub-Committees can be statutory or non-statutory and with specific mandates. The Chair and Vice Chairs of all Sub-Committees will be required to be members of the Executive Committee and other members can be coopted on the basis of their specific expertise. The second is by way of legal provision for transfer of Executive power to other semigovernment agencies (parastatals or Boards) through corporatization, or to the private sector through privatization. Corporatization refers to the reshaping of a publicly owned organization to operate on private sector corporate principles. Privatization refers to the transfer of a function entirely to the private sector. This can be by contracting out with the County government maintaining some control mechanisms or "getting out" of the function entirely, leaving provision of goods and services to the marketplace. Agency structures are preferable where the delivery of a function: should not be subject to direct influence of the Executive committee or public servants e.g. quasi-judicial functions requires more operational flexibility
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requires close and continuous participation of the public or private sector.
Corporatization and privatization have important implications in that they may provide for more efficient local decision-making but not necessarily local governance or local democracy. Membership of local Committees of parastatal organizations usually reflects special interests and expertise BOX 5.8: COUNTY VISIT SUBMISSIONS ON COUNTY rather than the EXECUTIVE COMMITTEE community as a collective of people. Membership is Members of County Committee Qualifications: mostly appointed rather Appointed from location level, representing each location, vetted by the County Assembly and approved by the than elected from and by Governor the community. Their role 70% of County civil service should be residents of County in decisions is important Service delivery should be community driven through but will not inevitably committees such as County Education Committee Hiring: reflect wider community All appointments to get clearance from KACC opinion and values. This Should publicly declare personal wealth may be local decision Advertiseinterviewselectionnominationvettinghiring making, not necessarily Approval by Assembly and removal by 2/3 County Assembly local governance majority vote Executive team should be geographically distributed from the Accountability is required whole region to the local community Removal through rigorous Use the County Service Committee consultation and Have an Impeachment committee to remove them not County public commission reporting.
County committee to investigate and recommend their removal Special Committee to evaluate them then recommend to the governor in appointment and sacking Vetting committee consisting of members of public should recommend their removal The removal should be done by the County Assembly members upon justified under performance By 51% of County Assembly members/ Resolution of two thirds or 75% of County Assembly, either by motion originating from County Assembly or from the petition from the public The Public Officer Ethics Act 2003 (POEA)
Key aspects that the legislation will need to address with respect to agencies are: The purposes, roles, powers and duties of the agencies The relationship of the agencies with other County government structures to ensure there is no duplication, gaps or
overlaps in service delivery or authority The responsibilities of the Executive committee for policy and administrative decisions
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The reporting relationships and requirements of the agency to the County government structures The size, composition and appointment process and procedures for the members of the governing board of the agency.
5.4.2
Election, Appointment and Qualifications of the County Executive
The County Governor is directly elected by registered voters in the County, and he/she nominates a qualified person as the deputy Governor who is declared elected once the Governor is elected. The direct election of the Governor increases the degree of accountability to voters. Electoral systems and processes used will influence the effectiveness of democratic governance in the counties in many ways. First, the legitimacy accorded an incumbent Governor will be shaped by the Governors apparent scope of victory, which is influenced by the election method used. Second, the interaction of the methods used for electing Governors and County Assembly members will affect the extent of party fragmentation and the percentage of the County Assembly seats controlled by the Governors party. Both of these factors will affect the ability of the Governor to obtain legislative support for their policy initiatives. Through its effect on the number of parties able to obtain representation in the County Executive structures and County Assembly, the electoral system also influences the fairness of political representation. Party systems also respond to the realities of local politics and electoral systems, and produce corresponding structures at the local levels. 5.4.2.1 Leadership and Integrity
The governance challenge under the new Constitution revolves around how to cultivate an ethical leadership in both the political arena and the bureaucracy. Leadership primarily refers to the ability to influence others to act towards a desired goal. Ethical leadership refers to leadership that is founded on values and that advances the public interest for the benefit of the majority. The main the guiding principles of leadership and integrity as provided by the Constitution include: selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices; selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties; and the declaration of any personal interest that may conflict with public duties; accountability to the public for decisions and actions; and
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discipline and commitment in service to the people
The Constitution seeks to reverse the governance paradigm by institutionalizing a leadership with integrity. It does this primarily by: establishing an enabling normative framework and setting parameters within which leadership will be exercised under the new Constitution including: the responsibilities of leadership; conduct expected of state officers; financial probity; restriction of certain activities by public officers; and the requirements of citizenship for leaders. The Constitution provides for the establishment of an ethics and anti-corruption commission for the purposes of implementing the provisions on leadership and integrity. Ethical behaviour and personal integrity in public life means that public officials act in ways that they and society have accepted as right conduct and that this behaviour is consistent with their personal values and commitments. Most people in public office enter public service with honourable intentions, but there are enticements in public life that can lead honourable individuals to make ethical misjudgements. To curb the temptations of power and position, ethical laws are created that set limits on public action. Ethics laws are usually created in response to some act that lawmakers feel was of questionable ethical conduct. Ethics legislation is only one way to set standards of ethical conduct by which public officials should operate. Ethical government means much more than laws. It is a spirit, an imbued code of conduct, an ethos. Laws and rules can never be fully descriptive of what an ethical person should do. They can simply establish minimal standards of conduct. Official judgment and discretion in the public interest must also be governed by personal responsibility and knowledge of the consequences of their actions. In the end, personal integrity will determine the level of ethical behaviour in government. We recommend that there be an ethics laws to provide some basic standard for ethical conduct and consequent penalties for unethical behaviour. This law will address the following aspects: conflicts of interest, gifts, financial disclosure, (gifts and financial disclosure are subcategories of conflicts of interest), ethics oversight and vetting procedures.
Conflicts of Interest
Individuals serving in public office, whether elected, appointed or civil servants, all have histories that may include other interests. This situation can sometimes create difficult choices between an individuals personal interest and the interest of the public. Conflicts of interest are often defined in terms of receiving a personal benefit as a result of ones position or decision, particularly a financial benefit. Conflicts may arise as a policymaker receives gifts or honorariums, in representing clients, or in doing business with the state in which they make decisions on public policy. The law will also require individuals not to vote in situations where a potential conflict of
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interest exists. The policymakers must state the conflict prior to a vote and ask to excuse themselves.
Personal Financial Disclosure

The requirement of public leaders to disclose their personal financial interests includes details on their occupation, any financial interest in businesses or other sources of income, any leadership or board positions with corporations or properties they hold. This information is to help determine whether a conflict of interest might exist if these interests come into conflict with decisions made in the public trust. This information is also required of the leaders spouse and dependent children.
Gift Restrictions
The category of gifts received from political lobbyists or supporters is one of the most common areas restricted in ethics laws. Most states allow some level of giving gifts, recognizing the difficulty of defining what is a gift and trying to assess the value of such gifts. Options include zero tolerance which strictly prohibits gifts of any kind or value. Another option is to place a specific monetary value on gifts received or total amount from a supporters or lobbyist in a given year. A third option is to restrict gifts only if they are viewed as influencing official action.
Oversight
There are two basic mechanisms for overseeing ethical conduct in government: constitutional commissions and committees. The ethics and integrity commission is a constitutional commission composed of citizen or public officials or other public leaders who oversee political leaders and public employees compliance with ethics laws and rules. Commissions investigate ethics complaints and determine penalties or give advisory opinions. They may also adopt regulations to administer ethics laws, provide ethics training, and receive financial disclosure and lobbyist reporting documents. Ethics committees are generally self-regulating bodies whose members are legislators. This is a means of internal oversight provides for by legislators who determine compliance with ethics laws and rules. These committees deliberate on accusations of ethical violations of County government members and prepare codes of ethics for the members. Procedures for the Ethics Committees are the usually as follows:
A complaint is submitted in writing to the chair of the committee. Following a preliminary investigation, if necessary, there is a formal hearing. The committee can then make a recommendation to resolve the conflict.
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The recommendation is then sent to the legislative body for a vote. The legislative body can accept, dismiss, or alter the recommendation. If the recommendation is for expulsion or removal, it requires a 2/3 vote.
Vetting Processes
5.4.2.2
To hold public office, we recommend that individuals not only have to be competent but also need to be persons of integrity. The qualities of public officers fall into two basic categories, capacity and integrity. Capacity refers to the qualities that enable personnel to fulfil the technical tasks of the institutions mandate. This is evaluated by a persons qualifications, such as general education and professional training, professional experience and competence, as well as her or his physical and mental aptitude. Integrity relates to the qualities that enable a person to fulfil his or her mandate in accordance with fundamental human rights, professional and rule-of-law standards, including a persons financial propriety. Vetting is an important aspect of determining capacity and integrity. Vetting can be defined as assessing integrity to determine suitability for public employment. Integrity is measured by a persons conduct. Vetting processes should, therefore, be based on assessments of individual conduct. Vetting processes aim at excluding from public service persons with serious integrity deficits in order to establish civic trust and legitimize public institutions. The citizens are unlikely to trust and rely on individuals with serious integrity deficits, which would fundamentally impair the Countys capacity to deliver its mandate. We recommend that the legislative framework on the vetting process should provide for vetting by the Ethics and Integrity Commission of all persons seeking to be elected or appointed to the County Executive Committees and provide for the basis of the assessment, in terms of requirements and parameters of integrity standards and the vetting mechanisms and procedures. The legislation should provide for the following to enable effective vetting: The classification of information, assets, and sites, and exempts the vetting procedure from principles of the privacy law. Entitlement to the ethics and integrity commission to collect personal information not only from vetting candidates themselves, but also from other people and organizations. Such disclosures by others of personal information about the candidate should not be a breach of law A set of administrative directives and guidelines that give standard procedures to be used across County governments The rights of candidates including to be informed of the results of the background check and if a clearance has been denied of the grounds of a criminal record, or as a result of financial inquiries, the candidate should be
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shown the information on which the decision was based, and should have the opportunity to correct any inaccuracies The right to appeal in case of denial of clearance Qualifications for Election/Appointment
5.4.2.3
A person is eligible for election as a member of a County Assembly or Governor/ Deputy Governor if the person is registered as a voter; satisfies any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament; and is either nominated by a political party or is an independent candidate supported by at least five hundred registered voters in the ward concerned. The Constitution has introduced measures such as allowing independent candidates to run in local elections65, and the principle that no more than two thirds of members of representative bodies in the County shall be of the same gender, and limiting the length of term for the County Executive Committee to two five year terms. There were varied submissions on the nature of educational and other qualifications required of the Governor, Deputy Governor and County Executive Committee members. One of the arguments that has been put forward is that setting educational qualifications would be unconstitutional since the Bill of Rights provides that every citizen has a right to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office66. The Constitution however does allow for limitation of rights to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and political rights are not among those rights that cannot be limited 67. Secondly the Constitution expressly provides that qualifications for election include any educational moral and ethical requirements prescribed by Parliament or legislation68. It is important here to note that the requirements of competence and suitability which is one of the principles of leadership and ethics can only be operationalised through educational and professional qualifications. These qualifications must also be read in the light of the functions that the County Executive will be required to perform which are elaborated in a separate section of this chapter.
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It is our recommendation that the minimum educational and professional qualifications of the Governor, Deputy Governor and Executive Committee members be as follows: Must be holder of at least a first degree from a recognised university Fluent in Kiswahili and English Meet the requirements of leadership and integrity of the Constitution Have knowledge and experience and have a distinguished career of not less than five years in fields not limited to public administration, finance, management, law, economics, human rights, social development or governance.
BOX 5.9: COUNTY VISIT SUBMISSIONS Governor: Degree: in public administration, economics, humanities, social sciences, community development 10 years experience Elected by majority, not simple majority Headed a government department and show what unique contribution has been done in that department Responsibilities/Accountability Link between County and national government Monthly statements by the governor Formation of a vetting committee headed by the governor Question answer sessions with the public, County speech at legislated time Information section in the governors office Have a spokesman to tell people over the radio on the goings-on in the County. Through chiefs when disseminating information Have face to face forums with the governor to answer public questions Deputy Governor: At least 5 years experience in public or private sector, nominated by governor and approved by County Assembly, demonstrated past success in project management, Computer savvy, proven track record of involvement in community projects, Should be a technocrat
In addition the Governor and Deputy Governor should not be from the same gender, and no more than twothirds of the Executive Committee should be from one gender. Election of Governor
5.4.2.4
The Constitution currently provides for elections for County Governors and County Assembly members on the same day as those for the President and members of Parliament the second Tuesday of August of every fifth year. Separating elections of national and county political leaders presents logistical difficulties, but has the advantage of allowing for local concerns to predominate during the County electoral
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cycle and County leadership to function more independently of higher authorities, and also generally raises the profile of County government. If the local electoral system does not secure a real competition among local politicians, devolution might end up strengthening the hands of local political strongmen. Political competition among local politicians increases the chances for vulnerable groups to be included into the decision-making processes. More importantly, greater and more meaningful political competition for local political offices also results in increased level of uncertainty among local political elites, in that citizens have a means of control over elected officials through the presence of viable electoral alternatives, and this enhances the responsiveness of these elites to the concerns of the citizenry. The extent to which citizens voices are effective through the electoral system at County level will also depends on factors beyond the citizens control. Representative democracy provides citizens with an opportunity to vote, but without certain mitigating features, citizens are often forced to accept the agendas set by political parties. Party system features in a particular County will mainly depend on elements such as the number of parties competing in the County elections, rules governing the financing of parties, rules governing the participation of disadvantaged groups, such as women or certain minority groups, and the availability of parties based on ethnicity or religion. The representation of a broad range of groups and interests in governments and political processes more generally, is not only symbolically important, but it also improves the quality and legitimacy of decisions. The general principles that therefore should guide design of electoral system, as well as the process of choice itself are69:
Representation
The basic task for an electoral system is to translate votes into seats; to transform the expressed will of the voters into people who will represent it. There are many views of what fair representation is geographic representation, descriptive representation, ideological or party political representation but regardless of the view that is taken in each country, representation as a principle is a key guide when designing the most suitable electoral system.
Transparency
It is important that the mechanisms of the electoral system be as transparent as possible and known to both voters and political parties and candidates well in advance in order to avoid confusion and distrust in the results they produce at elections. The process through which the choice of electoral system is arrived at also benefits from transparency for the same reasons. If stakeholders arguments and influence over the process of review, reform or adoption are presented in an open
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way, the process and the electoral system arrived at will have a greater chance of being seen as legitimate.
Inclusiveness
The electoral system will have a greater chance of being accepted as fair and legitimate if it is considered to work in an inclusive manner. This means not only that the electoral law allows as many as possible citizens to vote (including inclusive suffrage, making sure that the system is easily understandable, and assuring access for all to the polling station), but also that the mechanisms of the electoral system do not overtly discriminate against any one group in society, minority or otherwise. From the views given by the public on election of the Governor, it was clear that there was consensus that a plurality/majority system was preferred. The principle of such a system is that after votes have been cast and totalled, the candidate with the most votes is declared the winner. However, there were differing views as to whether the majority that was required is a simple majority or an absolute majority. The First Past The Post (FPTP) system is the simplest form of plurality/majority system, using single member districts and candidate-centred voting. The voter is presented with the names of the nominated candidates and votes by choosing one, and only one, of them. The winning candidate is simply the person who wins the most votes; but not necessarily an absolute majority of the votes. Majoritarian systems70 try to ensure that the winning candidate receives an absolute majority (i.e. over 50 per cent). The systems in essence makes use of voters second preferences to produce a winner with an absolute majority if one does not emerge from the first round of voting. The first round is conducted in the same way as a single-round plurality/majority election using FPTP. A candidate or party that receives a specified proportion of the vote is elected outright, with no need for a second ballot. This proportion is normally an absolute majority (over 50%) of valid votes cast, although a different figure can be used to ensure majority. If no candidate or party receives an absolute majority, then a second round of voting is held and the winner of this round is declared elected. The details of how the second round is conducted vary in practice from case to case. The most common method is for it to be a straight run-off contest between the two highest vote winners from the first round; this is called majority run-off. It produces a result that is truly majoritarian in that one of the two participants will necessarily achieve an absolute majority of votes and be declared the winner.
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Table 5.1: Advantages and Disadvantages of the Simple and Absolute Majority Electoral Systems
ADVANTAGES Simple Majority (FPTP) FPTP systems are particularly praised for being simple to use and understand. A valid vote requires only one mark beside the name or symbol of one candidate. Even if the number of candidates on the ballot paper is large, the count is easy for electoral officials to conduct. It promotes a link between constituents and their representatives, as it produces a legislature made up of representatives of geographical areas. Elected members represent defined areas of cities, towns, or regions rather than just party labels. It allows voters to choose between people rather than just between parties. It gives a chance for popular independent candidates to be elected. This may be particularly important in developing party systems, where politics still revolves more around extended ties of family, clan, or kinship and is not based on strong party political organizations. It advantages broadly-based political parties. In severely ethnically or regionally divided societies, FPTP is commended for encouraging political parties to be broad churches, encompassing many elements of society, particularly when there are only two major parties and many different societal groups. It provides a clear-cut choice for voters between two main parties. The inbuilt disadvantages faced by third and fragmented minority parties under FPTP in many cases cause the party system to gravitate towards a party of the left and a party of the right, alternating in power. Third parties often wither away. It gives rise to single-party governments and coalition governments are the exception rather than the rule. It gives rise to a coherent opposition in the legislature. It excludes extremist parties from representation in the legislature. Unless an extremist minority partys electoral support is geographically concentrated, it is unlikely to win any seats under FPTP. Absolute Majority Majoritarian systems can encourage diverse interests to coalesce behind the successful candidates from the first round in the lead-up to the second round of voting, thus encouraging bargains and trade-offs between parties and candidates. It also enables the parties and the electorate to react to changes in the political landscape that occur between the first and the second rounds of voting. Majoritarian systems allow voters to have a second chance to vote for their chosen candidate, or even to change their minds between the first and the second rounds. Majoritarian systems lessen the problems of vote-splitting, the common situation in many plurality/majority systems where two similar parties or candidates split their combined vote between them, thus allowing a less popular candidate to win the seat. DISADVANTAGES Simple Majority (FPTP) It excludes smaller parties from fair representation, in the sense that a party which wins approximately, say, 10 per cent of the votes should win approximately 10 per cent of the legislative seats. In the 1998 general election in Lesotho, the Basotho National Party won 24 per cent of the votes but only 1 per cent of the seats. This is a pattern which is repeated time and time again under FPTP. It excludes minorities from fair representation. As a rule, under FPTP, parties put up the most broadly acceptable candidate in a particular district so as to avoid alienating the majority of electors. There is strong evidence that ethnic and racial minorities across the world are far less likely to be represented in legislatures elected by FPTP. It excludes women from the being elected. The most broadly acceptable candidate syndrome also affects the ability of women to be elected to legislative office because they are often less likely to be selected as candidates by male-dominated party structures.. It can encourage the development of political parties based on clan, ethnicity or region, which may base their campaigns and policy platforms on conceptions that are attractive to the majority of people in their district or region but exclude or are hostile to others. This has been an ongoing problem in African countries like Malawi and Kenya, where large communal groups tend to be regionally concentrated. The country is thus divided into geographically separate party strongholds, with little incentive for parties to make appeals outside their home region and culturalpolitical base. It exaggerates the phenomenon of regional fiefdoms where one party wins all the seats in a province or area. If a party has strong support in a particular part of a country, winning a plurality of votes, it will win all, or nearly all, of the seats in the legislature for that area. This both excludes minorities in that area from representation and reinforces the perception that politics is a battleground defined by who you are and where you live rather than what you believe in. It leaves a large number of wasted votes which do not go towards the election of any candidate. This can be particularly dangerous if combined with regional fiefdoms, because minority party supporters in the region may begin to feel that they have no realistic hope of ever electing a candidate of their choice. It can cause vote-splitting. Where two similar parties or candidates compete under FPTP, the vote of their potential supporters is often split between them, thus allowing a less popular party or candidate to win the seat. It may be unresponsive to changes in public opinion. A pattern of geographically concentrated electoral support in a country means that one party can maintain exclusive executive control in the face of a substantial drop in overall popular support. Finally, FPTP systems are dependent on the drawing of electoral boundaries. Boundary delimitation may require substantial time and resources if the results are to be accepted as legitimate. There may also be pressure to manipulate boundaries by gerrymandering or malapportionment. Absolute Majority Majoritarian systems place considerable pressure on the electoral administration by requiring it to run a second election a short time after the first, thus significantly increasing both the cost of the overall election process and the time that elapses between the holding of an election and the declaration of a result. This can lead to instability and uncertainty. Majoritarian systems also place an additional burden on the voter in terms of time and effort required to cast the vote as the voter has to make it to the polling station twice, and sometimes there is a sharp decline in turnout between the first round and the second. Majoritarian systems share many of the disadvantages of FPTP. Research has shown that in France it produces the most disproportional results of any Western democracy, and that it tends to fragment party systems in new democracies. One of the most serious problems with majoritarian systems is its implications for deeply divided societies. Losers in the run-off phase have little incentive to play the democratic opposition and this is often a trigger for conflict e.g in Angola and the Congo.
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There were various proposal made on the majoritarian proportions needed for the election of the Governor from the county hearings: 1. Option One: An Absolute majority of 50% + 1 votes 2. Option Two: An Absolute majority of 50% + 1 votes and at least 25% votes cast in half of the ward in the county 3. Option Three: At least 25% of votes cast in half of the wards in the county What is important to note is that there are only two options: a simple majority or an absolute majority of any of the above three variants. These options have to be weighed in light of the advantages and disadvantages of a simple FPTP and Majoritarian plurality system as illustrated in the Table 5.1 In order to ensure effective political competition and legitimacy, and to facilitate political stability, we recommend that the Governor be elected either by a simple majority of votes cast in the County or by at least 25% votes cast in more than half of the wards in the County. 5.4.2.5 Appointment of Executive Committee Members
The composition of the Executive committee can follow two different modes: the first is composition along party lines where the Governor chooses members mainly along party lines and the political affiliation of the member is the principal factor taken into account. The second mode is where the composition is prescribed by law and it is not left to the political process or wishes of a Governor. The Constitution states that one of the principles of governance is inclusiveness and one of the principles of devolution is to foster national unity by recognizing diversity. It is also clearly stated that the law must ensure that the community and cultural diversity of a County is reflected in County Executive committee; and also protect minorities within counties71. There is thus a clear constitutional requirement for a balanced Executive committee composed of representation from different regions, ethnic or religious groups from a County. The Constitution also requires approval of County Executive appointments by the County Assembly. Granting power of selection of Executive Committee members exclusively to the Governor may lead to a situation where all members of the Executive Committee are from the same gender, ethnicity, or regional area. In counties with multiple ethnic groups it is less likely that members of minority groups will hold the position of chief Executive and by extension in the Executive Committee. Approval by County Assembly may also not fully address the requirement of a balanced Executive committee, especially in circumstances where the majority party in the County Assembly is also the Governors party. We therefore recommend two additional safeguards. The first safeguard is for the legislative framework to specifically provide for a pluralistic Executive Committee in
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terms of gender, minorities and region representation. This system will be particularly effective where there are multiple, dominant ethnic or religious groups because it ensures a balanced representation within the Executive Committee from different groups. In terms of mode of appointment we do not recommend a competitive process as this will unreasonably fetter the discretion and responsibility given to the Governor to ensemble a team that is accountable to him or her. The second safeguard is the specific qualifications already provided for the Executive Committee members to ensure that appointment is based on expertise rather than corruption, favouritism, or nepotism.
5.4.3
Mandate and Functions of the County Executive
The main intention of the provisions of the Constitution is to create an autonomous County Executive, controlled by locally elected representatives. Executive authority is now constitutionally vertically divided between the central government and the County governments, ensuring political autonomy and governance for County governments in defined geographical areas72. The provisions on the County Executive will be key in implementing the governance aspects of devolution that address the development of democracy, the legitimacy of authority, and the accountability of political leaders at County level. The Executive arrangements will also have a key bearing on the functional aspects of devolution in terms of ensuring efficiency in County administration and service provision. The Governor and Deputy Governor are the chief Executive and deputy chief Executive of the County respectively, and the Constitution states that the members of a County Executive Committee are accountable to the County Governor for the performance of their functions and exercise of their powers73. A County Executive Committee has the following functions: a. to implement County legislation; b. to implement, within the County, national legislation to the extent that the legislation so requires; c. to manage and coordinate the functions of the County administration and its departments; and d. perform any other functions conferred on it by the Constitution or national legislation.
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A County Executive Committee may prepare proposed legislation for consideration by the County Assembly and shall provide the County Assembly with full and regular reports on matters relating to the County. These functions of the County Executive Committee are in relation to the functions and powers given to County governments under the Fourth Schedule of the Constitution. The most important consideration in operationalising the County Executive functions74 is that the legal framework should focus on the role of the Executive Committee as policy makers and political representatives, rather than giving them powers and responsibilities that will result in their micro-managing of the County and assuming the management responsibilities of the County administration.
BOX 5.10: COUNTY VISIT SUBMISSIONS COUNTY EXECUTIVE COMMITTEE MANDATE Link between County and national government Monthly statements by the Governor Question answer sessions with the public, County speech at legislated time Information section in the Governors office Have a spokesman to tell people over the radio on the goings-on in the County. Through chiefs when disseminating information Have face to face forums with the Governor to answer public questions
We therefore recommend that the roles of the Executive Committee will be as follows: political responsibility, decision making, policy formulation and oversight, and County administration establishment. The key areas which the law should address in this respect are: The Processes of Policy Formulation and Approval(including legislation) Budget Formulation and Approval processes Procedures for the Establishment of the County Administration Delegation powers Access to Information and Public Hearings Liability Conflict of Interest and Disclosure Requirements Political Accountability
5.4.3.1
Political accountability arises as a result of the fact that membership in the County Executive arises through the political process, and their primary role is to meet the political responsibilities as representatives of those areas for which they have been elected or appointed. The Governor and deputy Governor will be required to gain office by putting before the people a political platform that is found acceptable by a majority of the voter.
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Accountability is the obligation on the part of public officials to report on the usage of public resources and answerability for failing to meet stated performance objectives. Accountability always operates together with transparency, which is the unfettered access by the public to timely and reliable information on decisions and performance in the public sector. Political accountability is also sometimes referred to as democratic accountability and refers to accounting to the electorate about the way government business is conducted. This form of accountability usually refers to political leaders being held accountable through local elections and impeachment procedures, but it also refers other political aspects such as campaign finances, performance evaluation, and so on. This will need to be regulated through the devolution framework legislation and also by national elections and political parties legislation. 5.4.3.2 Democratic Decision Making
The decision making duty arises once the Executive Committee is in office, and it has to determine the wishes of the people before preparing and implementing policies and plans for the County. Here the Governor especially will be faced with political decisions that may not be acceptable to a section of the electorate he or she represents, and it is his or her duty to make decisions for the betterment and development of the County as a whole. Balancing various competing interests will be an integral part of the decision making functions of the Executive Committee. The following key principles in decision making need to be reflected and detailed in the framework legislation: The responsibilities and relationships of the Executive committee in setting strategic direction, supervising actions required to implement the direction and the responsibility to manage and safeguard the Countys resources. Collective responsibility of the Executive committee for the policies, management and actions of the County government administration. Opportunities for public input to help identify needs and set priorities, comment on proposed policies and provide information and feedback Effective communication of the Executive committee decisions in a manner that provides information with clarity and accuracy. Policy Formulation and Oversight
5.4.3.3
Policy formulation is a major function of the Executive Committee and it is this function that will guide political direction, internal administrative functions, expenditures, County legislation, the Executive Committees processes and procedures and the provision of services. Financing the operations of the County will be a basic responsibility of the Executive Committee in implementing policies and laws, and will include budget formulation and scrutiny as well as responsibility for all
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expenditure incurred by the County government. The operationalization of policy making will require the following aspects to be clearly detailed in the legislation: Policy initiation and advance consultation. This will include details on the County structures that can initiate policy, the steps in this process and approval mechanisms. It will also involve public input in terms of discussion papers, public forums and advisory committees and finally progress reviews. Preparation of the policy documents particularly the requirement for written submissions and proposals, the analysis processes and the format of Executive committee documents and decisions. The processes and format of communication of the policy decisions and documents. Establishment and Supervision of County Administration
5.4.3.4
The Constitution has given County governments the power to establish staff positions in the County, and to hire, discipline and remove staff in those positions. This is primarily an Executive function and legislation will provide the standard norms and procedures to be followed by all counties in this respect. The County administration will be the organizational units created for the purposes of managing the functions and services of the County. The administration will be organized in the form of departments or other similar units. These departments or units will be in two forms: Central agencies providing support to the County Executive and all departments Line departments delivering services to the County residents.
The key role of the County administration in relation to the Executive committee will be to provide information and recommendations with respect to policies and financial requirements, and implementing of the Executive committee decisions. Details on the structures and legislation requirements are provided in the sections on the County public service and administration. 5.4.3.5 Checks and Balance
The provisions of the Constitution also provide the checks and balances between the County Executive and County Assembly. The County Executive Committee shall provide regular reports to the County Assembly75, and the County Assembly may exercise oversight and approve the plans and policies of the County Executive 76. This appears to be a weak definition of oversight, and we recommend that there be more formal oversight mechanisms in the legal framework and County Assembly standing orders to enable County Assemblies and the public to oversee Executive policy implementation and service delivery, and hold the County bureaucracy accountable for their performances. We also recommend that the Governor be given veto powers over legislation passed by the County Assembly as a check against unreasonable and
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unlawful County Assembly operations. The power to veto is the power given to the Governor to withhold assent to a BOX 5.11: COUNTY VISIT SUBMISSIONS bill passed by the County ON RECALL ISSUES Assembly. Veto powers are exercised if a bill passed by the Enact provisions for non-performing County Assembly is criminal, Governors illegal or in violation of the Removal by resolution of County Assembly Constitution. The Governor will be By the Governor upon approval by the required to return to the County County Assembly. Assembly any such law so Independent Commission to verify and make presented to him, and may recommendations removal. transmit therewith any Use the County Service Committee Impeachment Committee amendments which he may Speaker to act as Interim Governor recommend. The legislation will therefore also require the Governors assent to all Bills passed by the County Assembly.
5.4.4
Removal from Office
The Constitution provides for circumstances when that the office of a Governor will becomes vacant if he or she dies; resigns, in writing, addressed to the speaker of the County Assembly; ceases to be eligible to be elected County Governor; is convicted of an offence punishable by imprisonment for at least twelve months; or is removed from office for the following reasons: gross violation of the Constitution or any other law; where there are serious reasons for believing that the Governor has committed a crime under national or international law; abuse of office or gross misconduct; or physical or mental incapacity to perform the functions of office of County Governor.
If a vacancy occurs in the office of County Governor, the deputy County Governor shall assume office as County Governor for the remainder of the term of the County Governor. If a vacancy occurs in the office of County Governor and that of deputy County Governor, or if the deputy County Governor is unable to act, the speaker of the County Assembly shall act as County Governor and an election to the office of County Governor shall be held within sixty days after the speaker assumes the office of County Governor. Legislation will elaborate on the procedure of removal of a County Governor and since the Governor is elected through a majority direct vote and the legitimacy that
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this implies, it also means that removal can only be by a special procedure and supermajority decision in an impeachment procedure. This will require an absolute majority of the members of the County Assembly to support the impeachment of the Governor. The framework legislation will provide for the procedures of impeachment. If a vacancy arises in the office of the County Governor, the members of the County Executive Committee also cease to hold office77. Procedures should also provide for additional circumstances when Executive Committee members should leave office. Considerations here include whether the Governor has the power to remove them at will, or whether the County Assembly can pass a vote of no confidence in the Executive Committee. There also needs to be a legitimate process for removing corrupt and incompetent Executive Committee officials (public referenda, formal financial reviews, and so on) for good governance. The Constitution also specifically states78 that the legislation will provide for the procedures for the removal of and for suspension of County Executive Committees.
5.4.5
Conclusions on the County Executive

OUTSTANDING ISSUE:
The Executive will be responsible for the implementation of laws in While the direct election of the Governor the County government, and will increases the degree of accountability to voters, the legitimacy accorded an incumbent have political responsibility and Governor will be shaped by the Governors accountability to the County apparent scope of victory. We recommend Assembly and citizens. We that the Governor be elected either by a recommend two ways of majority of 50% plus 1 votes cast in the decentralising Executive functions. County or by at least 30% votes cast in more than half of the wards in the County. The first is by way the legislative framework providing for delegation of functions to Executive Sub-Committee and the second by way of legal provision for transfer of Executive power to other semi-government agencies (parastatals or Boards) through corporatization, or to the private sector from beginning to end privatization. The qualities of the County Executive will fall into two basic categories, capacity and integrity. We recommend that legislation provided for the following minimum educational and professional qualifications of the Governor, Deputy Governor and Executive Committee and knowledge and experience of not less than five years in relevant fields not limited to public administration, finance, management, law, economics, human rights, social development or governance. In addition the Governor and Deputy Governor should not be from the same gender, and no more than two-thirds of the Executive Committee should be from one gender.
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Integrity aspects will be addressed ethics that will standards of ethical conduct by which public officials should operate. This law will address the following aspects: conflicts of interest, gifts, financial disclosure, (gifts and financial disclosure are subcategories of conflicts of interest), ethics oversight and vetting procedures). There is thus a clear constitutional requirement for a balanced Executive committee composed of representation from different regions, ethnic or religious groups from a County. The Constitution also requires approval of County Executive appointments by the County Assembly. We recommend two additional safeguards. The first safeguard is for the legislative framework to specifically provide for a pluralistic Executive Committee in terms of gender, minorities and region representation. The second safeguard is the specific qualifications already provided for the Executive Committee members to ensure that appointment is based on expertise rather than corruption, favouritism, or nepotism. The legal framework should focus on the role of the County Executive Committee as policy makers and political representatives, rather than giving those powers and responsibilities that will result in their micro-managing of the County and assuming the management responsibilities of the County administration. We therefore recommend that the roles of the Executive Committee will be as follows: political responsibility, decision making, policy formulation and oversight, County administration establishment and providing checks and balances by way of veto powers of the over legislation passed by the County Assembly. Finally, Legislation will elaborate on the procedure of removal of a County Governor through an impeachment procedure. This will require an absolute majority of the members of the County Assembly Procedures in the legislation will also provide for additional circumstances when Executive Committee members should leave office.
5.5
5.5.1
ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT

Historical Context
Local governments like all other political organizations are supported by political, administrative and legal structures which must be in synch if they are to deliver on their objectives. The interplay among these structures and especially the relative balance between political and administrative responsibilities supported by an appropriate legal regime are vital for the legitimacy and performance of local governments. It is in this context that a historical review of local governments in Kenya is provided in this section.
Local governments in Kenya date back to the middle of 1920s and owed their existence and operations to ordinances and legal notices or the royal charter in the case of Nairobi when it was elevated to a city in 1950. The colonial system of local governance was replaced after independence with the enactment of the Local
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Government Act (Cap 265). The independence Constitution introduced a devolved system of government with a Senate, regional governments and regional Assemblies designed to protect the interests of the regions. The regional governments were to have independent public services and taxation powers. The major functions devolved to them were agriculture, public lands, education, housing, minerals and local authorities. The system of government barely took off before it began to be dismantled immediately after the Kenya became a Republic in December, 1964. This came to a head when their major functions, primary education, health and roads services were transferred to the central government in 1969 through the Local Government (Transfer of Functions) Act, 196979.
The administrative systems of the current local authorities (LAs) are not different from those of the colonial Councils. The town clerks remain the chief Executive officers of Councils, and usually supported by a treasurer, health officer and the town engineer who are in charge of the major departments. At the moment these officials are among the few council employees who are seconded by the Public Service Commission to LAs and are therefore transferable to across councils. County Councils are chaired by County Chairmen, while Town and Municipal Councils are chaired by mayors. Typically, LAs departments are established on the basis of the major functions of the councils. In practice urban municipalities have more functions and therefore have more developed functional and administrative structures. Most decisions of councils are made through Committees that are usually structured to reflect the major service delivery functions.
5.5.2
5.5.2.1
Devolution of Government
Governance Structures
Unlike the current management of LAs the Constitution establishes a clear Executive structure for County Governments (Article 179). This comprises the Governor, Deputy Governor and an Executive of at most 10 members who together form the County Executive committee. While the Governor and the Deputy Governor are elected they, unlike the elected officials in LAs have Executive powers. The Governor is the chief Executive of the County and is responsible for the appointment and supervision of the members of the Executive committee. The County Executive is responsible for implementation of national and County policy, supervision and coordination of County administration and submission of legislation to County Assembly. The County Executive is only accountable to the citizens of the County through the County Assembly. The County Executive has full control of the County public servants and as provided by Article 235(1) of the Constitution can: establish and abolish offices in County public service Page | 106
appoint persons to hold or act in those offices, and to confirm their appointments exercise disciplinary control over and removal of persons holding or acting in those offices
These powers are to be exercised, however, within a framework of norms and standards that are to be provided by an Act of Parliament. The Act should not infringe on the County governments to constitutional right to control their public service. This is important because these responsibilities are essentially the elements that signify the autonomy of counties in decision making regarding delivery of services related to the assigned functions. 5.5.2.2 Administrative Structures
Administrative decentralization refers to decentralization of the control of staff and human resources in general to sub-national governments. In the context of devolution this aspect of decentralization usually receives less attention than political and fiscal decentralization. This is a misnomer given that human resource and institutional development ultimately have the highest impact on the performance of County governments. It is thus important that the design and structure of the County administration is given the due attention it deserves. In reviewing the likely organizational structure of counties it is important to distinguish between political structure, the supporting administration and the linkage between the County governments and the national government. 5.5.2.3 The County Executive
In designing County administration emphasis must be placed on effective organizational structure with well-defined responsibilities assignments. It is thus envisaged that the Governor and the Deputy Governor will supervise the Executive committee members and that each member will be responsible for one or more specific departments to be created in the counties. It is expected that the Governor will appoint one of the members of the Executive as the head of administration/ chief Executive officer. This will be the accounting officer of the County government and other members will report to him/her. Units under each department in the County are expected to be headed by senior professional with qualifications that in some cases will be prescribed through national regulations or acts of Parliament. This is important to ensure that service delivery is according to national standards. As the County Assemblies will be small, the professional staff that will provide services to them is expected to be equally small. It is therefore proposed that County Assembly staff belong to the County public service. This applies to the question of whether each County will have its own Public Service Commission. With a small staff there would be no need for full time Commission. It is recommended that a Commission made up of the Executive committee member and an equal number of Page | 107
members of the public appointed by professional bodies and associations and chaired by the Deputy Governor be established. The Commission will operate on a part time basis under an Act of Parliament provided for by Article 235 and with terms and conditions determined by the Salaries and Remuneration Commission. Whereas the counties will be in full control of the establishment and abolition of County offices, it reasonable to expect that County departments would be established on the basis of the functions of counties provided for by the Fourth Schedule of the Constitution. It is not necessary that names of these departments correspond to those of the national government, but the clustering of units within each department should be such that the head of a department have the necessary competence in most of the areas. This view was expressed in many of the County consultations. The establishment of the departments and creation of other positions will of course depend on the number of Executive positions in a County and the priorities of counties. It would be advisable, however to standardize the establishment of departments for the purpose of efficient intergovernmental cooperation. 5.5.2.4 Decentralized County Structures
In order for County governments to effectively deliver services to their residents, County administration must be decentralized to the lowest level possible. This should also apply to political units. The alignment of administrative and political units is to facilitate the supervision of the work of administrative functionaries by the elected representatives of the people. The question the how many units of decentralization should be established below the County. The County consultations recommended creation of up to six decentralized units, ranging from the village, sub-location, location, ward, district and constituency. There was an apparent consensus that districts/constituencies should be the subCounty unit with the rest of the units below it. It was particularly argued that the village and locations are the basic units for delivery of services because they are closest to the people. It was also proposed that municipalities, County councils and town councils be maintained as decentralized units to facilitate revenue collection and for delivery of essential services to urban residents. The decentralised units need not be aligned to the current administrative units. It is proposed that counties decentralize to three units below the County, namely the subCounty and the ward County government administrative and technical staff should be posted only to these two levels outside the county headquarters. The village elders, the assistant chiefs and the chiefs should support the County governments and their offices at the lowest services delivery points. At each sub-County, it is proposed that County Assembly members constitute themselves into a committee to supervise the County Executive at that level. Assembly members play the same role at the ward level under legislation to be passed by County Assemblies.
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Whether any County departments will be represented at each decentralized level will depend on the nature of the services. Some services such as health and agriculture are the most likely candidates for decentralization to the ward level. Others such as planning, housing or energy policy may not be decentralized at all. At each decentralized level of the County all staff will report to an administrative head who in turn will report hierarchically to the County. Over the medium to long term counties should develop professional cadre of staff. This should start with appointment on merit from the beginning and provision of competitive terms and conditions of service, including opportunities for skills development.
5.6
5.6.1
RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION

National Administration
Under the devolved system of government, the national government will continue to be represented at the County level. Several functions among them security, education, national statistics, sports, disaster management, public works, road traffic, registration of persons, environment, public investment, tourism development, among others will continue to be the responsibility of the national government at that level. Such national functions have been coordinated in the past by Provincial Administration on behalf of the Central Government. Provincial Administration is one of the departments in the Office of the President. Its origins can be traced to the colonial era where it was used by the colonial authorities as a formal mechanism to consolidate power. During this period, its main functions were to collect taxes, maintenance of law and order and pacification of the natives in the colony. It also provided judicial services and participated in legislative matters in Local Authorities. The Department was not provided for by the constitution and has been operating under a Presidential Executive order since the 1960s. The Department is now staffed by about 12,344 officers stationed in all counties, districts, divisions, locations and sub-locations of the Republic. Articles 262 (the Sixth Schedule) section 17 of Constitution 2010 provides that: within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution. It is therefore proposed that a process to restructure the current Provincial Administration in accordance with this Article be initiated. This is necessary to ensure that as it performs its functions it does not in any way infringe on the roles of County governments. The Provincial Administration should work with County governments in a cooperative manner for effective delivery of services to Kenyans. In the new constitutional dispensation, the national administration will have two roles in the County, one of direct implementation of the functions allocated to the national Page | 109
government by the constitution and another of exercising oversight on the County government as it implements national policies and legislation The restructured Provincial Administration will facilitate the Presidency, as the head of the National Executive, to fulfil, amongst other things, the Presidents responsibilities as provided by Article 131(2). These responsibilities are to:
1. 2. 3. 4.
respect, uphold and safeguard the Constitution; safeguard the sovereignty of the Republic; promote and enhance the unity of the nation; promote respect for the diversity of the people and communities of Kenya; and, 5. ensure the protection of human rights and fundamental freedoms and the rule of law. To restructure Provincial Administration, the President can apply Article 132 (3) (b) and Article 132 (4) (a) which empowers the him to direct and co-ordinate the functions of ministries and government departments; and to establish offices, respectively. This would be in line with the requirement that all state organs should where necessary provide services in all parts of the country (Article 6(3). The restructuring can also be done within the spirit of Article 189 (1) which requires that either level of government shall:
1. perform its functions, and exercise its powers 2. assist, support and consult the other level of government 3. liaise with government at the other level for the purpose of exchanging information, co-coordinating policies and administration and enhancing capacity
The Provincial Administration with its expertise and other resources is able to support the County governments. It could also provide a vital link between the national government and County governments by disseminating information and building capacity for policy and programme implementation. Both levels of government will require administrative support, especially during the transition period.
5.6.2
Functions the Proposed National Administration
It is proposed that Provincial Administration be restructured and named the national administration. In the context of the Constitution the national administration will perform the following functions:
1. National cohesion and integration: a. Promotion of nationhood and statehood; b. Conflict management and Peace building; c. Promotion of ethics and integrity; and, d. Promotion of national government image.
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2. Disaster management and mitigation. 3. Arbitration of disputes. 4. Civil registration: a. Births and deaths (occurring at home); b. Identification of persons for initial national registration. 5. Liaison between national government and County government: a. Sharing of information; b. Co-ordination and dissemination of national government policies and administration; c. Co-ordination and harmonization of national development programmes; 6. Co-ordination of national security; 7. Mobilization of citizens for national events; 8. Co-ordination of official state functions and provision of government reception services; and 9. Printing and publishing of Government documents
These functions are not exhaustive and may change depending on the final outcome of the restructuring. In the meantime options and time frame for restructuring should be given priority. Figure 5.3: Proposed Levels of the National Administration
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5.6.3
Proposed Structure of the National Administration
In terms of administration at the county level it is proposed that there be distinct administrative structures for the two governments that is the national government and the county governments in accordance with Article 6 of the constitution. Each administrative structure would primarily support the implementation of the functions assigned to the respective governments at the county level. The national government administrative structure would also facilitate the oversight role of the national government in the implementation of national policies and legislation. The county administration would be structured along the structure of the county executive. The national administration on the other hand will comprise of the restructured provincial administration. It is proposed that the restructured provincial administration be renamed national administration and that it be at 3 levels in order to accord with the county government as at three levels as shown in Figure 5.3. Ministries that have functions that need to be performed at county level will devolve to that level. The County administrator will oversee the implementation of national policies and legislation at the county level assisted by the sub county and ward administrators. Several options have been proposed on the structure of the proposed national administration. i. Option 1: is for the national administration to exist side by side with the county administration. This option proposes that national administration be represented at three levels by a county administrator at the county level, a district administrator at the sub-county and chief at the ward level. Under this option the county government would be able to assign some of its responsibilities under county government functions contemplated in function 14 of the county government functions. This would make it unnecessary for the county government to establish an administration at that level and also ensure there are no parallel systems at the point of contact with Kenyans. Under this option the chief would report to both governments although being a national government officer Option 2: The structure remains the same as in option 1 but the chief is part of the county administration and therefore the national government does not have representation at this level but its functions are carried out through assignment to the county administration. Option 3: national government is only represented in counties by technical officers and the heads of the technical units working and coordinating with their equivalents in the county departments. This option does not contemplate an administration for the coordination of national government functions.
ii.
iii.
Consultations are going on in terms of these proposals, taking cognisance that the CoK 2010 in Schedule 6, Part 4, Article 17 provides that the national administration shall, within five years, restructure the system of administration commonly known as Page | 112
the provincial administration to accord with and respect the system of devolved government.
5.6.4
Security Management in the Counties
Although the constitution allocates the function of security management to the National Government, it is important to provide for a forum where the County Government can discuss their security challenges and present them to the relevant National security organs for appropriate action and feedback. The National Police Service Bill provides for a County Policing Authority which will be chaired by the Governor with the mandate to identify security priorities and challenges within the County and advise the National Security Organs at the County for appropriate action.
OUTSTANDING ISSUES Should we have another level of government below the location sub-location / village level? Exact role of national / county governments in security matters at the county level
Because national security is broader than policing, it is important for national security architecture to be developed within the framework of the National Security Council to provide a platform for the County Government to discuss their security challenges with the National Security Organs in the County. This platform should be organized in the spirit of community partnership with police/security organs which are critical in effective security management. It is therefore recommended that the National Government initiates consultations with key national security actors so as to develop a national security bill and architecture that provides for a partnership between the National Government and County Government in the management of security in the county. The security architecture envisaged in the County should provide for a policy organ chaired by the Governor and an operational security organ to take operational decisions and action. 5.6.5 Transition Issues
The importance of administrative decentralization is that it would: lead to alignment of administrative structure to assigned functions ensure accountability of staff to County governments, and by extension to the local people promote development of capacity relevant to local needs encourage deeper civil service reforms
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On taking office after the first election under the new Constitution, the Governor and the Deputy Governor will be the only executives and indeed employees of any County government. They will thereafter nominate the other executives, who after confirmation by the County Assembly will assume office. It is only then that that task of establishing the County public service will begin. In the meantime delivery of services to the public has to continue, except now the services will be provided by employees of ministries and by those of councils some of which may not be in existence. This state of affairs elicits many questions, for example. Who will be responsible for the public servants performing County during the transition period? In particular, who will the workers under the LAs report to in the absence of the Councils? What happens to excess staff at the National Government level as functions begin to be devolved to counties?
Several options can be contemplated. In the case of national government officers working within counties they may continue performing their functions and report as usual until the County government is ready to assume their assigned functions. Under the circumstances the line of reporting is clear and services delivery will not be interrupted. The other option is for those officials performing national functions according to the Constitution to report to the national government; while those performing County functions report to the Governor, but continue to be paid by national government. This would give the county executive committees almost immediate control of some affairs of their counties. The case of officials of local authorities is more complicated since some of the councils will have ceased to exist. Several scenarios could be contemplated. One is the appointment of an independent body by the national government to make recommendation on how the case of the officers of local authorities will be dealt with. Salaries and other emoluments and benefits would continue to be met by resources allocated by the government through the ministry responsible for County. This would avoid a situation where officers remain in office without political supervision. The drawback with this option is that it may not be politically acceptable. The other alternative is for the LA staff to remain in place and the chief officers to report directly to the County executive. This would require that the personnel emoluments for this staff are met by the national government over the transition period. To address these transitional issues the following is recommended:
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The Ministry of State for Public Service should initiate a process to address to anticipated restructuring of public service to reflect the needs of the national government after the devolution of functions. The ministry should also undertake a projection of human resource requirements for counties that would be necessary to deliver the devolved functions. These activities should follow the costing of functions by ministries and departments and a staffing audit by MoSPS of all public service staff. Staff audit should lead to staff retraining and capacity building and initiation of a program that would assist in building capacity of County government staff. A similar process should be initiated by the Office of the Deputy Prime Minister and Ministry of Local Government. The objective here would be to undertake a thorough audit of staff of each LA to ascertain their numbers and skills. This will assist in future placements and payroll management, and capacity development. The government should set up a body whose primary objective will be to oversee the transition process. Some of the functions of this body would be to undertake an audit of assets and liabilities of local authorities and to ensure appropriates registers are opened for all identified assets. It would also ensure that all asset registers of ministries are kept properly and are up to date, at the initial stages work with County governments in the transfer of assets to counties and throughout the transition period assist County governments remove any roadblocks they may face. The government should also create a vehicle into which the liabilities of LAs will be transferred.
5.7
CONCLUSIONS
It has been shown that county governments unlike the current local governments have independent powers to decide on their administrative structures, including exclusive control of its public service for delivery of the assigned functions. The structure is expected to be designed around functions that the counties identify as important for their development. The structure is also expected to be cascaded to lower administrative units, primarily the sub-county, the ward and the village where necessary. It is proposed that during the transition, before county governments appoint their own staff national staff is retained in counties. This is necessary to ensure that service delivery is not interrupted. Thereafter county governments through their Public Service Commissions will appoint their own staff under the norms and standards provided by Article. In the case of the Provincial administration and the security arrangements in counties, it is proposed that:
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A taskforce is established to restructure the system commonly known as Provincial Administration. An evaluation exercise is undertaken to establish the optimal staff establishment after the proposed restructuring. All the relevant legislation which impact on Provincial Administration are reviewed and harmonized. The Security Bills currently under preparation should incorporate the roles of the proposed restructured Provincial Administration and County governments.
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6
6.1
FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY IN KENYA

INTRODUCTION
Realization of developmental devolved government in a manner that supports the overall objectives of the Constitution of Kenya, 2010 will require efforts aimed at building new and strengthening existing institutions. The devolution effort will require a clear and transparent effort to assign functions, competencies and responsibilities to multiple tiers of government and administration, non-state actors and private companies to fulfil them in a manner that delivers the requisite public services. These multiple sets of acts must be configured to work in a coherent, coordinated and cooperative manner through clear definition and appropriate assignation of functions. This is key to effective and efficient utilization of resources for public service delivery. The way in which functions, competencies/responsibilities80 81 82 are structured and organised affects not only what lower levels of government do, but also how well each level of government and the public sector as a whole actually responds to the needs of the citizenry. One of the key challenges in respect of public service delivery under the past constitutional dispensation was the lack of clarity in assigning of responsibility as well as lack of awareness on the part of citizens as to exactly which level of government was responsible for a service. A key unfortunate consequence of this was discordant policy frameworks, laws that said different things about the same issue, and multiple institutions competing for limited financial, human and other resources to deliver the same services. This resulted in lack of adequate or non-delivery of public services. Those that were delivered were achieved at high costs to the citizens. Key issues in respect of service delivery based on the functional assignment are as follows:
1. Achieve clarity in the functional assignment through unbundling them and assigning competencies between the national and county governments; 2. Determine the service level gaps in respect of each competency; 3. Determine the expected performance level; 4. Assign funds to levels of government according to their service delivery mandates; 5. Identify the capacity constraints; 6. Develop a short, medium to long term capacity building programme 7. Review the organisation of national government (ministries/departments) to reflect the optimal assignment of functions as anticipated under the CoK 2010
The issues involved in closing the service delivery gap revolve around understanding the existing service level gaps at the national, county and between county levels. Page | 117
Based on nationally accepted standards, a county level of service gap analysis is required. The competencies to close these gaps must have assigned funding, which must assure optimal vertical and horizontal balancing to avoid political and macroeconomic instability.
6.2
6.2.1
PRINCIPLES OF FUNCTIONAL AND COMPETENCY ASSIGNMENT

General Principles for Functional Distribution
It is important to note that experience elsewhere suggests that functional distribution is achieved through provisions of a constitution and clarified through laws and regulations. Where this is not neatly done, the option is for courts to make rulings on matters of functional and competency distribution. This route is expensive and messy to the extent that courts are not always focused on broader policy matters, but in sorting out the issue under litigation. Decisions by courts may not always yield optimal outcomes. It is imperative therefore that, to the extent that is feasible, for matters of functional and competency assignment to be sorted out on the basis of a constitution, but also through clear policy, laws and regulations which are more amenable to dealing with evolving circumstances. Over the years, federal and or devolved systems have developed a number of general principles which guide the assignment of functions to different levels of government. Some systems use one or two of these principles in their assignment of functions. But many systems draw from and combine all these principles in their approach to the assignment of functions. There is no rigid rule regarding these principles and each country may have its own reasons for settling for a particular approach. Again, many leave the door open and over time may draw from these principles in re-adjusting the functions. Some of the principles may be drawn from whenever negotiations are held for transfer of functions. 6.2.1.1 Principle of Subsidiarity
The first principle guiding functional assignment is the subsidiarity principle. Subsidiarity demands that functions be assigned to that level of government that would best perform them. Further, that if a function is best performed at the lowest level of government, then, it should be assigned to that level of government. Only those functions which cannot be effectively performed by the lowest level of government should be left to a higher level of government. It is on the basis of this subsidiarity principle that it is argued that policy formulation and national standards setting functions are best performed by the national level of government while the implementation of the policies and the standards is best done by the lower levels of government. This principle should become useful when levels of government are making decisions regarding the functions they may wish to transfer to another level of government.
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In the Kenyan case this principle is implied in Articles 174 200 of the Constitution which pertain to the creation of devolved governments and the objects of devolution. Specifically, Article 174 includes the objective of giving the power of self-government to the people and enhancing their participation in making decisions (clause c) and recognizing the right of communities to manage their own affairs (clause d). Furthermore, Article 176(b) states that county governments should decentralize their functions and service delivery to the extent that it is efficient and practicable. 6.2.1.2 Transferability of Functions
The second principle guiding functional distribution is the recognition of the concept of transferability of functions from one level of government to another. It is recognized that there is no permanency in the assignment of functions. Because of this, it is possible to have one level of government transfer some of or aspects of some of its functions to another level of government. Such transfer is not done by the constitution but by the agreement of the different levels of government. The transfer could be by agreement or by national legislation. Sometimes the legislation transferring the functions may be preceded by an agreement. Article 187(1) of the constitution recognizes this principle and provides for transfer of functions. It notes that a function or power of government of one level of government may be transferred to another level of government by agreement between the two levels of government. Such transfer would be necessary first, if the function or power would be more effectively performed or exercised by the level to which it is being transferred; and second, if the transfer of the function or power is not prohibited by the legislation under which it is assigned by the fourth schedule. However, because the transfer is not by the constitution, the function constitutionally remains the function of the level of government to which the constitution assigns it. This means that the transferring agreement can be later cancelled or legislation amended or repealed and the power reverted to the level of government to which the function or power is constitutionally assigned. In this respect, article 187(2)(b) points out that if a function or power is transferred from one level of government to another level, constitutional responsibility for the performance of the function or exercise of the power remains with the level of government to which the function is assigned by the constitution in general, and the fourth schedule in particular. A most important element of transferability of functions is the need to ensure that functions are not transferred without resources. Since resources follow responsibilities, any transfer of responsibilities must be accompanied by the necessary resources to be used to perform the functions. In this respect article 187(2)(a) recognizes this need. It requires that if a function or power is transferred, from one level of government to another level of government, arrangements must be made to ensure that the resources necessary for the performance of the function or
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exercise of the power are transferred to the level of government to which the function is being transferred. This is a very important factor to bear in mind to avoid the possibility of one level of government undermining the ability of the other to operate by simply transferring to it functions without the accompanying resources. The importance of this must be underscored given our countries experience with the independence constitution which was rendered dysfunctional through this kind of mechanisms. 6.2.1.3 Policy Formulation, Regulation, Standard vis-a-vis Implementation
The third principle draws a distinction between policy and standardization functions on the one hand, and implementation functions on the other. In an approach that follows this principle, the national level of government is assigned and performs the functions of formulating policy and setting national standards; while the sub-national level and any other lower levels of government are assigned and perform mainly implementation functions. In such systems, more legislation is done at and by the national level of government while the sub-national level deals with the implementation of the legislations. Ordinarily, the legislations are done in very broad terms leaving room for each of the sub-national constituent units to be unique and different when filling in details and elaborating the legislations. Germany is one of the countries which follow this approach. An important feature of a country that follows this approach is a bicameral system of the national legislature. The second chamber of parliament is normally representative of the constituent units to provide them with a forum for participation in the legislative process at the national level. This gives them an opportunity to contribute to the formulation, debate and enactment of legislation that takes in to account the concerns and difficulties of implementation that are experienced by the constituent units. An analysis of the fourth schedule lists of functions of both the national and county levels of government indicates that to a large extent, this principle has been followed in the assignment of functions. For instance, in the areas of agriculture, housing, energy, veterinary services, health, education, protection of the environment and natural resources, land planning, consumer protection, the national economy and planning, labour, monetary and currency matters as well as language, the national level of government has been assigned the function of policy formulation and setting of national standards. Although in the area of health the national government has been assigned the function of running national referral health facilities, the main function in the health sector is to formulate health policy and to set the health standards. Similarly, even though in the education sector the national government has been assigned the function of primary and secondary schools as well as the colleges and universities, its main role in education is the formulation of education
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policy, the setting of education standards, curricula, examinations and the granting of university charters. On the other hand the analysis of the lists shows that the county level of government has been assigned the function of implementation of the policies and standards formulated and set by the national level of government. In agriculture for example, the county governments are supposed to engage in the actual agricultural development in the areas of crop and animal husbandry, livestock, plant and animal disease control and fisheries. In the health sector the county governments have been assigned the bulk of the health responsibilities. They will be responsible for the county health facilities and pharmacies; ambulance services; promotion of primary health care; licensing and control of undertakings that sell food to the public; veterinary services; cemeteries, funeral parlours and crematoria; and refuse removal, refuse dumps and solid waste disposal. Largely therefore, this particular principle can be said to have played a major role in the assignment of functions in the new constitution of Kenya. 6.2.1.4 Foreign Affairs, Defence and Macroeconomic Policy
The fourth principle guiding functional assignment draws a distinction between functions which deal with foreign affairs, defence, and macro-economic policy and management on the one hand; and social functions on the other. Whereas the national level of government normally deals with foreign affairs, defence, and macroeconomic policy as well as currency functions; the sub-national levels of government are normally assigned what are referred to as social functions. Social functions include health care, education, housing, agriculture and security. They are sometimes referred to as the welfare functions. And it is argued that these welfare functions being those that touch on the day to day lives of the people are better performed at the local level where the people live and operate their day to day affairs of survival and self-preservation. The national level of government which is normally far removed from the people is better placed to perform those functions that may appear to be a bit removed from the people. These are the policy formulation and regulation functions as well as the national standards setting functions. An analysis of the lists of functions set out in the fourth schedule indicates that to a certain extent this principle was taken in to account in the assignment of functions. The first part of the list assigns to the national level of government the functions of foreign affairs, foreign policy and international trade; immigration and citizenship; national defence and the use of the national defence services; national economic policy and planning; and monetary policy, currency, and banking. On the other hand 6.2.1.5 Categories of Functions
The fifth principle of functional assignment recognizes three categories of functions. These are exclusive functions which can be performed by only one level of Page | 121
government; concurrent functions which can be performed by two or more levels of government; and residual functions which reside with the original level of government which existed before the creation of the other levels of government. The concept of exclusive functions or powers involves the assignment by the constitution of certain powers and functions to a level of government exclusively. The national level of government may be assigned certain powers in which the subnational levels cannot interfere or share. At the same time the sub-national level may also have its exclusive area in which the national level cannot interfere or share. In systems which overemphasize exclusive functions, the effect is to reinforce the idea of autonomy at each level of government. This also has the effect of making it clear which government is accountable for policy in that functional area. In practice, however, even where most powers have been assigned exclusively to one level of government or the other, experience has shown that overlaps of functional jurisdiction are unavoidable because it is virtually impossible to define watertight compartments of exclusive jurisdiction. The concept of concurrent functions involves the idea of joint tasks and or overlaps in terms of functional jurisdiction. There may be many cases in which a certain aspect of an issue is assigned to the national level of government while another aspect of the same issue is assigned to the lower level of government. For instance certain aspects of the education function may fall under one level and others fall under the jurisdiction of another level. A BOX 6.1: COUNTY VISIT SUBMISSIONS ON good constitutional design in CATEGORIES OF FUNCTIONS this case must clearly specify which level of government will National government functions should not prevail in the event of conflict undermine County governments functions The Chief Administrator of the County shall be between the two levels of the Secretary to the County Executive government. For example, in A sub-county administrator to be in charge of the event that the two levels administration at the sub-county level and a legislate on the same matter ward administrator at the ward level but in different ways so that there are two laws governing the same matter but which are in conflict or contradiction with each other, it must be clear which one of the two laws will take precedence over the other. The concept of concurrent functions is necessitated by the inevitability of functional overlaps and the reality of shared nature of governance which requires that in certain matters decisions ought to be shared and therefore that there must be some areas of shared jurisdiction calling for collaboration. Scholars have associated concurrent functions with a number of advantages. First, concurrency provides a measure of flexibility in the assignment of powers and functions, enabling the national Page | 122
government to postpone the exercise of potential authority in a particular field until it has become a matter of national importance. In the meantime the sub-national levels of government are left with their own initiatives. Secondly, national government may use concurrent BOX 6.2: COUNTY VISIT SUBMISSIONS ON jurisdiction to set TRANSFER OF FUNCTIONS national standards for the whole country Defined recruitment and vetting policy in place Functions for county governments be transferred after while giving the election constituent unit Legislation should provide framework for transfer of governments room to functions legislate the details and No transfer of services without resources to deliver services in a Mechanisms be created through legislation for the transfer manner more sensitive of functions to counties with capacity e.g. education COUNTY VISIT SUBMISSIONS ON FACTORS TO to local circumstances. CONSIDER BEFORE TRANSFERRING A FUNCTION TO A Thirdly, concurrency COUNTY also avoids the necessity or A headquarter in place with adequate infrastructure enumerating (buildings) complicated minute Adequate human resources Governing policies subdivisions of An oversight committee individual functions to A strategic plan with within the goals of Vision 2030 be assigned exclusively Adequate infrastructure, to one level of Financial resources, government or Administrative structure Functions to be retained by national government only another83. The concept of residual functions or powers refers to those functions that are not expressly assigned by the constitution to either level of government. It is normally necessary to know in which level of government such powers reside. In this case, it is important to note that the greater the enumeration and assignment of functions and powers by the express provisions of the Constitution the less significant the issue of residual powers. Therefore, to avoid the conflicts that quite often arise when a determination has to be made about residual powers, a good constitutional design should seek to expressly enumerate and assign most of the powers in and by the constitution. In most cases the level of government in which residual powers reside is determined by the manner in which the devolution system in a given country emerged. In countries whose devolution system emerged in an integrative manner, by various
when the county government has failed in its delivery , there is uncontrollable conflict & state of emergency and there is misappropriation & mismanagement of funds
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independent units coming together to form a single country the system is referred to as integrative federalism or devolution. In such systems, it is the constituent units which agree to release certain powers to the national or union government they would have formed. The constitution in this case concentrates on specifying which functions are assigned to the national or union government. In this case the functions which the constitution has not expressly assigned to the national level of government are residual powers of the constituent units. On the other hand, in countries where the system emerged in a devolutionary manner, by unitary country dividing itself into various sub-national units and the national government releasing certain powers to the sub-national level of government, the system is referred to as devolutionary federalism or devolution. In such system the constitution concentrates more on spelling out functions of the constituent units. Therefore, any powers not expressly assigned by the constitution to the sub-national level of government are residual powers of the national level of government. In the Kenyan case, it will be important to create a legal framework for further and continuously clarifying the assignment of exclusive, concurrent and residual functions in the cooperative system of government adopted.
6.2.2
Principles and Criteria for Unbundling Functions and Competencies
It has been argued that allocation of public functions and services is specified by the assignment of expenditures and responsibilities for service delivery and is not just a simple legal action of allocating public services from one level or unit of government to another84. They say that allocation of public functions can be redesigned in many ways, and all require several legal, fiscal, and institutional criteria, which if they are not met, then public service delivery will be inefficient. A summary of global experience points to the following principles that would guide effective formulation and assignment of functions, namely85: recognizing when functions need to be unbundled; avoiding unwanted concurrency or giving parts of functions that are not suited for the government level in question; to the extent possible, keeping a function whole, while retaining exceptions that help to retain a holistic formulation of functions. This is important from two perspectives. First, it makes government more accountable and efficient and second it makes lists of functions more readable; avoiding the framing of functions as projects functions are the underlying and stable mandates that give rise to projects/programs that change considerably over time; avoiding limiting jurisdiction by value of projects/activities; procurement should be wrapped with its substantive function; management functions should be implicit or mentioned as a global reference;
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avoid the use of the term scale or even level as explanatory terms as they lead to multiple interpretations or simply do not add any information; functions should not rigidly flow from pre-existing organizational mandates to avoid locking in pre-existing inefficiencies, overlapping or questionable roles/functions and bloated structures.
Over the years devolved systems have developed a number of general principles which guide the assignment of functions to different levels of government. Some systems use one or two of these principles in their assignment of functions. But many systems draw from and combine all these principles in their approach to the assignment of functions. There is no rigid rule regarding these principles and each country may have its own reasons for settling for a particular approach. Again, many leave the door open and over time may draw from these principles in re-adjusting the functions. Some of the principles may be drawn from whenever negotiations are held for transfer of functions. In the Kenyan case, Article 186 and Schedule 4 provide for assignment of functions and powers between the national and county governments. However, this distinction is not always clear and has the potential for tying up governments in disputes that would detract from actual delivery of services or could lead to wasteful expenditures. It will therefore be important to ensure that there is clarity in terms of which functions are exclusive, concurrent and or residual in the Kenyan case. Annex 4 provides a provisional assessment of the assignment of these functions between the national and county governments. It is also important to note that some functions are part and parcel of the assignation process, but may be considered residual functions. For instance, the issue of procurement or supply chain management may be considered a residual function, and therefore a function of the national government. But it is fully expected that county governments will have to procure in order to deliver their services. The key here lies in unbundling of the procurement or supply chain management function so that the national government is responsible for setting of norms and standards, while the actual procurement is done by counties. The import of this observation is not on the specifics, but rather that, beyond the provisions of the CoK 2010, there will have to be a negotiated process leading to the actual assignment of both devolved and delegated functions to both levels of government and their agents.
6.3
6.3.1
FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE

Lessons from Theory and Practice
Function assignment (also referred to as expenditure assignment) is the first step in designing fiscal decentralization arrangements for any country. The golden rule of fiscal decentralization is that funding should follow function (Bahl 1999) and so the first emphasis is on identifying which functions are to be devolved, and what they Page | 125
cost. Fiscal decentralization literature includes principles that should inform decisions about what functions should be devolved to each level, but is it less concerned with theorizing how those decisions should be made. In counties with a long history of devolved government, the distribution of functions will have developed over a long time, with the result that adjustments occur mainly at the margins. In this environment issues of function assignment usually arise in the context of considering whether responsibility for a specific function (like quarantine, or hospital services) should be shifted from one level to another. The concept of function assignment as a formal process of devolution has developed fairly recently, as a number of countries (beginning with South Africa and Indonesia) have undertaken big bang style decentralization, where a highly centralized government system is decentralized across the board. This approach involves many sectors being devolved at the same time, and is considerably more complex. Recognising this complexity, a number of these countries have adopted formal processes for managing the process of defining functions and implementing the process of devolving them.
6.3.2
Consequences of Ineffective Functional and Competency Assignment
In a devolved system of government functions are allocated between the various levels. These functions are classified as being exclusive, concurrent/shared or residual. The clear distribution of functional areas is important for effective service delivery86. This is primarily to limit conflicts and the attendant litigation as well as avoid waste amongst others. Table 6.1: Dealing with lack of clarity in functional assignment between different levels of government
Challenges arising from lack of clarity in functional assignment Duplication of services Ineffective services No service delivery Unfunded services Increased contestation Wastage in funds expenditures Strategies to address them Judicial interpretation Statutory definitions Administrative definitions Negotiated definitions National definitions Local government definitions
Source:
Authors construct from various sources
Where functional assignment is not clear, effective public service delivery is affected through duplication of services, ineffective services, lack of service delivery, unfunded services, lack of accountability, and increased contestation over who is responsible for what. Table 6.1 summarizes the challenges arising out of inadequate functional assignment and the strategies that countries have adopted to deal with the same.
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6.4
6.4.1
FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA

The Constitutional Provisions
The preamble of the CoK 2010 as a basis for enacting it, says that the people of Kenya, would be respectful of the environment and demand a government based on certain essential values. This declaration is crucial to determining how services will be delivered and which options should be chosen in doing so. Table 6.2 summarizes the key provisions of the CoK 2010 in respect of delivery and access to services. Table 6.2: Constitution of Kenya, 2010 Provisions relevant to Functional Assignment and Public Service Delivery
ARTICLE Preamble 1 (4) (a) and (b) 6 (3) 10 11 (2) (c) 12 (1) THEME Basis for public service delivery Sovereignty of the people to be exercised at national and county levels Devolution and access to national services National values to be reflected in all activities of government Intellectual property rights Entitlements of citizens IMPLICATIONS FOR PUBLIC SERVICE DELIVERY Basis and goals for public service delivery Main platforms for public service delivery. They must have clear functions for service delivery Duty on all national state organs to ensure access to its services nationwide based on appropriateness and nature of service Basis and goals for public service delivery Protection of indigenous property rights whilst delivering public services Right of citizens to public services subject to clearly defined constitutional provisions Need to be clear about what the limits of the constitution are in respect of public services Sets the basis for social, economic and cultural rights Need to understand what these means for physical and economic access conditions to public services Circumscribes the level of access and acceptable standards and norms for public service delivery
19
Rights and fundamental freedoms of every citizen of the Republic of Kenya Application, implementation, enforcement, authority of courts and limitations of Bill of Rights to all state organs and all persons, public or private and also the basis for interpretation of Bill of Rights Right to life Equality and freedom from discrimination Human dignity Freedom and security of the person Slavery, servitude and forced labour as well as labour relations Privacy of every person Freedom of conscience, religion, belief and opinion Freedom of expression and access to information Clean and healthy environment
20; 21, 22, 23, 24, 25
26 27 28 29 (f) 30 (2) 41 31 32 (3) 33 (1) (a) and 35 42
Could be interpreted to mean that any form of public service delivery that threatens the right to life is unconstitutional Public services shall be delivered in an equitable and nondiscriminatory manner Public services shall be delivered in a manner that recognises and protects human dignity Public services should ensure people are not subjected to cruel, inhuman or degrading conditions Public services should not be delivered using forced labour In delivering public services, information collected from citizens must be protected and not divulged in an unauthorised manner No one may be denied access to public services on account of their beliefs or religion Citizens have a right to access information used to deliver public services Delivery of public services shall be done in manner that ensures a clean and healthy environment both during production and provision Creates an obligation to the state to deliver a minimum acceptable bundle of services to the citizens Need to define what this minimum bundle of services is and the acceptable norms and standards for delivery of these services Need to assign the required level of government; organisations, funding to deliver Public services must be delivered that are of reasonable quality, including access to information to facilitate effective utilisation by consumers of those services; protection of their health and
43
46
Rights to highest attainable standard of health care, health care services and reproductive health care; adequate housing; reasonable standards of sanitation; freedom from hunger; clean and safe water; social security; education; emergency medical treatment Obligations on providers of goods and services to consumers
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ARTICLE 47 and 50
THEME Fair administrative action and Fair hearing
53, 54, 55, 56, and 57
60 and 66
Specific application of the Bill of Rights to children, persons with disabilities, youth, minorities, marginalised groups and older members of society Principles of land policy as well as the regulation of land use and property
IMPLICATIONS FOR PUBLIC SERVICE DELIVERY safety and to compensation for loss and injury Sets the ground rules for processes, procedures and administrative interventions which should promote speedy access, be efficient and effective and provide for rights of review to decisions in a fair manner Lays the basis for affirmative action, where required, in delivery of public services for these groups of the citizenry
Public services in most cases have to be landed and the principles set out under this article define how such land would be accessed and used A key institution in defining public service delivery frameworks land use policy; registration of titles; taxation on land; oversight of land use planning Public services in most cases have to be landed and the principles set out under this article define how such land would be accessed and used including measures for protecting the environment and natural resources including requirements for environmental impact assessments and environmentally sensitive processes, procedures and technologies Framework of personal and public behaviour and action by public servants in delivering public services bring honour to the nation; promote confidence to the public service Where public services are to be delivered through elected institutions, the framework for these processes is established here Legislative authority to alter boundaries, functions as well as define the nature and scope of policies and laws Enact laws, determine allocation of national revenues, appropriate funds for expenditure by state organs, exercise oversight over state organs that are key to public service delivery Represent counties, protect interests of cuties and their governments, deal with matters concerning counties, determine allocation of national revenue amongst counties (217), oversight over national revenue allocated to county governments, oversight of state officers in accord to Article 145 Size, cost and effectiveness of the legislature with implications on the amount of national revenue going to county governments Size, cost and effectiveness of the executive with implications on the amount of national revenue going to county governments Size, cost and effectiveness of the legislature with implications on the amount of national revenue going to county governments Ensure equity in sharing of national resources, promote national unity, give voice to local communities; promote accountability and citizen participation in governance of the nation; give powers of self-governance to communities; and ensure proximate, easily accessible service delivery that will facilitate socio-economic development in a manner that protects the rights of the minority and marginalised Implies that County Governments will be the fulcrums around which public services can be decentralised. Central Government will move all services that must be decentralised through County Governments County governments shall have reliable sources of revenue to enable them govern and deliver services effectively What happens, if a County Government does not have adequate revenues? Link this with nationally defined standards and norms versus existing county government service levels? What does this mean for asymmetrical devolution anticipated under the Sixth Schedule, Article 15? Means that there shall be a county government responsible for service delivery in each county and that each county shall
61
Establishment and functions and National Land Commission Kenyas environment and natural resources and their utilisation
69, 70, 71, 72
73 to 80
Leadership and integrity of public servants
81 to 89
Electoral systems and processes including delimitation of electoral areas Role of Parliament Role of National Assembly
94 95
96
Role of the Senate
93 to 128
The Legislature its membership, structure and operations The Executive its membership, structure and operations The Judiciary its membership, structure and operations General purpose and structure of devolved government
129 to 158
159 to 173
174 to 200
174 (h)
Facilitate decentralisation of national government functions and services from Nairobi
175 (b)
Principles of funding public service delivery
176
County governments
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ARTICLE
THEME
183
County executive committees public service delivery responsibilities
IMPLICATIONS FOR PUBLIC SERVICE DELIVERY decentralise its mandated functions and competencies to the extent that it is efficient and practicable see also effect of the Sixth Schedule, Article 15 Size, cost and effectiveness of the county governments with implications on the amount of revenue available for actual public service delivery What happens when a service requires provision over an area larger than a county? County executive committee responsible for operationalising county and national legislation and report on the same to the county assembly Approval of plans and policies responsible for managing and exploiting county resources as well as development and management of its infrastructure and institutions Which are county level institutions? Key to assigning of competencies between the national and county levels of government as well as forming the basis for effective resource sharing as well as performance management Identify and clearly define which functions are exclusive; concurrent/shared and which are residual? Provides the framework for delegation of functions between the two levels of government, either way by mutual agreement, including the requisite transfer of resources Demarcation of boundaries. Key concern is the elimination of potential conflicts that may arise between political, administrative and functional (service) jurisdictions Sets up the basis for cooperation defines the intergovernmental relations arrangements including measures for dispute resolution Allows establishment of joint commissions / authorities key to dealing with services with cross-county spill over effects Provides avenues for mandatory and/or organised support and capacity building frameworks to county governments Provides for resolution of conflicts in respect of matters that are under the concurrent jurisdiction of national and county governments Concern that it could provide an entry point for the marginalization of county governments Provides for dealing with unreasonable action by counties, But reverse does not seem to be the case? Perhaps Article 191 (4)? Obliges county assemblies to facilitate public participation in the delivery of public services Establishes general framework of transferring resources to county governments to facilitate public service delivery Basket fund to finance public service delivery on the basis of clear laws and regulations Schedule 4 provides a function for disaster management by county governments. It establishes a Contingency fund for National Government, but none for County Governments.
185
Legislative authority of county assemblies
186
Assignment of functions between national and county levels of government
187
Transfer of functions between levels of government Boundaries of counties
188
189
Cooperation between national and county governments
190 191
Support for county governments Conflict of laws
196 201 to 231 207 & 208
Public participation Public finance provisions Revenue Funds for County Governments
Source:
Authors construct
Reviewing the public service delivery provisions in CoK 2010, it is apparent that there will be deliberate asymmetric devolution as anticipated under the Sixth Schedule, Article 15. This will be critical, given the diversity, both in the nature of the political jurisdictions and the characteristics of households, in allowing the application of diverse service delivery approaches to ensure the achievement of similar service levels in all counties. It is also clear that the provisions articulated under CoK 2010 given the policy innovations needed to effectively deliver services and remain faithful to it will produce an unintended decentralization of power and resources. This means that Page | 129
county governments will in many instances have responsibility for more functions and consequently more resources than, prima facie, envisaged. These must be, to the extent possible be anticipated and provided for in the institutional arrangements to operationalise county governments.
6.4.2
Assignation to the Levels of Government in Kenya
The constitution creates two levels of government and assigns each level specific functions and powers to perform and discharge. Article 186 and the fourth schedule are the main parts that address this issue of functional distribution. Sub-article (1) provides for the functions by making reference to the fourth schedule, which has two lists of the functions of both national and county levels of government. It states that except as otherwise provided by this constitution, the functions and powers of the national and county governments, respectively, are as set out in the fourth schedule. But it is important to note that some of the functions of the two levels of government can be found in other articles of the constitution. It is for this reason that article 186(1) begins with the phraseology that except as otherwise provided by this constitution,. This phrase recognizes that there may be other provisions of the constitution which assign functions to the two levels of government. For instance, the chapter on land by vesting land in different levels of government confers certain functions on them. By article 62(2)&(3) vesting certain land in county and national levels of government respectively, certain functions regarding administration and management of such land are assigned to these levels of government. Article 21 which deals with the implementation of the bill of rights may also be interpreted as conferring functions on both the national and county levels of government. The article provides as follows: 21(1) It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43. (3) All state organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities. (4) The state shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. These clauses place certain obligations on both the national and county levels of government and by so doing confer a certain measure of functions upon these two levels of government. They both have a duty as state organs to observe, respect, protect, promote and fulfil rights and fundamental freedoms, set out in the constitution, in general and the bill of rights in particular. Similarly, both levels of Page | 130
government are included in the phraseology of the state which is required to take legislative, policy and other measures, including the setting of standards to achieve the progressive realization of the socio-economic rights which are provided for by article 43 of the constitution. Indeed, looking at the functional distribution, one notices that the greater responsibility to provide socio-economic rights falls on the shoulders of the county government. The county level of government can therefore enact legislative edicts and take policy measures that can give effect to these rights.
6.4.3
The Overall Architecture: Modes, Roles and Structure
The CoK, 2010 while providing for functions for the national and county governments, also mandates them to further decentralize. Article 6 (3) imposes a duty on all national state organs to ensure access to its services nationwide based on appropriateness and nature of service. This access, as per Article 174 (h) suggests that County Governments will be the fulcrums around which public services can be decentralized. It is therefore entirely feasible that that then the national government is obligated to decentralize its functions, at least those they would choose to be deconcentrated, would be done through the county governments. Article 176 (2) compels every county government to decentralize its functions and the provision of its services to the extent that it is efficient and practicable to do so. Figure 6.1: Functional Assignment Architecture in the Constitution of Kenya, 2010
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Figure 6.1 suggests that both national and county governments can decentralize their functions through deconcentration or assigning agency tasks87. As illustrated in Figure 6.1, the national government for its exclusive functions will have a presence at the county and sub-county levels. This presence could be through the national ministries, state corporations and/or specific agencies. They could also, in accordance with Article 187, delegate or transfer the functions to the County Governments who would act as their agents. Finally, in a number of respects the national government has been assigned policy functions only while county governments have been given the implementation function. Counties have the function of actual production and delivery of goods and services to the Kenya people. A look at the agricultural, health, housing, planning, water, environment and roads indicate that the county governments have really power and will need to be taken seriously.
6.4.4
Unbundling of Functional Competencies
It is important to note that experience elsewhere suggests that functional distribution is achieved through provisions of a constitution and clarified through laws and regulations. Where this is not neatly done, the option is for courts to make rulings on matters of functional and competency distribution. This route is expensive and messy to the extent that courts are not always focused on broader policy matters, but in sorting out the issue under litigation. Decisions by courts may not always yield optimal outcomes. It is imperative therefore that, to the extent that is feasible, for matters of functional and competency assignment to be sorted out on the basis of a constitution, but also through clear policy, laws and regulations which are more amenable to dealing with evolving circumstances through effective unbundling of functions. Most countries also find that broad-based functional assignment similar to Schedule 4 in the 2010 Constitution is insufficient for assigning responsibility for the delivery of services that fall under a particular broad based head of power. Rather than assigning, for example, primary education to the lowest level of government, in practice, only certain components or service delivery functions are assigned. Hence another intervention of functional assignment is to unbundle services within sectors, particularly if the constitution or organic law does not define specifically what services are contained in an assigned sector, as is the case with Kenya. There are at least three dimensions to unbundling sectoral services. One is to recognize that services in most sectors include a variety of specific service tasks, sometimes involving multiple ministries. Each service activity associated with a sector should be identified and analysed. Second and as illustrated in Table 6.3, delivering a service involves a number of decisions, sometimes terms provision decisions, including how the service is to be planned, financed (e.g. from fees or
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general revenues), produced (e.g. public or private sector), and managed. As illustrated in Table 6.3, provision refers to responsibility for the delivery of the service. The second aspect is production which refers to the actual delivery of the service. This distinction is useful in facilitating effective delivery of the services through enhancing participation by various players as well as enhancing appropriate participation in the process of delivery. It is useful in the sense that it breaks down the broad functions into discrete activities critical to the delivery of a service. Table 6.3: Disaggregating the Competencies for Public Service Delivery
Classifying Competencies Elements Contracting Controlling Regulating Delivering Designing Financing Standard Setting Planning
Provision: Responsibility for the existence of a public service to which citizens are entitled Production: Refers to the actual delivery of a public service provides the window for the private and civil society to be enjoined in actual delivery
1. Which level of Government is responsible for which level? 2. How is coordination achieved? 3. How is conflict mitigated? 4. Is the same framework applicable across all counties? 5. What level of discretion should be provided for? 6. How is the balance between economic efficiency, public choice imperatives, sense of belonging to a community as well as institutional and political constraints to be achieved?
Source: Adapted from Parrado, 2005 Table 6.4: Suggested Definition of Competencies
COMPETENCY Policy Designing, planning and standard setting Regulating DEFINITION Sets out the reason why a service is provided The capacity of deciding the rules that determine the logistics of a service i.e. answering the questions of what, who, when, and how a service should be provided Rules that foster competition of economic and social activities and to protect consumers through operational rules; collective choice rules and constitutional choice rules Actual management of the service delivery under clearly set out conditions of performance, the standards and regulations that apply, how the service will be evaluated and sanctions to punish non-compliance with regulations and standards Encompasses monitoring, evaluating, inspecting and sanctioning from the basis of legality, efficiency, effectiveness, equity, achievement of other stated outcomes Covering the costs for providing the service through the budget, subsidising, awarding grants or offering loans
Delivering
Controlling Financing
Source: Adapted from Parrado, 2005 Some of these tasks or competencies may be reserved for the national government whereas others may be devolved to a lower level of government or the private sector / other non-state actors. Finally, decisions regarding which level of government are responsible for allocating funds to a service, i.e. budgeting, along with being responsible for producing the service must be made. Production decisions include responsibility over labour and non-labour inputs, overseeing and maintaining
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facilities, and constructing or reconstructing facilities. In sum, there is a wide array of combinations possible in the assignment process. Literature suggests that for a service to be effectively delivered there must be a policy defining why, where and in what quantity a service should be produced. To effectively meet the needs of the intended users, this service must then be planned for to a predetermined standard. This service must then be produced and distributed for acquisition by the users. Someone will then ensure that the designated service provider provides what was promised. Table 6.4 shows suggested definition of the competencies that would facilitate effective assignment between the different levels of Government and also enable a focusing of capacity building efforts.
6.4.5
Functional Distribution under the Constitution of Kenya 2010
The CoK 2010 has distributed the various functions between the National and County levels of government. Based on the interpretation of devolution as articulated in the CoK 2010, it is apparent that over the long term, counties will be the main service delivery points, while the national government will be tasked with national policy setting, regulation and standard setting. Based on this understanding, a Framework Paper to provide the basis for defining the functions, and assigning appropriate competencies between the two levels of government should be developed for implementation.
6.5
COSTING OF ASSIGNED FUNCTIONS AND COMPETENCIES
Once a clear understanding has been achieved as to which level of government will perform which function and/or competency, it will be important that these functions have costs of delivering them determined. This must be done in a coordinated manner, with clear consultations between the entities delivering and the budgeting units. This costing is key to ensuring achievement of the finance-follows-function imperative. In fiscal decentralisation literature these costs related to the expenditure assignments are key to ensuring that the function and/or competencies are meaningfully funded. Literature identifies a number of approaches to costing of assigned functions and competencies. These include the Norms or Minimum Service Standards Approach and the Production Function Approach. The norms of minimum service standards approach requires that national standards be defined. These would include detailed technical and policy goals. The costs of achieving these are then computed and these form the basis for determining expenditure needs. It has potential challenges in the sense that it creates incentives for sectors to set high standards in pursuit of resources and also, if poorly conceived, would allow devolved units to pass blame for poor delivery of services. The production function method is a normative method in the sense that needs are computed from the perception of those deciding as to what is the best way to deliver the function. In the production function approach; there is a Page | 134
need to define a service level that is expected. Next, conditions of production needs for that service level, for each county must be taken into account. It requires a very good and accurate data base as well as knowledge of service production possibilities and options. The costs could be computed by reviewing costs of similar functions in other countries and looking at the relative shares of devolved vis a vis national government expenditures on these functions. It is generally not a very accurate method. A second approach would be to use historical data, gleaned from existing institutional arrangements. It uses retrospective data to determine the monies that would be required to deliver the same services in the new devolved environment. It is dependent on their being good records of costs of service delivery in the pre-devolved period. The third approach contemplates a full bottom-up calculation of the costs. It is best applied where good costing data does not exist and there is a consensus on the desired functional assignment and service delivery standards. A fourth approach is a judicious combination of approach two and three. In this case previous costs from existing arrangements would be applied as a short term measure, while full bottomup costing is implemented in the medium to long term. Annex 5 provides a review of these approaches. Figure 6.2: Options for County Public Service Partnerships in Kenya
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6.6
ORGANIZATIONAL OPTIONS FOR EFFECTIVE SERVICE DELIVERY
Once a determination of the assignment of functions has been done and costs have been determined, it will then be required that a decision is made as to which mechanism to use to deliver the services. The issue at hand will be to determine which approach will deliver the service effectively, in respect of outcomes, while doing so at the lowest possible cost. There exist a variety of organizational options in service delivery strategies. These include public sector provision, private sector BOX 6.4: COUNTY VISIT SUBMISSIONS ON ORGANIZATIONAL OPTIONS FOR EFFECTIVE provision, community sector SERVICE DELIVERY provision, and public-private partnerships. The key Every constituency should be a sub-county Departments headed by a director answerable to the concern in respect of executive committee operationalization of the A County Service Commission in charge of hiring, firing counties is the manner in and disciplining staff County staff should be on permanent and pensionable which the public sector is terms with retirement benefits organized.
Current civil servants be absorbed by the county Structure of the County Public Service should borrow Figure 6.2 illustrates the from the structure of local authorities options available for public Cross border services should be under the National service delivery in terms of Government partnerships with the private Regional authorities to oversee the management of cross border services sector. These are the options County Public Service be structured, staffed and that both the national and managed by the national Public Service Commission county governments could in Employment of support staff be delegated to county government addition feasibly use to Equal representation from counties of cross border deconcentrate delivery of service organisations public services in a manner Effective health service delivery by counties Children to self-advocate on issues through clubs on that is efficient and effective. radio, TV, children magazines and during sports A key question would be the Establish channels for children to access quality services interface if any with the and report abuse national administration and the embedding of mechanisms for effective citizen participation. One option is the establishment of central government offices in counties to implement national policies on behalf of the national government, where these are not delegated to county governments. Administrative coordinating mechanisms would need to be put in place to avoid conflict with county governments when legitimately executing their mandates.
In respect of citizen participation, their participation in the election of service boards as well as through referenda on key decisions, establishment of citizen juries as well Page | 136
as rights to comment on service delivery plans should be considered. Another question to answer is, whether in respect of public service delivery, county governments have exclusive jurisdiction. Can the national government create under Article 184 create cities, municipalities and other urban areas within counties?
6.7
CONCLUSIONS
Functional responsibilities are what role players governments at all levels and nongovernment institutions are expected to do in the process of delivering a countrys public services. Clarity in this framework is key to effective identification of and allocation of other resources such as staffing and financial resources. Where functional assignment is not properly done, public services will be inefficiently provided and scarce resources inappropriately utilized. A major consequence of this lies in the resultant lack of competitiveness of local and sub-national economies as well as provision of public services in a manner that is unresponsive to the welfare needs of citizens. It can and usually exacerbates lack of inclusiveness and can over the long term act as a threat to national cohesion. Figure 6.3: Implementation of the Framework Policy Paper on Functional and Competency Assignment in Kenya
The Constitution of Kenya, 2010 has made major strides in responding to the nations governance challenges. This notwithstanding, the assignment of functions to the national and county governments through other provision of the CoK, 2010 and Page | 137
especially the Fourth Schedule point to the need for a unifying framework for the progressive transfer of functions. It is therefore proposed that a Framework BOX 6.5: PROPOSALS FOR ANCHORING THE FUNCTIONAL AND COMPETENCY ASSIGNMENT Policy Paper on Functional PROCESS IN KENYA and Competency Assignment be developed to 1. Develop a DEVOLUTION BILL to incorporate provisions providing for: act as the reference point for a. Progressive, dynamic transfer of functions and efforts aimed at transferring competencies between the various levels of functions in government. government b. Define the criteria for transfer of functions to This will be completed by include: 31st May 2011. i. When a function can be transferred As illustrated in Figure 6.3 c. Deal with the issues related to the management of concurrent functions and to avoid a multiplicity of d. Conditions and mechanisms for transfer of uncoordinated efforts across functions including processes the public sector, it is e. Obligatory/minimum service levels or standards proposed that the Executive f. Performance standards and recourse lead a unified process of mechanisms g. Mechanisms for on-going adjustments in distribution of functions, functional assignment to take into account competencies and emerging circumstances responsibilities between the 2. Costing of assigned functions for the different levels of governance national and county 3. Ensure that the COUNTY FINANCIAL governments in the first MANAGEMENT BILL or the ORGANIC PUBLIC FINANCIAL MANAGEMENT BILL ensure that there instance. This process is fit between assigned functions and funding should be, in the first phase, mechanisms, including mechanisms for ensuring accountability be largely administrative 4. Review of the Kenya Joint Assistance Strategy and guided by the Cabinet (KJAS) to ensure that development partners Committee on allocate their resources (funds, technical assistance) in a manner that responds to and Implementation of the respects the functional assignment Constitution as the final policy decision point. This committee will be supported by a mirror committee of Permanent Secretaries, who will in turn work through a Technical Working Group (TWG). The TWG will guide actual implementation through sectorally defined functional and competency assignment teams (FACTs). The main implementation document for these teams will be the Framework Policy Paper on Functional and Competency Assignment and their main outputs will be Draft Sector Functional and Competency Assignment Policy Papers that will be cascaded up to the Cabinet for approval. This will form the principal basis for
ii. Period of transfer
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transfer of functions in the public sector. These papers should have been completed and approved by Cabinet by 31st December 2011.
SOME OUTSTANDING ISSUES Finalisation of Functional Assignment Strategy Paper Determination of the approaches for costing public services Preparation of Transition Guidelines
In order to anchor the process and to accord with good international practice, it is proposed that the Devolution Bill be formulated to incorporate matters pertaining to transfer of functions.
In addition, this process must be supported by a targeted public communication and engagement strategy supportive of the goals of the functional and competency reassignment exercise. The main outstanding issues are the finalisation of the framework policy paper for functional assignment, its approval and implementation to rationalise functional assignment within government.
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7
7.1
INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS

INTRODUCTION
Integrated development planning is key to enhancing the efficiency and effectiveness of public policy as a mechanism for addressing the mandates of the Constitution of Kenya, 2010. Such planning will be instrumental in ensuring that the envisaged development devolved government is able to leverage, in as optimal a manner as possible, the resources available to the County Governments to address the needs of citizens. It will be a key step in the drive towards building a more just and equal society for the Kenyan people and their progeny. The major concern of integrated development planning will be to address the challenge of wealth creation within the limited resources available. A key concern for effective and efficient integrated development planning is an understanding of Kenyas human settlement pattern. As discussed in Figure ***, Kenyas population is expected to reach 64 million persons by the year 2030. This population will be largely youthful, with more than 60 percent comprising persons aged below 35 years of age. It will also be significantly urbanized, from an estimated 29 percent in 2009 to 74 percent in 2030, but with a major rural population in terms of the number of persons. Current population growth patterns and settlement dynamics have a number of implications for Kenya, namely: Settlement dynamics, in terms of the movement and settlement patterns, especially the intense settlement in the high rainfall areas will be densely settled, puts extreme pressure on the natural resource base of the country, critical for food security and sustainable development. It has implications for the demand for and access to basic services by the citizens; The differential population growth rates and the resultant changes in population distribution has implications for the functional boundaries for service delivery and therefore, the demand for variations in service delivery and electoral boundaries and consequently the system for boundary demarcation; Rapid urbanization, in the context of a significant rural population, and emerging local, regional and global evidence that urban areas will be the engines of successful wealth creation efforts has implications for measures to deal with urban-rural linkages. The growth of these urban areas beyond political-administrative areas will mean that measures to deal with service delivery, in an economical and efficient manner will need to be put in place. In this context, integrated development planning will need to address issues of the merging demographic patterns, provide for productive urban-rural linkages, deal
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with emerging challenges of urban sprawl, peri-urban areas, service provision across county boundaries, and creation of supportive policy and institutional frameworks.
7.2
7.2.1
INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC SERVICE DELIVERY

Why Integrated Development Planning?
Integrated development planning is a process through which devolved governments can establish a development plan for the short, medium and long-term. The main steps in producing an integrated development plan are: An assessment of the current social, economic and environmental reality in the county area - the current reality; A determination of community needs through close consultation and aligning this to the imperatives of the Constitution of Kenya, 2010; Developing a shared and compelling vision for development in the county; An audit of available resources, skills and capacities; A prioritization of these needs in order of urgency and long-term importance; Development of integrated frameworks and goals to meet these needs; Formulation of strategies to achieve the goals within specific time frames; Implementation of programmes and projects to achieve key goals; Use of performance management tools to measure impact and performance and make appropriate course corrections.
The Integrated Development Plans are comprehensive, strategic planning frameworks to help the counties cost effectively and progressively achieve their developmental mandate. They will assist the devolved governments to amongst other things: align national and devolved government development and spending priorities through ensuring the integration of local government activities with other spheres of development planning at provincial, national and international levels, by serving as a basis for communication and interaction; align their financial and institutional resources behind agreed policy objectives and programmes; and serve as a basis for engagement between local government and the citizenry at the local level, and with various stakeholders and interest groups. Participatory and accountable government only has meaning if it is related to concrete issues, plans and resource allocations.
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7.2.2
Linking Integrated Development Planning and Effective County Governance
Effective county governance is about facilitation of the citizens of the various counties to realize their highest potential. Through working towards the realization of the objects of devolution as articulated in Chapter 11 of the CoK, 2010, county governance enhances access by citizens to opportunity. To avoid many of the challenges of uncoordinated planning and development, there will be need to harmonise sectoral, national, localised as well as term planning to secure effectively our development outcomes as illustrated in Figure 7.1. Figure 7.1: Components of Integrated Development Planning for Kenya
Kenyan counties face immense challenges in not only addressing the development challenges arising from the demands of the new constitution. They face the additional challenge of, in the process of raising the welfare of their citizens, acting as the engines of growth in the move towards achieving the goals set out in Kenya Vision 2030. The imperative of building attractive and sustainable settlements which meet the needs and improve the quality of life of local communities are major. As earlier illustrated to meet these challenges, the counties will need to develop a clear and compelling economic and social vision for their areas, will need to understand the various dynamics operating within their area, deliver the appropriate services to build liveable places strategies for realizing and financing that vision in partnership with
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other stakeholders. To do this, they will require an integrated development planning framework to effectively and proactively harness the resources at their disposal.
7.3
OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT PLANNING
Effective integrated development planning is premised on the presence and operationalization of an effective legal framework, as well the capacity to define and realize the instruments for development planning. 7.3.1 Constitutional Basis for Integrated County Development Planning in Kenya
Under the CoK 2010, development planning is anticipated at various levels. Schedule 4 of the CoK, 2010 assigns various elements of development planning to the national and county governments. This Schedule assigns national economic policy and planning, national statistics and data on population, the economy and society generally, general principles of land planning and the coordination of planning by the counties to the national government. County governments are assigned county planning and development including statistics, land survey and mapping, boundaries and fencing, housing, electricity and gas reticulation and energy regulation. Other functions key to development planning assigned to counties include county transport, country agriculture, county health services, as well as trade development and regulation. In respect of counties, these set of functions assign primary influence on county economic planning to the counties themselves. A major component of development planning, namely regional planning is not mentioned. This is then taken to be a national government function. Other provisions of this constitution explicitly or implicitly assign objectives of development planning and these are also clear and onerous. Table 7.1 documents the various provisions. Table 7.1: Key Constitutional Provisions relevant to Integrated County Development Planning in Kenya
ARTICLE Preamble 1 (4) (a) and (b) THEME Basis for public service delivery Sovereignty of the people to be exercised at national and county levels Basis of engagement between national and county governments Devolution and access to national services National values to be reflected in all activities of government Intellectual property rights IMPLICATIONS FOR INTEGRATED DEVELOPMENT PLANNING Basis and goals for public service delivery. These goals must be made objects of development planning Main platforms for planning and must be provided clear roles in the planning processes. One key missing aspects is that of regional planning. This is a residual function of national government, but must provide clear roles for counties in the development of regional plans. Need for coordinated and informed planning between the two levels of government Planning as a tool for harmonising service delivery frameworks Basis and goals for public service delivery implying that planning services and processes must be readily accessible to citizens Protection of indigenous property rights whilst delivering public services. Integrated Development Planning must protect indigenous knowledge
6 (2) 6 (3) 10 11 (2) (c)
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ARTICLE 12 (1)
THEME Entitlements of citizens
IMPLICATIONS FOR INTEGRATED DEVELOPMENT PLANNING Right of citizens to public services subject to clearly defined constitutional provisions Need to be clear about what the limits of the constitution are in respect of public services Sets the basis to social, economic and cultural rights Need to understand what these means for physical and economic access conditions to public services Circumscribes the level of access and acceptable standards and norms for public service delivery
19
Rights and fundamental freedoms of every citizen of the Republic of Kenya Application, implementation, enforcement, authority of courts and limitations of Bill of Rights to all state organs and all persons, public or private and also the basis for interpretation of Bill of Rights Right to life Equality and discrimination Human dignity freedom from
20; 21, 22, 23, 24, 25
26 27 28
Any form of public service delivery that threatens the right to life is unconstitutional Public services shall be delivered in an equitable and non-discriminatory manner Public services shall be delivered in a manner that recognises and protects human dignity Definition of human dignity should be well understood Public services should ensure people are not subjected to cruel, inhuman or degrading conditions Public services should not be delivered using forced labour In delivering public services, information collected from citizens must be protected and not divulged in an unauthorised manner No one may be denied access to public services on account of their beliefs or religion Establishes a basis for informed and obligatory citizen participation in planning frameworks Key planning goal Planning must ensure a move to the delivery of these rights to citizens
29 (f) 30 (2) 41 31 32 (3) 33 (1) (a) and 35 42 43
Freedom and security of the person Slavery, servitude and forced labour as well as labour relations Privacy of every person Freedom of conscience, religion, belief and opinion Freedom of expression and access to information Clean and healthy environment Rights to highest attainable standard of health care, health care services and reproductive health care; adequate housing; reasonable standards of sanitation; freedom from hunger; clean and safe water; social security; education; emergency medical treatment Obligations on providers of goods and services to consumers
46
Public services must be delivered that are of reasonable quality, including access to information to facilitate effective utilisation by consumers of those services; protection of their health and safety and to compensation for loss and injury Planning procedures and processes must integrate a right to appeal and/or object for citizens Lays the basis for affirmative action and should guide the focus of planning as an instrument for affirmative action
47 and 50 53, 54, 55, 56, and 57
Fair administrative action and Fair hearing Specific application of the Bill of Rights to children, persons with disabilities, youth, minorities, marginalised groups and older members of society Principles of land policy as well as the regulation of land use and property Establishment and functions and National Land Commission Kenyas environment and natural resources and their utilisation Leadership and integrity of public servants Electoral systems and processes including delimitation of electoral areas
60 and 66
Key principles to be engendered in development planning efforts
61 69, 70, 71, 72 73 to 80
A key institution in defining planning frameworks land use policy; registration of titles; taxation on land; oversight of land use planning Planning must protect and sustain the natural environment Framework of personal and public behaviour and action by public servants in delivering public services bring honour to the nation; promote confidence to the public service Where public services are to be delivered through elected institutions, the framework for these processes is established here
81 to 89
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ARTICLE 94 95 96
THEME Role of Parliament Role of National Assembly Role of the Senate
IMPLICATIONS FOR INTEGRATED DEVELOPMENT PLANNING Legislative authority to alter boundaries, functions as well as define the nature and scope of policies and laws Enact laws, determine allocation of national revenues, appropriate funds for expenditure by state organs, exercise oversight over state organs Represent counties, protect interests of cuties and their governments, deal with matters concerning counties, determine allocation of national revenue amongst counties (217), oversight over national revenue allocated to county governments, oversight of state officers in accord to Article 145 Ensure equity in sharing of national resources, promote national unity, give voice to local communities; promote accountability and citizen participation in governance of the nation; give powers of self governance to communities; and ensure proximate, easily accessible service delivery that will facilitate socio-economic development in a manner that protects the rights of the minority and marginalised Implies that County Governments will be the fulcrums around which public services can be decentralised. Central Government will move all services that must be decentralised through County Governments County governments shall have reliable sources of revenue to enable them govern and deliver services effectively Means that there shall be a county government responsible for county planning in each county and that each county shall decentralise its mandated functions and competencies to the extent that it is efficient and practicable see also effect of the Sixth Schedule, Article 15 County executive committee responsible for operationalising county and national legislation and report on the same to the county assembly Approval of plans and policies responsible for managing and exploiting county resources as well as development and management of its infrastructure and institutions Key to assigning of competencies between the national and county levels of government as well as forming the basis for effective resource sharing as well as performance management Provides the framework for delegation of functions between the two levels of government, either way by mutual agreement, including the requisite transfer of resources allow for transfer of planning functions for purposes of regional planning between counties Demarcation of boundaries key to establishing the spatial mandates of counties in planning Sets up the basis for cooperation defines the intergovernmental relations arrangements including measures for dispute resolution and allows establishment of joint commissions / authorities key to dealing with services with cross-county spill over effects basis for regional planning interventions National government support to counties for effective development planning Obliges county assemblies to facilitate public participation. Measures must then be put in place to facilitate effective public participation in the county planning processes National legislation to provide for structure, timing, form and manner of consultations in the preparation of national and county government budgets and plans
174 to 200
General purpose and structure of devolved government
174 (e)
Facilitate decentralisation of national government functions and services from Nairobi Principles of funding public service delivery County governments
175 (b) 176
183 185
County executive committees public service delivery responsibilities Legislative assemblies authority of county
186
Assignment of functions between national and county levels of government Transfer of functions between levels of government
187
188 189
Boundaries of counties Cooperation between national and county governments
190 196
Support for county governments Public participation
220 (2)
Form, content and timing of budgets
Key amongst these objectives is the progressive realization of the provisions of the Bill of Rights. Effective development planning must link national and county economic planning. Recognizing that development takes place on land, and to avoid the challenges of the past, there must be a clear connection between economic and land use planning. In addition, recognizing that certain services are most cost effectively provided on a large scale, there needs to be provisions for cross-county and cross-national boundary spatial planning.
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7.3.2
Proposals for Integrated Development Planning in Kenya
In order to realize the objectives of integrated development planning, there will be need for legal and institutional mechanisms to foster and guide the progressive realization of a society led by planning. Evidence from other sub-Saharan African states suggests that there is significant scope for improvements in resource utilisation, through harmonisation of parallel planning processes, with consequent misalignment of these and the outputs/outcomes. Figure 7.2: Proposal for Integrating Development Planning Frameworks in Kenya
This planning will be implemented at the national, regional, county, sub-county and ward levels as illustrated in Figure 7.3. The instruments for achieving the anticipated planning outcomes would be crafted in development planning policy, legislation and guidelines.
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Figure 7.3: Operationalising Integrated Development Planning in Kenya
In this regard, it is proposed that a County Development Planning & Facilitation Bill, 2011 to provide a general framework for integrating economic and spatial planning be passed. The objectives of this Bill shall be to facilitate and guide the development a strategic, integrated development planning framework for counties in Kenya. In respect of counties, it will: provide for clear spatial objectives, including land use and settlement patterns; require them to develop clear service delivery objectives in terms of standards and levels of services as well as time bound plans for their achievement; link national, regional, county, sub-county and ward level planning and development control activities
As illustrated in Figure 7.2, there is need to provide for integrated planning linked to a national development vision and strategy. We will require having various coordinated plans at the national and county levels. To deal with the cross county issues, effective regional planning will need to close the missing middle as illustrated in Figure 7.3. The manner in which development planning is to be implemented is implicitly anticipated under Article 6 on devolution and access to services. It is suggested that these plans should be updated within 9 months by each incoming County Government and translated effectively into 5-year Delivery Program for each County Governments term of office. Each county Governor would in addition be
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required to make an annual State of the County Report that would provide indications as to progress in achieving the plans by their administration, including a statement of the challenges they face.
7.4
CONCLUSIONS
One of the major challenges we have faced is the lack of comprehensive and coordinated planning. This situation was made worse by the inadequate linkages between planning and budgeting that effectively hampered implementation. It is no surprise that the country is renowned for developing comprehensive and strategic development blueprints, which are never implemented. This is a challenge that must not infect the devolved system of government. To this end, it is proposed that: A County Development Planning & Facilitation Bill, 2011 be developed and passed. This will form the basis for integrating economic and spatial planning at the national and county level. It will also be the basis for identifying programmes, projects and initiatives aimed at improving the welfare of Kenyans. All appropriations at the county level should be based on the Integrated County Development Plan (ICDP) that will be one of the key outputs of this will be the basis for expenditures by county governments. In the transition process, the inaugural Governors should be mandated to develop and have approved within the first 12 months the first ICDPs to be approved by the county assemblies within the same period. As illustrated in Figure 7.3, the ICDP should take account of the national, county and cross-county development imperatives. The County Development Planning & Facilitation Bill, 2010 will provide for the ICDP that will comprise the following instruments to be a compulsory requirement for all county governments, namely: County Spatial Plan: this will provide a spatial expression of the social and economic development programme of the county, with clear statements of how it is aligned to and at the regional and national level in a manner that harmonizes the sustainable development of the county and Kenya. It forms the basis for other sub-county plans, elaboration will be a prerequisite for appropriation of resources. It shall contain short, medium and long term measure programmes aimed at eliminating or ameliorating dysfunctionalities, disparities and inequalities within the county County Institutional Plan: this will elaborate the capacity building measures required to strengthen County Level institutions, organisations, laws, regulations and processes, in a manner that will lead to the effective application of the plans; County Human Resources Plan: will focus of enhancing the skills levels within the county to enable adherence and achievement of county and national development imperatives;
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County Performance Management Framework: will be designed to facilitate the objectives of the county as articulated in the County Spatial Plan by ensuring that it responds to the needs of individuals and communities; prioritises actions and activities including resource acquisition and OUTSTANDING ISSUES utilization; promotes accountability for public Redefining the Public Policy Formulation service delivery; ensures Process in a Devolved Environment citizens get value for Drafting of the County Development money and motivates Planning & Facilitation Bill, 2011 county staff to strive for Elaborating on the Contents of the Plans enhanced performance. Articulating the Planning Processes and
Citizen Participation Opportunities in those processes
To strengthen the link between planning, financing and budgeting appropriations of county and national budgets should be premised on the
The ICDP will also form the basis of the lower levels of governance development plans.
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8
8.1
INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION

INTRODUCTION
Devolution constitutes a strong anchor against concentration of power in the Executive and engenders co-operative governance. It also accommodates diverse interests and avails an environment of public participation by the people in the manner they are governed. The Constitution provides for National and County Governments as distinct and yet interdependent levels. The principle of cooperative government regulates the relationship between and requires integrity at each level of government. In addition, government activities must be coordinated in order to avoid the wastage of scant resources. Where conflicts occur, these ought to firstly, be resolved through alternative dispute resolution processes with court action being the last resort. Functions and responsibilities too, must be deliberately and rationally distributed in order to enhance the efficiency and effectiveness of government as a whole. Intergovernmental relations are institutional mechanisms for bilateral and multilateral interaction within and between levels of government for co-ordination of government policies and functions. They reduce incidents of conflict and facilitate resolution of disputes that may occur. The Terms of Reference of the Task Force include undertaking stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. We have, in this chapter, proposed practical mechanisms to facilitate the requisite co-operation and co-ordination. Our recommendations are informed not only by extensive relevant comparative experience, but more importantly, from the invaluable views expressed by Kenyans during the public consultations. In setting the context, we begin with an overview of Kenyas erstwhile administrative system. The rationale and principles for intergovernmental relations are then addressed. We next examine the different levels, namely, national to county, inter and intra county at which this co-operation is required and make recommendations on the policy and legal framework.
8.2
SETTING THE CONTEXT: A BRIEF OVERVIEW OF KENYAS ADMINISTRATIVE SYSTEM
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Kenyas administrative system, prior to the adoption of the new Constitution, was RELEVANT CONSTITUTIONAL PROVISIONS FOR INTERGOVERNMENTAL RELATIONS informed by its strong Article 1 (4): The sovereign power of the people is exercised at the centric policies within a national level and the county level; unitary system of Article 6 (2): the governments at the national and county levels are government. Central distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and co-operation; government was Article 186 (2): A function or power that is conferred on more supreme and Kenyas than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government; post-independence Article 189 (1): Government at either level shall perform its administrative functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, experience was and respects the constitutional status and institutions of government characterized by at the other level and, in the case of county government, within the county level;Assist, support and consult and, as appropriate, delegation of powers to implement the legislation of the other level of government; andLiaise sub-national units at six with government at the other level for the purpose of exchanging levels, namely, subinformation, coordinating policies and administration and enhancing capacity. locational, locational, Article 189 (2): Government at each level, and different division, district, governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set provincial and national. up joint committees and joint authorities; The official rationale, Article 189 (3): In any dispute between governments, the governments shall make every reasonable effort to settle the particularly during the dispute, including by means of procedures provided under national nineties, was that legislation; Article 189(4): National legislation shall provide procedures for national unity could settling inter-governmental disputes by alternative dispute resolution only be harnessed mechanisms, including negotiation, mediation and arbitration; through a strict central Article 189 (5): In considering an apparent conflict between legislation of different levels of government, a court shall prefer a ordering of politics and reasonable interpretation of the legislation that avoids a conflict to the economy. In this an alternative interpretation that results in conflict; Article 189 (6): A decision by a court that a provision of legislation regard, local of one level of government prevails over a provision of legislation of government became an another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the effective mechanism for inconsistency; limited decentralization Article 96 (1): The Senate represents the counties, and serves to protect the interests of the counties and their governments. with the center retaining complete control over local authorities. Legislative authority was entirely vested in a unicameral house, which would delegate powers to various state institutions and non-state actors to implement the law. The principle of devolution, which is entrenched in the new Constitution, heralds a complete shift from the old order. Mechanisms for vertical and horizontal co-
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operation and consultation between the National and County Governments must, therefore, be identified and harnessed in order to avoid the centralized and unilateral decision-making that has been the hall mark of Central Government for many years.
8.3
8.3.1
RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS

Rationale for Intergovernmental Relations
Article 186 of the Constitution provides for the functions and powers of the National and County Governments respectively and the powers within the concurrent jurisdiction of each of those levels of government. Both levels, of necessity therefore, must co-operate.
8.3.2
Principle of Fidelity to the Nation
Article 10 (2) of the Constitution states that the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people. This is the principle that requires the people of Kenya to understand that we are united in diversity, the operationalization of County Governments notwithstanding.
8.3.3
Principle of Unity in Diversity
In the preamble to the Constitution, the people of Kenya express pride in their ethnic, cultural and religious diversity and declare the determination to live in peace and unity as one indivisible sovereign nation.
8.3.4
Principle of Cooperation
Article 189 of the Constitution provides for mechanisms of cooperation between the levels of government. The new political system requires duty bearers to work in consultation, exchange information, and have respect for organs, institutions and structures as the law provides. Such cooperation includes fostering national unity, harmonizing policy formulation, coordinating of socio-economic policies, implementing of legislation, enhancing capacity and facilitating National and County Governments operations. This principle assumes importance in view of the need to manage shared resources between the Counties.
8.3.5
Principle of Interdependence
Article 6 of the Constitution provides for interdependence in the operations of the two levels of government. These are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
8.3.6
Principle of Oversight
Article 174 states that the objects of devolution of government are to promote democratic and accountable exercise of power and, to enhance checks and balances
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and the separation of powers. This principle requires that both levels play an oversight role and as a result protect and uphold the Constitution.
GLOBAL IGR EXPERIENCES
South Africa (National and Provincial Spheres)

The Republic of South Africa has a hybrid presidential-parliamentary system. A notable feature of the 1996 Constitution is Chapter 3 (articles 40-41) entitled Co-operative Government. This explicitly enunciates that intergovernmental co-operation is to be the underlying philosophy for the conduct of government and relations between the three spheres of government: national, provincial and local. Furthermore, to encourage intergovernmental co-operation, the constitution empowers the Constitutional Court, if it is not satisfied that every reasonable effort to settle a dispute by intergovernmental negotiation has been taken, to refer a dispute back to the governments involved (article 41(4)).The Intergovernmental Relations Framework Act, No. 13 of 2005 (pursuant to section 41(2) of the Constitution establishes and provides for structures and institutions to promote and facilitate intergovernmental relations. It regularizes a number of existing Inter Governmental Relations (IGR) fora which include the South Africa Local Government Association (SALGA). Another forum for co-operation and co-ordination is the Presidents Coordinating Council (PCC). It consists of the President, the Deputy President, the Minister in the Presidency, the Minister for Provincial and Local Government, the Minister for Finance, the Minister for Public Service and Administration, the Premiers of the nine provinces, and the Chairperson of SALGA. The PCC meets twice a year. It is, however, primarily a consultative body, its decisions not being formally binding or enforceable.
8.4
EMERGING KEY ISSUES
Based on the provisions outlined in the Constitution, the following issues arise: 1. Mechanisms of vertical consultation and co-operation between National and County Governments; Mechanisms of consultation and co-operation between the County Governments and other state organs and officers, namely, o o o Senate; Senators; Members of the National Assembly.
2.
Germany (Federal and Lander Governments)

Germany has also developed an extensive number of other extraconstitutional bodies and procedures for intergovernmental consultation and co-ordination. These include the Conference of Ministers-President (Premiers), in which the Federal Chancellor (Prime Minister) participates, and which meets at least twice a year and Numerous Conferences of Specialized Ministers of the Federation and the Lnder. With regard to the latter, each meets at least once every six months, and each meeting is preceded the week before by a meeting of the relevant state secretaries. These ministerial meetings are significant because they make political decisions, generally on the
3. 4. 5. 6.
Mechanisms of horizontal co-operation between County Governments; Mechanisms of co-operation between the County Governments and the citizenry; Horizontal relations between the County Governments and Cities, municipalities and urban areas. Mechanisms for conflict resolution (including in situations of conflict of laws) between the National and County Government. Page | 153
7.
National Government intervention and suspension of Counties.
8.5
8.5.1
MECHANISMS OF CO-ORDINATION AND CO-OPERATION

National Government and County Government
The areas of potential conflict between the two levels of Government include issues relating to financial management and resource allocation criteria and intervention in and suspension of Counties by National Government. There is a likelihood of abuse of power by National Government when exercising oversight authority over County Governments. The County Governments too, could exercise their authority recklessly and hence fail to deliver services to the citizenry. Mechanisms of co-operation and co-ordination must address those concerns. Most federations, especially parliamentary ones, have found formal or informal federal-provincial and inter-provincial councils of considerable value for facilitating intergovernmental collaboration. In Australia, India and South Africa, the emphasis is on effective federal-provincial councils dealing with issues of both vertical and horizontal collaboration. The Australian experience illustrates that constitutional underpinning is not essential. The gaps that exist in Constitutions, including Kenyas, can be filled either through legislation or even informal mechanisms to which the levels are committed to. In establishing formal institutions to improve intergovernmental collaboration it will be essential to ensure that they are open, transparent, accessible and responsive in order to avoid undemocratic practices. The experience from South Africa, Germany, Australia and Canada in this regard, is instructive.
8.5.2

Views Expressed by Kenyans

Design of a policy and legal framework to guide cooperation and consultation between National and County Governments Establish a ministry of cooperative government at the national level to manage the affairs of County Governments National Government should focus on policy formulation and training of County civil service, while County Government concentrates on implementation of projects and services Establishment of a joint association that regularly meets with the Governor to share information that will help in harmonizing laws between National Government and County Government A National Advisory Committee to help in the operations of the Counties There is need to have a coordinator between the County and the National Government
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Formation of joint county board/committees to Australia (Federal and State Governments) coordinate functions, Australia, like Canada combines federal and parliamentary institutions. With and the exception of the Loan Council, intergovernmental relations are not services referred to in the constitution. Australia has established a number of major facilitate coformal councils to deal with policy issues that have intergovernmental operation between implications. The Council of Australian Governments (COAG) is Australias National primary intergovernmental institution. It was established in 1992 in a the movement to reform intergovernmental relations in Australia. It is chaired Government and by the Prime Minister and includes all the State Premiers and Territory County Government Chief Ministers and the President of the Australian Local Government The County Association. It generally meets at least once a year. The main purposes of COAG are to increase co-operation among governments and to oversee Executive cabinet and co-ordinate the work of the Ministerial Councils. There are some 30 intergovernmental ministerial councils dealing with sectoral responsibilities should reflect that of at which a minister of the Commonwealth and of each state and territory the National cabinet attends. A number of these ministerial councils have decision-making in number, function mandates assigned by legislation and have voting rules, thus making them and service genuine intergovernmental co-decision mechanisms. Mechanisms Canada: Federal Government Model Legislation to be put in place for the Governor to brief The Federal Government adopts a model legislation that regulates a given the President on the field in a detailed way while allowing for the possibility of suspending its in the application in a province that has a regulation deemed equivalent by matters Ottawa. County Government Senator should be a link or a hub between the National Government and County Government to facilitate cooperation There should be matching of the National Parliament with County Assemblies on the issue of standing orders, business calendar, and committees but legislation of the National Parliament should not affect the County Assembly
FURTHER GLOBAL IGR EXPERIENCES
8.5.3
Recommendations
We recommend: 1. An intergovernmental relations legislation and where practicable, concrete decision-making mandates be assigned to the designated intergovernmental institutions An intergovernmental/co-operative National Government ministry and corresponding County departments / ministries to co-ordinate matters of intergovernmental co-operation A policy direction that National Government should endeavor to focus on policy formulation and enhancing the capacity of the County Governments, while the latter concentrate on implementation of projects and efficient delivery of services
2.
3.
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4.
5.
6.
7.
National Government provides transitional Germany: Joint Co-operation between the City State of model legislation Berlin and the State of Brandenburg where practicable pending the An ongoing project between the City State of Berlin and the neighboring Lander of Brandenburg is the Berlin-Brandenburg enactment by the International Airport. The Federal Government and the two County Assemblies Landers developed a joint design and set up an operating legal entity that will manage the enterprise and pay out dividends to of their own context the participating parties. The mutual economic benefits for the specific legislation Landers include employment creation and an expanded service industry An association of France: the Inter Communality Approach organized municipal authorities be France with 101 Departments and over 36,000 Communes faces underpinned in the an even greater challenge in this regard. In 1971, the Marcellin law offered support and money from the government to entice the intergovernmental communes to merge freely with each other. This system of inter relations legislation communalities had only a limited effect since only about 1,300 communes agreed to merge with others. As a result, a body A National and comprising elected Mayors and Councilors is currently making County coordinating proposals on the formation of mandatory viable consolidated entities. council be established IGR Experience in South Arica (Provincial Sphere) comprising the The Premier of a province is responsible for coordinating interNational President, governmental relations within the province between the provincial government and local government in the province. The Deputy President, membership includes the Premier, at least the provincial Executive Cabinet Secretaries, Council members (MECs) for Local Government, mayors of district the 47 County municipalities and where applicable metropolitan municipalities and a representative of organized local government. It must Governors and the periodically report to the Presidents Co-ordinating Council on Chairperson of the matters of national concern and progress on the implementation of national policy and legislation within a province. association of the Canada: Incorporation of Legislation by Reference organized municipal authorities A valid legislative technique is incorporation by reference, The County enabling a legislature to adopt the legal standards of another order of government on a related field. This technique and Executive ministries administrative delegation has been used to uniformly regulate be coordinates to the issues affecting the Provincial jurisdiction, for example, in intraprovincial transportation of goods. Under the federal jurisdiction, national ministries inter-provincial and international transportation of goods is also where practicable. similarly regulated. This approach assists the provinces in implementing an inter-provincial mutual recognition system Sectoral allowing users to deal with single administration. The passport Forums/Working system developed by the Provincial Securities Commission enables a registrant to access markets in all provinces once certification Groups comprising has been obtained in one of them. of Cabinet Secretaries, the corresponding County Executives be established in order to facilitate and co-ordinate the execution of national government
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functions services,
Sri Lanka: Provincial Working Groups In Sri Lanka, for example, Provincial Working Groups have been established. They comprise of representatives from various technical sectors and allow participation from civil society and private sector. They are the basis for real territorial development where needs are analyzed and respective government plans are complemented by civil society and private sector contribution. Ghana: Composition of the District Assembly In Ghana, Article 242 of the Constitution provides that a District Assembly consists of the following members: One person from each local government electoral area within the district elected by universal adult suffrage; The member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote; The District Chief Executive of the district and; Other members not being more than thirty per cent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district. South African IGR (District and Inter-Municipalities) The mayor of a district municipality must establish a district intergovernmental forum to promote and facilitate intergovernmental relations between district municipality and the local municipalities in the district. It discusses and consults on draft national and provincial policy and legislation relating to matters affecting local government interests in the district. Two or more municipalities may establish inter-municipality forums to promote and facilitate intergovernmental relations between them.
(police health, education, immigration and citizenship etc) within the Counties 8. The Committees of the County Assembly coordinate to the National Assembly Committees where practicable. Working Groups be established
8.5.4 Inter-County Governmental Relations
The areas of potential conflict between the County Governments include issues related to utilization of trans-county shared natural resources (forests, game reserves, rivers, lakes etc), sharing of existing assets in the provincial headquarters and developing joint infrastructure projects (roads and water projects). This requires the establishment of joint fora for coordination. In Germany, for example, the two states of Berlin and Brandenburg have worked together closely for years, a unique situation in Germanys federal system. Comparative experiences also show that our county component of 47 is far too large and unless counties co-operate in the execution of their functions, the benefits accrued from economies of scale will be lost (road construction, procurement of machinery, medical drugs etc). Some countries with a longer devolution experience than Kenya, have also encountered operational challenges attributed to numerous territorial units. In this regard, Germany with its 16 Landers has already set up a Commission to make recommendations on how to reduce these units. 8.5.4.1 Views Expressed By Kenyans Design of a policy and legal framework to guide cooperation and consultation between county governments
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A regional consultative organ be established to co-ordinate Counties in issues of mutual interest Have inter-county committees meeting quarterly to discuss issues of mutual interest Establish a governors forum every six months to deliberate on the issues in their Counties to enhance cooperation and inter-relations Form a County steering group comprising County Executives, County Senators, among others to coordinate operations within Counties Appointment of County ambassadors/liaison officer by every County for representation Establishment of County line ministries that correspond to the national ministries. Establishment of inter-county technical agencies to manage cross-county services
8.5.5
Recommendations
We recommend: 1. 2. The enactment of intergovernmental relations legislation to support inter county co-operation The incorporation of legislation by reference be underpinned in the intergovernmental relations legislation to enable Counties that are subject to the asymmetrical devolution of the legislative function or those that are yet to legislate a particular law to adopt the legislation of another county on a related field There be established a Council of Counties comprising the 47 Governors with the chair on rotational basis, and shall hold a minimum of two sittings per year. Its steering committee be composed of senior public servants responsible for intergovernmental affairs from each county. This would report to the National and County Co-ordinating Council on matters of national concern and progress on the implementation of national policy and legislation within the County Additional fora to address issues of trans-county concerns be constituted on a needs basis An inter-municipality forum comprising the elected representatives to convene at least twice a year
3.
4. 5.
8.5.6
Intra County Co-operation
The County Government comprises of the County Executive and the County Assembly. There are other elective positions including the Senators and the Members of the National Assembly. It is also envisaged that some sub county units (cities and
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urban areas) will have elected members. It is, therefore, imperative that mechanisms of co-operation and co-ordination be established in order to improve service delivery. The principle that the devolution design ought to assume a broad institutional interpretation requires that public participation including also the involvement of non-state actors is emphasized. In this regard, also, the role of the public private partnerships is critical.
8.5.7

Senators should have offices at County level and attend County executive committee meetings as ex-officio members and address the County Assembly on designated days Senators and Members of the National Assembly should, through inter alia, seminars, workshops and meetings between counties and their elected officials, be conversant with the operations of the county government so that they can present county views effectively The Senators should participate in regular question and answer sessions with the County. The County Government should invite the Senator for quarterly meetings to seek advice as necessary. The Senator should organize quarterly/biannual review meetings with the Speaker of the County Assembly to give advice on County legislation as required.
8.5.8
Recommendations
We recommend: 1. The relationship between the Senate and the County Assembly be coordinated by requiring the County Assembly to provide full and regular reports to the Senate on a bi-annual basis and the Senate to in turn provide the County Assembly with feedback on a bi-annual basis 2. An intra-County forum comprising of the Senator, Governor and Members of the National and County Assemblies be established to hold consultative meetings on a bi-annual basis 3. An inter-municipality forum be established between the County government and its sub units 4. County working groups comprising representatives of Civil Society Organizations, Community Based Organizations (to include representatives of minorities and marginalised groups), private sector, professional associations and respective County Executive technocrats be established
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8.6
8.6.1
CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES

Concept of Cooperative Government
Article 189 of the Constitution lays the framework for cooperation between National and County Governments. Each level of government is supposed to perform its functions in a manner that respects the functional and institutional integrity of the government at the other level. The government at either level is supposed to assist, support and consult and as appropriate implement legislation of the other level.
8.6.2
Need for Joint Committees and Joint Authorities
The Constitution provides for the formation of Joint Committees and Joint Authorities to facilitate co-operation at both levels and also inter county coordination in the performance of functions and exercise of power. We recommend that the Joint Committees and Joint Authorities be inclusive in representation by: Having representatives of both levels of Government and representatives for County Governments be nominated by the Council of Counties, approved by the Senate, and appointed by the Governor Representatives of the National Government will be nominated by the respective Cabinet Secretary / competent authority, approved by the National Assembly and appointed by the President.
8.6.3
The Role of Senate
Article 96 of the Constitution provides for the role of the Senate. The Senate, inter alia, represents Counties and serves to protect their interests and their governments. It participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties in accordance with the Constitution. It is also involved in determining the basis of revenue sharing in the Counties and also exercises oversight over the same. The effective execution of the Senates mandate requires clear mechanisms of cooperation between the Senate and National Government. This link is expressly established by the Constitution. The Senate participates in the oversight of the Executive by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145. Senators also are Members of Parliament to which the President reports in accordance with Article 132. The other level of co-ordination is that between the Senate and the County Governments. We have recommended above that the County Assembly provides full and regular reports to the Senate on a bi- annual basis and the Senate in turn provides the County Assembly with feedback on a bi-annual basis.
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8.7
INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION

Intergovernmental Dispute Resolution
8.7.1
Ethiopia: Traditional And Legal Methods Of Conflict Management The violent conflicts between the Gumuz and Amhara from 1992-1994 associated with historical, cultural and land encroachment factors were resolved by integrating traditional and legal methods of conflict management. Regional authorities including joint peace committees were tasked with responsibilities for developing joint activities whilst the police from both states ensured that law and order were observed. The lower peace committees which included elders and administrative authorities of both communities played a reconciliation role Nigeria: Unresolved Conflicts The Jos Plateau State conflicts between Muslim and Christian communities total 13,500 since 1999. Various Committees of Inquiries set up have been unable to provide a resolution of the conflict. A Truth and Reconciliation model has been proposed by some commentators as an alternative dispute resolution mechanism. Canada: Resolution of Disputes Arising From Concurrent Functions
Article 189 of the Constitution provides that both Governments shall exercise their powers in a manner that respects the functional and institutional integrity of each level. It further states that Governments shall make every reasonable effort to settle disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.
The potential areas of conflict include the exercise of functions that lie within the concurrent Federal-provincial agreements sometimes seek to jurisdiction, allocation of coordinate the exercise of shared jurisdictions. The resources and national immigration agreements signed between the federal government and each of the provinces are good examples government intervention and of this. These offer an asymmetrical sharing of provincial suspension of a County and federal responsibilities in an area of explicit Government. Agreements concurrent competencies. For example, the CanadaQuebec Accord Relating to Immigration and Temporary between Governments that Admission of Aliens gives Quebec funds and responsibility exclude key partners could also for settlement services and a greater say in planning and strain relations. The signatories attracting business immigrants. Quebec also has the responsibility for the actual selection of immigrants and to such agreements also need to the control over settlement services. The Federal be determined. Shared Government determines national standards and objectives resources, if not properly relating to immigration and is responsible for the admission of all immigrants and the admission and control managed, could occasion interof aliens county conflicts and conversely, well managed joint activities between Counties will enhance mutual co-operation. At the intra county level also, poor governance and a leadership disconnected from the citizenry could fuel discontentment.
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Article 191 provides that where a conflict between National and County legislation in respect of matters falling within the concurrent jurisdiction of both levels of government, National legislation prevails over County legislation if the National legislation applies uniformly throughout Kenya or the national legislation is aimed at preventing unreasonable action by a County that is prejudicial to the economic, health or security interests of Kenya or another County or impedes the implementation of national economic policy. Effective dispute resolution mechanisms must be developed through transparent and consultative processes which demonstrate fairness, flexibility, affordability and efficiency. There are three possible categories of dispute settlement. Firstly, there is the facilitative processes in which an outsider (an intervener) assists the parties to make decisions but is not able to make binding decisions for them, for example, mediation. Secondly, there are advisory processes in which the intervener assists the parties to make decisions and where they are unable to do so, uses his or her expertise to guide and advise them on possible outcomes. Thirdly, there are determinative processes in which the intervener investigates the case, hears the evidence and arguments on all sides, and makes a decision that is final and binding, for example, arbitration. It is imperative that there be early identification of and intervention in conflicts. The initial use of low cost, internal, informal processes is also preferred and systems designed so that processes are used in an incremental and systematic way. Protocols and codes of conduct can provide guidance as to the appropriate role and conduct of the respective parties. Each organ of state could have a dispute resolution manager who is a facilitator of the dispute resolution process and would not act as judge or umpire. Such an official would be obliged to liaise with the counterpart in the other relevant organ. Both would crystallize the issues and agree on the nature and parameters of the dispute.
8.7.2
Comparative Experiences of Dispute Resolution Mechanisms in Africa
8.7.2.1 Views Expressed by Kenyans Establish an inter-county committee to deal with disputes arising Create a national arbitration organ Establish a specialized ministry at the national level to deal with conflict resolution. Empower the Village Council of Elders Devolve judicial functions to the lower level Establish special courts to resolve conflicts and establish peace-conflict committees Boundaries of Counties be clarified Page | 162
The restructured Provincial Administration to play a role in dispute resolution
8.7.3
1.
Recommendations
The intergovernmental relations legislation makes provisions for, inter alia, a. The National Arbitration Council and dispute resolution managers and functions assigned b. Protocols and codes of conduct c. Counties submit draft France: Intervention and Suspension of legislation to the Kenya Law Local Government Reform Commission in In France, the Regional Chamber of order to assure that conflict Accounts ensures that the budget of the of laws on account of Department is balanced. In the event of concurrency of functions is either default in preparation of budget or failure to remedy a defective budget, the detected early and National Government intervenes through appropriate measures taken the Prefect. If the President of the General to avert the potential Council is completely unable to manage the budget and secure the necessary majority conflict in Council decision-making, the Minister for There be specification of Local Government can, upon the advice of signatories to National and County the Prefect, dissolve the General Council Government agreements and and call for fresh elections. designation of agreements that must be approved by Cabinet, those that are concluded on the basis of a signature by the Cabinet Secretary responsible for intergovernmental affairs and those where the signature of the sector Cabinet Secretary will suffice A Requirement that cities and municipalities be included as signatories to agreements concluded through municipal infrastructure programmes Require that for purposes of co-ordination of the exercise of concurrent jurisdiction, both Governments define and agree upon their respective roles and responsibilities Require that Counties enter into horizontal agreements that address transborder issues and clarify signatories Provide for the granting of incentives for Counties to undertake joint projects Provide that Counties enact legislation to guide the conclusion of inter-county agreements Devolve some functions of the Judiciary to the sub county units by recognising appropriate existing traditional/local mechanisms and institutions for dispute resolution subject to the Constitution
2.
3. 4.
5. 6. 7. 8.
8.8
INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT
Article 190 provides that National Government may intervene if a County Government is unable to perform its functions or fails to operate a financial management system that complies with the requirements prescribed by national
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legislation. Article 192 provides for suspension of a County Government upon recommendations of an Independent Commission, the concurrence of the President and authority of Senate. Article 192 provides for suspension of County Government by reason of emergency arising out of internal conflict or wars or in any other exceptional circumstances. This Article is applicable only in exceptional circumstances when public security and order are threatened. During the County consultations, many Kenyans expressed the fear that the National Government and its Executive could abuse the powers under these provisions. Intervention by National Government must therefore only occur in the most clear circumstances. The interim arrangement during the suspension must also reflect the oversight role of the National Executive and at the same time provide assurance to the affected County that the object and principles of devolved government are not eroded.
8.8.1

The constitutional status of the Counties must be jealously guarded and intervention and particularly suspension should only occur in the most clear of circumstances and the functions of the affected County must be restored at the earliest opportunity The Senate to establish a transition commission (ad hoc Committee)
OUTSTANDING ISSUES An intergovernmental relations legislation to guide the Cooperative Government and provide for the establishment of the relevant institutions. These include the National and County Coordinating Council, sectoral forums/working groups, The National Arbitration Council, protocols and codes of conduct, the Council of Counties, the Intra-County Forum, the Inter Municipality Forum, the Association of Municipal Authorities, County Working Groups and the Village Council of Elders An intergovernmental/co-operative National Government ministry and corresponding County departments/ministries to co-ordinate matters of intergovernmental co-operation
National Government undertakes the County functions
8.8.2
1. 2.
Recommendations
With regard to intervention in Counties by National Government, the Council of Counties be consulted and involved in decision-making A Commission be established to run the affairs of the County during its suspension. Its composition includes as Chair, the Governor of a wellmanaged County nominated by the Council of Counties, approved by Senate and appointed by the President, representatives of the County Public Service Commission (PSC), representatives of the Association of County Governments.
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8.9
CONCLUSIONS
In conclusion, our principal recommendation is that Intergovernmental Relations Bill should be enacted before the operationalization of the County Governments. The intergovernmental institutions identified should be assigned clear statutory mandates and concrete decision-making roles. South Africas Intergovernmental Relations Framework Act, 2005 provides some useful guidelines. The Act sets up various intergovernmental structures for consultation as discussed above. Where the implementation of a policy, the exercise of a statutory power, the performance of a statutory function or the provision of a service depends on the participation of organs of state in different governments, those organs of state must co-ordinate their actions in such a manner as may be appropriate or required in the circumstances, and may do so by entering into an implementation protocol. The implementation protocol must identify any challenges in carrying out the task allocated and describe the roles and responsibilities of each organ in implementing the policy, exercising the statutory power, performing the statutory function or providing the service. The Act also provides for the settlement of intergovernmental disputes but excludes settlement of specific intergovernmental disputes in respect of which other national legislation provides resolution mechanisms and procedures.
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9
9.1
CITIZEN PARTICIPATION AND PROTECTION MINORITIES AND MARGINALISED GROUPS

INTRODUCTION
OF
This part of the Interim Report by the Taskforce on Devolved Government seeks to present a conceptual framework upon which citizen participation ought to be understood and the underlying good practices in the context of implementing devolution and devolved governance as provided for in the Constitution. This is done through presentation of integrated meanings, experiences and practices of citizen participation as a core element of democratic governance in devolved systems. The County is seen as a developmental governance unit thus the discussion, analysis and policy proposes postulated here are benchmarked by the need to locate service delivery as both the rationale for and the content of citizen participation at any level of government. The framework is underpinned by sections that provide overviews on good governance implications of citizen participation, the corresponding strategic objectives of citizen empowerment and operational modalities of citizen involvement in public affairs. This is what provides the nexus between participation and protection of marginalised groups in society. Additionally, the presentation is complemented by infusion of best practises comparative studies and experiences, and, most critical, the provisions of the Constitution and views gathered from the Kenyan public that form the basis of derivation. Thus the resultant policy and legislative recommendations embedded in sections of this part of the Taskforce Report. This part therefore contains wholesome sections on the conceptualisation, discussion, analyses and proposals on citizen participation ingredients, and inclusion and protection of minorities and marginalised groups; the resultant operational imperatives represented by the section on communication and devolved governance, with emphasis on augmenting transparent and accountable governance through continuing engagement of the citizens in civic education on all facets of governmental systems, especially the devolved system. The main aim, as stated in the body of this section is to continuously evolve a graduated culture of responsible citizens and accountable government.
9.2
CONCEPT OF INTEGRATED CITIZEN PARTICIPATION
This section of the Interim Report seeks to bring out, in sufficient detail, an integrated meaning and understanding of citizen participation as a core element of a democratic developmental County as provided for in the Constitution. But most important it seeks to locate service delivery as both the rationale for and the core ingredient for citizen participation at any level of government. It also seeks to provide Page | 166
a conceptual overview of the good governance implications of citizen participation, the corresponding strategic objectives of citizen empowerment and operational modalities of direct citizen involvement in public affairs with a view to underscoring its cross-cutting importance for good governance in sustainable societies. But most important the section seeks to demonstrate the crosscutting character of citizen participation as an essential element in democratic and social development of modern societies. Closer details are envisaged in an overarching policy framework and corresponding statutory spin-offs from the recommendations that are embedded in this section of the Task Force Report. The past two or so decades have been the scene of an increasing devolutionary pressure across the continent and, by extension, affecting a large number of countries worldwide. Kenya has not been an exception. Right at the core of its key pressure point, is the imperative of more direct citizen participation. Although the political build-up of this pressure constitute a highly heterogeneous process, proceeding to different degrees of decentralization and following different political rationales for citizen engagement in matters of public administration, citizen participation remains a cross-cutting concern, the operationalization of which should, at best, find unmediated expression in as many statutory provisions as may be required for a successful implementation of Constitutional provisions of a devolved system of government. With the new Constitution, Kenyans are beginning to see themselves not only as sovereign citizens, enjoying a rich and broadened Bill of Rights, but more particularly as free people constructing their destinies within the framework of a Constitutional dispensation characterized by a much deeper and more disciplined understanding of democracy. Through the lenses of the new Constitution direct citizen participation, as enshrined in the supreme law of the land (Article 1. (1) (2) (4)), consultations with Kenyans reveal that it is now anchored solidly in a value proposition and principle of governance (Articles: 10. (2) (a), (b), the operationalization of which will make a significant difference in the democratic development of the Kenyan society. The Constitution marks a turning point in Kenyas long history of both nation building and democratization of its state sector. The two mutually reinforcing processes are anchored on normative pillars of: subsidiarity, patriotism, solidarity and sovereignty of citizenship. Together and in a complementary manner, they define the extent to which devolution will require the involvement of an active citizenship with the capacity and democratic will to build a viable nation state, ministering the social development interests of a harmonious society. During the public consultations Kenyans of different walks of life may have resorted to different ways of expressing their desire to exercise the right of participation as citizens, particularly within the context of the new devolved system of governance.
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But common to all that they said to the Task Force regarding their basic desire to become real public citizens through participation, is the unmistakable pursuit for engagement in autonomous spaces of participation; spaces that offer greater scope for reconfiguring hitherto skewed power relations and the possibility of extending democratic practices beyond manipulation by authorities. In this particular regard, Kenyans are unanimous in their uncompromising demand for citizen participation away from sham involvement in invited spaces that are merely opened up by the state sector to non-state actors for cosmetic endorsement of predetermined government policies. This demand is borne out of real experiences with actual unitary governmental schemes of ersatz mechanisms that are designed to pass for citizen participation. Most of them still remember, with great disquiet, how Poverty Reduction Strategy Papers (PRSP) merely increased their hope for real citizen participation without bringing them anywhere near real participation in public affairs. The new Constitution builds on a rich and long struggle for citizen participation in public process. At its core is the transformative agenda for democratic citizenship, as an approach to citizen empowerment, which is increasingly becoming a vital element of democratic theory and practice all over the world. Inspired by the spirit of the African Charter on popular participation in development and transformation, the basic principles underlying the practice of stakeholder engagement informs the ongoing discourse on the management of sustainable societies. As a central principle of public policy-making, it presupposes that all levels and functions of government should seek to build citizen and stakeholder involvement into the respective policy making processes and activities. This means that if public participation is to be meaningful and effective, citizens have to be involved in the design and rolling out of the entailed process in order to guarantee optimal democratic ownership of the outcomes. Kenyans, in their large numbers, appreciate the fact that the main aim of devolution is to bring public services closer to the people. But most important to engage them in shaping their destinies in a manner that resonates richly with their democratic will and social development needs. It is against this background that public participation in governance has been received with near euphoric optimism and, by that same token, acquires the necessary prominence as it informs the main thrust of devolution.
9.3
9.3.1
BASIC ELEMENTS OF CITIZEN PARTICIPATION

Citizen Participation as a Right
With the enlargement of the Bill of Rights, as one of the transformative pillars of the new Constitution and the attendant deepening of the reach of subsidiarity beyond its cosmetic limits, Kenyans have been keen to turn the page and begin the long journey towards a more progressive relationship with different levels of government. Broadly,
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they share the belief that this can only come about as a result of: the historic broadening the strategic objectives and the institutional strengthening of the normative wirings of sovereignty of citizenship; keeping alive of the promises of a devolved developmental state; and being ready to subvert the typical spaces of invitation, that have been used by oppressive governmental systems to promote a false sense of participation under conditions that have never allowed for the construction of politically and economically sustainable societies. A great majority of Kenyans aver that it is time for the major deficient and non-meaningful forms of participation to give way to increased accountability, transparency and equityenhancing solidarity. The optimism is shared across ethnic and party-political divides and by that same token forms the basis for driving the necessary consensus around broadly accepted sites, modalities and policy framework/statutory requirements for direct citizen involvement in decision making. The democratic limits and normative deficiency of solely relying on technocratic and bureaucratic monopoly of decision making are no longer an issue for any meaningful debate. The main Article in the Rio Declaration on Environment and Development 88for instance enshrines public participation in its 27 principles. Principle 10, in particular, states that environmental issues are best handled with participation of all concerned citizens, at the relevant levels social organization. A rights based approach to citizen participation requires that modalities be built into all decision making processes, including budgeting, environmental management, development project management etc. in order to enable citizens not only to enjoy the accruing benefits but, more importantly, to own the whole gamut of social development agenda and process. Whereas some of the modalities will require formal and statutory procedures at both the County and sub-County levels others will require broad policy frameworks or organic legislations by parliament that provide broad guidelines on citizen participation. Depending, of course, on the distribution of governmental functions between the national and county governments, the full import of citizen participation can only be realized if ordinary people in the counties and sub-counties can engage these devolved levels of government in both policy making and implementation. Whether or not the platforms of their participation be monthly public Forums (at sub-County level), citizen monitoring and evaluation systems, public hearings, quarterly Revenue Expenditure Forums (at the County Level), procurement oversight committees ( at County and sub-County levels), social budget Forums (County and sub-County levels), environmental management Committee (at all levels from the County down to the location), citizen driven County procurement oversight committees etc., - the entailed citizen implementation must derive their institutional legitimacy and normative authority from statutory and binding policy commitment to the imperative of citizen participation at all levels of government.
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Their mandate and powers should be protected in statutes, with operational procedures sufficiently detailed in the implementation program. Ideally they should be tagged on to more specified service delivery jurisdictions and not turned into allpurpose instruments and platforms for manipulation by more organized but less democratic forces within civil society. Experience in South Africa has shown that the few formal and statutory spaces designated for civic engagement are usually hogged by more organized CSO, leaving individual citizens and less formally organized sections of society excluded from participation. Yet, as far as the need for impacting change is concerned, it is the activities of less organized, more activist oriented actors who have registered the most impressive successes; with impacts that have brought the most significant changes in governance in South Africa. It is therefore imperative that such informal forms of citizen participation and their unique opportunities for participation are equally protected by relevant policy frameworks and subsidiary legislations. The composition of such citizen participation formations are more effective when they draw upon civic commitments of ordinary citizens, representative interests of County Assembly members, technical County government officers, CSO representatives, religious and development partners. To this particular extent citizen participation formations should be demographically representative and socially inclusive of all stakeholders and thus should cut across youth, women, retired professionals, marginalized groups and faith based organizations who offer more civic value-based contributions to upholding community interests. This is the surest way to enhance coordination, joint learning and knowledge sharing among citizens, and also to enhance quality and coherence in policy advocacy. With the increased impact of action research and better communication it is expected that uptake by policy makers will be guaranteed All over the world, citizen participation is generally a costly affair. This is more particularly so if the task of enhancing the capacity of the communities and government personnel in embracing and utilizing participatory approaches remains a core pillar of good governance. Financial support for citizen participation should therefore be a collaborative effort between all the key stakeholders, with public resource playing a key role. In this particular respect, the County governments should partner with the private sector and citizens in funding citizen participation. This should be done as a matter of obligation rather than as a means of insinuating a controlling hand into the domain of citizen participation. The operational modalities of the above citizen participation formations should be dictated by the service delivery needs, sectoral/functional jurisdictions and political auspiciousness obtaining at different levels of governance in the Counties. Going by the experiences in South Africa, general purpose citizen platforms (as suggested by a section of the public consultations and submissions) are appropriate for particular Page | 170
civic actions e.g., petition, public hearings, generating issues for social budgeting etc. This should not to obscure the specificity of service delivery needs of the County populations and, therefore, the necessary focus with which citizen intervention should be designed and carried out on particular civic platforms. With the increasing specialization of operational focus among CSOs, mushrooming of interest groups among the ordinary citizens and single-issue based advocacy interventions increasing in appeal, it is imperative that such spaces are preserved for self-articulation of interest groups and thus catered for in both policy framework and legislation.
9.3.2
Public Participation as a Function of Transparency in Democratic Governance
The right of access to information and the transparency that comes with it underpins two distinctive yet mutually reinforcing principles of democratic governance: publicity of actions and transparency of public administration. It is the strategic conflation of these into a unified scheme of democratic social relations that completes the circle of citizen participation and participatory/open government. Experiences in countries like post-apartheid South Africa have produced examples from which conclusions can be drawn to the effect that even with a plethora of formal mechanisms of citizen participation, the bias in favour of groups with the capacity to self-organize as opposed to those that are unable to do so continues to militate against the possibility of public authorities benefitting from such mechanisms by understanding and responding to the social development needs of the poor. In our not-very-unique case the imperative of transparency in institutions and processes of governance are believed to provide for: Autonomous spaces and open opportunities for stakeholder engagement in public processes in general and in decision making in particular, Predictable instances and opportunities for enforcing and realizing the full expression of democratic citizenship of sovereign peoples, Direct and indirect effects and impacts of citizen inputs into consensus building in decision making Information rich and knowledge-bearing citizenry with the capacity to contribute to and questions policy decisions. In all matters relating to economic and political governance, the Constitution in Article 201 (a) requires unqualified openness and unlimited accountability. Kenyans have been pressing for the actualization of the underlying imperative for many years. In the process they have demonstrated unmistakable interest in having the relevant provisions of the Constitution implemented with the necessary fealty to the spirit of an open society. There is no doubt that realizing this will require appropriate legislative measures that will place unhindered freedom of information and related citizens rights and obligations squarely within the ambit of democratic openness.
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Best practices are available all around us and can be the best sources of ideas that should feed into an appropriate legislation which must take into serious account our unique history and culture. Participation enhances transparency of interaction in the public domain through such facilities as notice board announcements of job opportunities , recruitments information; social/participatory budgeting; opening the budget process to citizen participation; procurement transparency and oversight committees (part of which will be the requirement that procurement records, including a detailed contractor/supplier profiles be made available to the public); monthly revenue and expenditure Report; quarterly development status reports; bi-annual monitoring report prepared through the Sub-County Citizen Forums; County and Sub-County Assemblies ; monthly public revenue and expenditure forums; and quarterly face-toface question and answer sessions with the governor and senator of each County. The legislative elements of each of these instruments and platforms for citizen participation may vary from sector to sector and from County to County. But the overarching national legislation should spell out the normative and ideological foundation of the right of citizens to take part in the making of all decisions that affect their lives. From this the counties can take cue and come up with statutory measure that are not only consistent with relevant legislations at the national level but those that reflect the dynamic of citizen participation needs at that level. Whatever the case such elements must include: equality before the law, solidarity among citizens, accountability of public authorities and citizens, transparency, publicity of actions and intentions of the state/all its organs and state as an instrument of a balance of social forces in society, serving it rather than lording it on the stakeholders. The above citizen participation platforms should be complemented by less formal (but protected by either policy frameworks and statutory promulgations) citizen participation formations like neighbourhood associations/forums, regular or occasional Town Hall meetings, Information bulletins, notice boards, suggestion boxes, web based and mobile phone (SMS) service delivery monitoring, Platforms like Fix-my-Street in England, HUDUMA in Kenya and others. In addition communication laws will need to be changed to support and accord with the popular need for TV, FM and community radio stations ministering to the information and communication needs of the counties and their communities.
9.3.3
Public Participation as an Imperative of Influencing Decision-Making
The process and act of influencing decision making by citizens presupposes that: Rule-making behavior by public authorities is subject to inputs by citizens for purposes of popular ownership and free-willed fealty to the outcomes of the decision making in question,
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It is mandatory as a means of improving the legitimacy and binding authority of decision making and its outcomes, It removes the formalistic trappings of democracy and essentially disciplines the practice of it and thereby making it a way of life rather an imposition by whims of a patrimonial state. It promotes and protects inclusivity in the public life of a community rendering it the only viable basis of democratic citizenship built on the imperative of equity. All this is important for eventual democratic ownership of the effects of decisions made under the above conditions. Experience with LAPDEF in general and CDF and LATF in particular has taught Kenyans that participation is meaningless if the rules of engagement are unilaterally made away from popular participation and mutual accountability. Kenyans, speaking through the consultative forums, have been very clear that they would like to have more say in how they are governed, both within the realm of the economy and politics. And they are ready to benefit from relevant experiences in societies where citizen participation in decision making has borne social development fruits. The Constitution provides for the participation of the public in the exercise of the powers of the state and in making decisions through indirect and direct involvement of the people in the process of policy making (Article 232. (d) and participation in the legislative business of the National Assembly, Senate and County Assemblies. (Article 118 (1) (a) (b), 124.(1) (b), 124. (4) (c), 196. (1) (a) (b). The point is to fortify the entailed Constitutional gains through practically consistent legislations. Some, if not many, of the civic intervention opportunities and sites of citizen participation referred to above will address a good number of the democratic challenges facing the people of Kenya in their incremental struggle to make national and County governments more responsive to the social development needs of all sections of society.
9.3.4
Access to Information and the Right to Effective Democratic Citizenship
Everywhere in the country and at every level of government citizens want to know what is happening around them; all with a view to wanting to manage their lives in a fairly predictable political-economic environment. They seek both general and practical knowledge about their proximate wider environment in order to equip themselves with all that it takes for effective participation in public affairs. This, they averred, should include unhindered access to the minutes of the various committees of County Assembly, Executive committee meetings Spectator sport, reserved for passive subjects, in the way of the limitations of representational engagement with politics and the economy, will no longer do for them. They said as much during the
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consultations with the entailed message continues to reverberate throughout the media. Enforcement of democratic citizenship, their messages convey, requires informed engagement with public policy and effective citizen action. This is based on the assumption that: Information is power and power to influence public policy decisions is the right of every citizen Every citizen is, therefore, entitled to easy access to and practical use of relevant information for society to benefit from his/her participation in its affairs
For effective participation to benefit society it must rely on accessible, timely, accurate and user-friendly information. The spirit behind the above social demand is faithfully captured in the Constitution, particularly where it states, with all the necessary clarity, that every citizen has the right of access to information held by the State (in the Bill of Rights, Article 35). In this particular respect it will be necessary to revisit the provisions of the Freedom of Information Act with a view to synchronizing its legal mechanisms with the spirit of the expanded Bill of rights in the new Constitution. The stalled bill seems to enjoy the support of civil society in general and a wide variety of interest groups in particular. What remains to be done is for a renewed attention and concerted effort to be directed at first-tracking its legislation, particularly given that it is one of the most important pillars of citizen participation.
9.3.5
Citizen Participation and Meaningful Dialogue
It is only through open and appropriate deliberative processes that the legitimacy of decision making will justify binding policy action. This requires the creation of autonomous democratic spaces in which citizens can freely process their social demands and, as a necessary consequence, engage public authorities in making sure that the outcomes of such processes resonate deeply with their social development needs. This should end up turning them into architects of their own destinies and makers of their own history. On how to ensure that the quality of popular dialogue remains high and meaningful, the Kenyan public have made suggestions that range from open neighbourhood forums, town Hall meetings, participatory budgeting to technology assisted/webbased monitoring and discussion platforms. New theoretical developments as well as practical implications, based on best practices elsewhere in the world, should be the basis upon which any legislative anchoring of these democratic innovations will need to rest.
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9.3.6
Citizen Participation as a Condition for Accountability
With widespread impunity continuing to afflict Kenyas body politic and the management of the economy, many Kenyans have welcomed the new Constitution with even greater expectations in respect to better opportunities for their empowerment against the preponderance of state patrimonialism. Most of them are optimistic that, armed with the Constitutional provision on accountability of public authority they are just a short distance away from slaying the legendary dragon of impunity. Ordinarily accountability is often used synonymously with such allied concepts as responsibility, answerability, blameworthiness, liability, and other terms associated with the expectation of account-giving. As a significant aspect of good governance, it has been central to discussions pertaining to decision-making challenges in the public sector, non-profit and private spheres. In public sector leadership roles, accountability amounts to the acknowledgment and assumption of responsibility for actions, decisions, policies and outcomes. This includes the administration, governance, and implementation within the scope of the role encompassing the obligation to own up, report, explain and be answerable for the consequences. In order for accountability to be real, effective enforcement mechanisms must accompany the policy frameworks, statutory provisions and bylaws that will be required to anchor them within the domains of binding rules the infringement of which will attract deterrent actions by legitimate authorities on behalf of the people not for tendentious political competition.
9.3.7
Citizen Participation for Transparency
Freedom of information is the cornerstone to good governance, meaningful participation, and efficiency-enhancing transparency. It is, therefore, recognized by a broad majority of the people as a fundamental human right without which the claim on and the exercise of democratic citizenry and upholding of democratic values of equality and justice remain a pipedream. Sustainable democracy, therefore, depends on a knowledgeable citizenry whose access to a range of information enables it to participate more fully in public life, help determine priorities for public spending, receives equal access to justice, and holds its public officials accountable and for that matter more responsive to the social development needs of the entire population. Inadequate access to public information allows corruption to flourish and breeds unequal access to public resources; and since politics, at its most basic level, is about resource distribution decisions and, for that matter, the red meat of politics, lack of transparency in public affairs is, therefore, a recipe for the dark forces in society to insinuate their malign influence over the development of appropriate social capital. The benefits of such social capital can only be maximized if it is sustained by efficient
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management of knowledge as a conflated product of free, accessible, accurate and timely information. As an imperative of good governance transparency is provided for in the Constitution by the requirement for County Assemblies to conduct their business in open manner and to hold sittings of its committees in public and to facilitate public participation and involvement of citizens (Article 196) (1) (a) (b) in matters of public interest. Budget literacy, not only among the elite stakeholders in the urban areas, is a key ingredient of effective citizen participation. Access to budget information and citizen involvement in all stages of budget process will only be useful if the budget information is appropriately disaggregated to ensure maximum transparency with regard to cost per sector, County, sub County and ward basis. Only then can citizens appreciate their direct involvement in a process that makes meaning for them.
9.3.8
Citizen Participation as a Normative Basis of Equity
Equity in its prescriptive usage and as the philosophical underpinning of democratic governance has a close connection with ethics, morality and justice, in general, and distributive justice in particular. From antiquity onward and for all societies on earth, equality has been considered a constitutive feature of justice. The majority of Kenyans agree. Throughout our history, first as colonized and secondly as a decolonized society, emancipatory movements have used the language of justice to pillory certain inequalities between different sections of our society. But what exactly is the connection between equality and justice, i.e., what kind of role does equality play in a theory and practice of justice? The role and correct account of equality, understood as a critical issue of social justice, is itself a difficult philosophical challenge; and one that hardly lends itself to easy understanding and measurement at the level of outcomes, but rather as a condition that is best appraised at the level of social inputs, such as access to all the basic social and economic services (e.g., education, health etc). This explains, to a large extent, neo-liberal attempts to reduce poverty have failed nearly everywhere in the developing world. It is because the use of poverty index and not the causes of poverty which remain concealed behind all manner of marginalization: poor economic and social infrastructure (poor roads, lack of good schools, no electricity, no clean water, no health facilities. In an attempt to clarify this, philosophers have defended a wide variety of principles and conceptions of equality, many of which are reflected in the Constitution that Kenyans have adopted. The presumption of equality is a prima facie principle of equal distribution for all goods politically suited for the process of public distribution. In the domain of political justice, all members of a given society, taken together as a collective body, have to decide democratically on the fair distribution of social goods. Applied to our political situation and domain, the presumption of equality requires that everyone, regardless of tribal, gender, religious, generational and regional differences, should
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COUNTY VISIT SUBMISSIONS ON PARTICIPATION Develop a Legislation e.g. Participatory Act Establish Sub County Citizens Forum (SCCF) to scrutinize county project planning, budgeting and implementation Forums, neighbourhood associations and Focus Group Discussions (FDGs) Community Based Monitoring System (CBMS) Ward Citizen Forums (WCF) to enable citizen engagement with the right to access all official records for sectoral and county departments. Establish information Centres to access all county information County magazines/monthly newsletters/Information bulletins Establish Commission that will ensure development Create Ombudsman and Public complaints standing Committee Service delivery should be community driven through committees e.g. County Education Committee Organize public Barazas Establish a TV station and FM radio stations Broadcast the County Assembly proceedings to the members of the public Notice boards/suggestion boxes/websites SWAP, service charters and (social networking facilities ) County calendar of events so that citizenry is aware and can participate Community Development Officer who will do planning, monitoring, act as a convener, secretary and information disseminator Continuous liaison between the County, constituencies, locations sub-locations and at village level Social accountability reports Regular consultations with children/guardians to identify needy children, drug and sexual abuse and to include children in children issue prioritization The Senator should have quarterly meet the people forums to listen to the people/State of the County address Legislate designated days when Senator spends times listening to the needs and concerns of County residents The Governor to have face-to-face forums with the public to answer their questions There should be continuous civic education to sensitize public on the importance of their involvement in public affairs. Start at the micro-level by encouraging participation in school and church committees Citizens Assemblies at sub-county level Customer care desks in each county
get an equal share in the distribution of public resources including, public infrastructures, employment opportunities and capacities (Article 10. (2)(b).
If the voices of every section of society, but more particularly from the marginalized in society, could be heard loud and, for a meaningful dialogue to ensure and for a binding consensus to be driven leading to a re-balancing of power relations in society in favour equitable distribution of public resources around the principles of solidarity, conflicts in society would be reduced to manageable levels. Research in Scandinavia and parts of Latin America have established a positive correlation between popular participation, equity and a reduction of conflicts. If citizen participation is embedded in the spirit and practice of devolution the nation building and state-democratization challenges Kenya has been grappling with will be things of the past.

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9.4
PROCESS AND MODALITIES OF PUBLIC PARTICIPATION
Depending on status, role and station in the life of a given society and given the right to choose in which participatory process and modality one would like to be part of, citizens are more than likely to come up with a wide range of propositions. Whereas some may prefer to be part of a social movement, militantly challenging the ideological rationale of policies driving our political economy, others may choose to take part in a public Baraza, listening to the local chief announcing security measures to be undertaken by the Provincial administration. There are, therefore, as many citizen participation processes and modalities as there are different sections of a given social order and corresponding social development interests. In the Kenyan case, it is hoped that the political and cultural dynamics which are going to play out in the various counties will provide unique circumstances on the basis of which different actors from civil society and the state sector will find their location and operational modalities. Whereas it will be necessary if not prudent for a few overarching policy frameworks and legislative measures governing the operations and management of citizen participation spaces to come at the national level, it is advisable that ample room be reserved for the Counties and sub-Counties to live up to the distinctiveness afforded them by the Constitution; by being allowed to involve their communities in the design of the architecture of citizen participation that will accord with local civic and governance needs and challenges. A grand architecture designed from the top is the reason why Kenyans have been engaged in a protracted struggle for renegotiation of a better social contract with themselves and the state. Finally and most important, citizen engagement sites, modalities and processes like Social Budgeting framework, Community libraries, Capacity building will need to be disaggregated along functional and sectoral lines for appropriate statutory institutionalization to follow. The critical elements of both policy framework and sector-sensitive legislative measures, particularly those that need to be mainstreamed in the various sector- and function-based statutory provisions, e.g., in the area of environmental protection, social budgeting, health related areas of civic intervention etc., should draw upon the knowledge of the host sector and inputs from a rich expertise within the relevant non-profit sector. But most important is the broader normative and framework elements of citizen participation that needs to be captured in a broader national policy framework from which relevant organic laws addressing the imperative of citizen participation should cascade into different legislative measures. Such a frame work should lay the legal infrastructure for citizen participation and bring out strategic, administrative and operational elements of the underlying Constitutional provision. Its main elements should include: subsidiarity as an overarching principle, dynamism of popular jurisdiction, autonomy of individual and collective action, solidarity with others and sovereignty of the citizen. The rest of legislations should be mainstreamed into relevant sectoral jurisdictions,
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elaborating with the necessary faithfulness to the spirit and letter of the policy framework and the provisions of the Organic legislations that and subsidiary legislations at the County level.
9.5
PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS
The Constitution of Kenya 2010 (the Constitution) provides a legal framework for the recognition and protection of the rights of the minorities and the marginalised communities and groups (herein after referred to as the marginalised). The Constitution introduces a rights based approach to development, that is, an approach where everyone is entitled to development as a right and not as a favour from the state. The Constitution affirms that the sovereign power belongs to the people of Kenya and can be exercised in the two levels of government i.e. the National and County governments.89 The Constitution under Chapter IV, the Bill of Rights, provides a framework for affirmative action that ensures that minorities and the marginalised are brought up to speed in social economic and cultural development. This chapter of the paper is intended to inform laws and policies that are going to be formulated and enacted on devolution that have a bearing on protection and participation of minorities and marginalised groups and communities . Part one will discuss the principles that inform the protection of marginalised groups and communities. Part two of this section will focus on understanding the terminologies used. Part three will discuss the problems faced by the marginalised groups. Part four will identify the remedies provided under the Constitution and Part five will suggest the required legal, policy and institutional measures. To enable us propose these measures we shall give examples from other jurisdictions where applicable.
9.5.1
Principles for Protecting and Inclusion of Marginalised Groups
9.5.1.1 The Principles of Participation The participation of marginalised groups and communities in the affairs of a state is crucial in a democratic society. Indeed when the marginalised groups are involved in decision making and implementation of laws and policies, they are able to influence the governance of a state in manner that will promote the attainment of equity. Art. 10 of the Kenyan Constitution recognises public participation as a value that should guide the interpretation and application of laws and policies in Kenya. However these values must be made operational through established legal mechanisms and institutions which will ensure effective participation of the marginalised in public life. The institutions must exercise authority and responsibility to ensure that the minority, marginalized groups and communities realise their Constitutional rights.
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To attain the principle of participation, states are expected to respect both the process and outcome of decision making. Governmental agencies and independent commission and offices should pursue an inclusive, transparent, and accountable process of consultation in order to ensure that minorities and marginalised groups and communities are catered for. There must be a monitoring and evaluation mechanism that will ensure that the desired objectives are achieved. 9.5.1.2 The Affirmative Action Principle Affirmative action has been defined as those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. 90 According to the United Sates Commission on Civil Rights,91 affirmative action is a contemporary term that encompasses any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex, or disability, along with other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and/or to prevent the recurrence of discrimination in the future Affirmative action can also be defined as public or private actions or programs which provide or seek to provide opportunities or other benefits to persons on the basis of, among other things, their membership in a specified group or groups. Affirmative action is often used to denote a positive step taken, as well as more specifically to denote, an attempt to reverse or mitigate past discrimination and historical injustices. Affirmative action is intended to address various objectives namely:
i.
Remedy past discrimination
Affirmative action enables a state to relook at past discrimination meted against marginalised groups. The intention is to erase the effects of past discrimination. This is done by favouring the victims in a manner that will hasten their integration to the mainstream society. The implementation is through programs that can benefit particular individuals of a society or group that are marginalised. It can also be done by addressing the marginalised group as a whole through reparation programs and projects. In the former instance it can be done by employing individuals, providing education scholarships, distributing business capital to individuals among other. On the later, infrastructure such as roads, electricity supply, and water supply can be used to target a group as a whole. The Kenyan Constitution takes both the individual benefit approach and the whole group approach. Under Art.56 individuals will be accorded education, employment and appointment opportunities to individuals belonging to a minority group or marginalized community and group. Under the same Article, communities are
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entitled as a group to benefits such as development of cultural values, languages and practices, access to health services, infrastructure, water, and electricity among others. Art 204 creates an equalization fund meant to provide basic services to marginalized areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible. The marginalized areas are supposed to be places where marginalized communities exist as clarified by Art.204 (3) (b).
ii.
Enhancing diversity.
A state will be able to grow with better values, peace and stability is diversity is natured and appreciated. Affirmative action will help build a diverse and inclusive society. It is therefore imperative to take deliberate measures such as favoured consideration of companies of marginalised groups in public procurement and allocation of contracts, school admissions, and employment among others.
iii.
Increasing the political power of the marginalised.
Affirmative action can increase representation and political power of the marginalised. This is done by creating special electoral units that will increase the representation by marginalised groups especially the minorities. On the other hand political appointments can be done to fill the gaps where marginalised groups may not get a chance through popular vote. It is however important to come up with a system that will ensure that those appointed through political parties are persons that are desired by the respective groups.
9.5.2
Definition of Terms
9.5.2.1 Marginalised Community
The Constitution defines marginalised community as:92

a community that, 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; b. 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 as a whole; c. an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or d. pastoral persons and communities, whether they are i. nomadic; or ii. a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole; Of the above definitions, the terms that demands further explanation is indigenous community. This term requires critical analysis because it is not only controversial but its use at international level has been opposed by African countries. The argument has been that everybody in Africa is indigenous and thus there should be Page | 181
a.
no need for having special protection of other people in the name of indigenous persons. 9.5.2.2 What does Indigenous People or Community mean? There is no one single definition of indigenous people. In fact attempts to have one definition have been resisted. According to the African Commission on Human and Peoples Rights (ACHPR), the danger of a strict definition is that many governments may use a strict definition as an excuse for not recognizing indigenous peoples within their territories.93 According to the Special Rapporteur on Situation of Human Rights and Fundamental Freedoms;94 There is no internationally agreed upon definition of indigenous peoples. Different states adopt different definitions in terms of their particular contexts and circumstances. The term indigenous is frequently used interchangeably with other terms, such as aboriginal, native, original, first nations or else tribal or other similar concepts. In some states local terms might be commonly used that are not easily translatable. In still other countries, no formal designation exists even though there might be general agreement that such populations do in fact inhabit certain areas of the country. And in still other countries, the existence of indigenous groups is denied altogether and therefore their definition becomes even more problematic, yet the absence of an international definition should not prevent constructive action in the promotion and protection of the human rights of indigenous peoples. Under the existing international legal framework , there is no definition of indigenous people or communities. But there are indicative characteristics that can define such a group. According to the ILO Convention No. 169 Indigenous and Tribal Peoples Convention, the following characteristics define indigenous peoples;95 Traditional life styles; Culture and way of life different from the other segments of the national population, e.g. in their ways of making a living, language, customs, etc.; Own social organization and political institutions; and
Living in historical continuity in a certain area, or before others invaded or came to the area. Art.1 (2) of the ILO Convention provides that self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups. It is important thus to recognise that in the Kenyan context, there is likely to be a challenge dealing with indigenous people because the list is endless if selfidentification is to be taken as one of the criteria. There is fear that self-identification will be used as a means of taking advantage of Constitutional provisions while in the real sense a group is not indigenous. This can be sorted by requiring that such group must not be the dominant in society. There are factors that can point to the concept of non-dominance. They are;96 Numerical inferiority; Their ways of life and social organisation; and Page | 182
Their distinctive cultures. It is acknowledged however that a group might be the majority but victims of marginalisation by another group with a smaller population. In most cases, indigenous groups are referred to as minority because in many instances there are the numerically inferior group. However as discussed below there is a difference between COUNTY VISIT SUBMISSIONS ON CRITERIA FOR DETERMINING indigenous and minority MARGINALISED GROUPS groups. Indeed, the ACHPR has recognized a number of misconceptions in Africa about indigenous rights. The first misconception is that, to protect the rights of indigenous peoples would be to give special rights to some ethnic groups over and above the rights of all other groups within a state97. Since certain groups have been discriminated upon based on their unique circumstances, then a call to protect them is not discriminatory but an affirmative measure to address injustices. The second misconception the Commission identified closely related to the first misconception is that the term indigenous is not applicable in Africa as all Africans are indigenous98. According to the Commission:
less populated areas, poverty index, historical injustice, infrastructure, baseline survey ,lack of services
Marginalised are children with special needs, women, girls and handicapped people, displaced people, sick, aged and youth ,disabled, unemployed, People Living With HIV/AIDS,
Can be identified by tribe, age, religion, education, widows, ownership, elderly
Per capita income, and physical environment can be used. Objective way of determining marginalized groups be formulated
Minorities be determined by population size, level of drought and poverty.
Single mothers and religious groups be considered as marginalised groups
Development level, ASALs areas, socio-economic status, census, history of leadership, literacy level, elderliness
They are marginalised if they have no leaders in parastatals from their county
They can be identified through the indigenous people framework
Census approach use social and economic indicators for identifying marginalized groups or use census figures to identify marginalized groups
Use the previous census to identify them or conduct another census specifically for these groups and use of tribal census to determine minorities
When some particular marginalized groups use the term indigenous to describe their situation, they use the modern analytical form of the concept (which does not merely focus on aboriginality) in an attempt to draw attention to and alleviate the particular form of discrimination they suffer from99.
Marginalised groups are communities not allowed education during colonial period and are academically now marginalized.
Professor Stavenhagen100 reinforces this point of view by stating that the definition of indigenous people;
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From a human rights perspective is not who came first but the shared experiences of dispossession and marginalization. The term indigenous is not intended to create a special class of citizens, but rather to address historical and present-day injustices and inequalities. The third misconception identified by ACHPR is that talking about indigenous rights will lead to tribalism and ethnic conflicts. According to the ACHPR:101 Giving recognition to all groups, respecting their differences and allowing them all to flourish in a truly democratic spirit does not lead to conflict, it prevents conflict. What rather creates conflict is that certain dominant groups force through a sort of unity that only reflects the perspectives and interests of certain powerful groups within a given state, and which seeks to prevent weaker marginalized groups from voicing their particular concerns and perspectives. Or put another way: conflicts do not arise because people demand their rights but because their rights are violated. There are three major and crucial differences between minority rights and indigenous rights. First, minority rights are formulated as individual rights whereas indigenous rights are collective rights102. Second, unlike minorities, the indigenous groups are characterized by their strong cultural bond to their lands, without which they would not exist as a cultural entity and their lives would be in great danger103. Third, while minorities are identified based on numerical inferiority within a state, the indigenous identify themselves in regard to particular territorial land whether within a country or even beyond the borders of a state.104 Indeed, they claim their rights based on social factors that existed even before the state was established. The UN Rapporteurs report identified indigenous people in Kenya to be the minority hunter-gatherers and pastoralists who live mostly in the arid and semi-arid lands, such as the Elmolo, Maasai , Endorois, Borana, Gabra, Pokot, Samburu, Turkana, and Somali, and hunter-gatherer communities whose livelihoods remain connected to the forest, such as the Awer (Boni), Ogiek, Sengwer, or Yaaku. Other groups such as the Nubians consider themselves as a minority that has also been marginalized, but in an urban context. 9.5.2.3 Marginalised Groups Article 260 of the Constitution defines a marginalized group as a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4); i.e. any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In this case women, youth and people living with disabilities are considered marginalised groups in Kenya. There are various considerations that must be observed when determining marginalised groups and communities. These are:
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Historical injustices a. b. c. d. e. f. g.
Poverty index Adverse climatic conditions Baseline data Landlessness/ squatters Infrastructure development Economic status Special interest groupings e.g. persons with disabilities
9.5.2.4 Minorities There is generally no single agreed definition of minorities in international law. A 1977 study made for the United Nations defines minorities as; A group numerically inferior to the rest of the population of a State, in a nondominant position, whose members--being nationals of the State being nationals of the State--possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language105. According to Minority Rights Group International,106 minorities are disadvantaged ethnic, national, religious, linguistic or cultural groups who are smaller in number than the rest of the population and who may wish to maintain and develop their identity.
Poland define an ethnic or national minority as a group of Polish citizens who wish to preserve its language, culture, tradition and national (or ethnic) consciousness and who remains in minority in relation to the rest of society107. To qualify as ethnic or national minority once ancestors must have been living in the present Polish territory for over a hundred (100) years. This definition is controversial because it omits new cases of minorities or future minorities. In a number of counties, the citizens emphasised that to be a minority in a particular county, you must have been born there. Still others insisted that the County should be your ancestral land. However this must be weighed against the need to avoid polarization and maintain national unity.
The above creates a problem of exogenous and endogenous minority. There is need to deal with the issues of endogenous and exogenous minorities. According to Professor Van der Baken endogenous and exogenous minorities are defined as follows: Endogenous minorities are those ethnic groups that have traditionally lived in the territory of the region. Exogenous minorities are ethnic groups that have migrated to the region in the recent past and are endogenous in another region. We could also call them internal migrants.108
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In most of the Counties the proposal was to afford protection in the County Government only to those who originate from the County. People were opposed to the protection of economic migrants. There was insistence that for a group to receive privileges accorded to minority and marginalised groups and community in a County, they must have substantial ties with that County. There are two ways of defining minorities. First are minorities defined best on national demographics and second is minority defined using demographics within the geographical boundaries of a county. The former will accord protection to national minorities while the later will afford protection to even those who are national majority if they find themselves in a situation where they are a minority in a particular county. The specific rights of persons belonging to national or ethnic, religious or linguistic minorities include the right to enjoy their own culture, to practise their own religion, to use their own language, to establish their own associations, to participate in national affairs etc. These rights may be exercised by persons belonging to minorities individually as well as in community with other members of their group. There are the various factors are that must be considered in determining minority groups: a. b. c. d. e. f. g. h. i. j. k.
Poverty index Numerical inferiority Climatic conditions Baseline data Infrastructure development Economic status Historical Injustices Special groupings e.g. persons living with disabilities Language Religion Age Problems Faced by the Minorities and Marginalised Groups & Communities
9.5.3
9.5.3.1 Problems faced by the Minority and Marginalised Communities The first and foremost, the major problems faced by minority and indigenous people are loss of land rights, historical land injustices, exploitation of resources without their participation or accruing the benefits. There are various examples of these problems in the Kenyan context. In the Endorois case109 before the ACHPR, the Complainants (Endorois) alleged violations resulting from the displacement of the Endorois community, an indigenous community, from their ancestral lands, the failure to adequately compensate them for the loss of their property, the disruption of
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the community's pastoral enterprise and violations of the right to practise their religion and culture, as well as the overall process of development of the Endorois people. Such cases are replicated in other communities like the Ogiek and Sengwer who are under constant evictions from their ancestral lands in the desire to protect forests. Probably the old and most cited land problems involve the Maasai and Samburu. Land problems among the Maasai dates back to pre-colonial period when the Maasai signed the treaty with the British Crown known as the Anglo-Maasai Treaty in 1904. This treaty was violated leading to the misappropriation of Maasai land. A case filed by the Maasai was dismissed on technicalities.110 Other cases involving the Ogiek have been instituted in Kenyan courts with no success.111 As shown in the Endorois case, successive governments have been perpetrating the colonial policies of depriving the minority/ indigenous communities land in the pretext that they are protecting the environment and natural resources. Lack of recognition of land rights has advanced the further marginalization and impoverishment of these communities. The second problem is the government biased development policies. In Kenya, development has been projected as a favour that is only extended to those who have the numbers to influence those in power to extend development to them in exchange for votes. As a result of such policies, the problems now faced by the minority /marginalized groups are, soaring unemployment, weak presence in the public sector, violation of language rights and the lack of socio- economic development. Marginalized minorities are often left out in economic development. The most underdeveloped areas are where minorities are situated. This is in line with the past government policies that perpetrated votes based/charity based, favour based approach to development. Often you will hear citizens in Turkana, North Eastern, the Sengwer, Ogiek etc complaining of being treated as second class citizens. These groups are always faced with extreme starvation and instead of adopting long term policies to address their plight the government has focused on short term relief programs. The third problem is lack political representation, recognition and participation. By virtue of their numbers, the minority and marginalized communities are unable to succeed having one of their representatives garner an elective office. There is also no meaningful participation in civil service and public offices where decision making is made. This is partly because they are not educated or have been utterly ignored. The fourth problem is the denial of cultural rights. The minority indigenous groups have suffered loss of culture as a result of the domination by the other communities. The main objective of the colonial government was to erase the identity of smaller
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community and thus get them swallowed by the majority groups. The case of Sengwer is a good example. Kiptum and Odhiambo state: I agree then the recommendation reported in the prescription that wherever possible the Dorobo should become members of and be absorbed into larger tribe which they have most affinity.112 In view of the complications that would arise having Cherangany officially residing in two different Districts and under two separate Provinces, he (the District Commissioner) would reluctantly agree to the move (of Cherangany from Marakwet to West Suk) out of sympathy with the District Commissioner Tambach, Forest Preservation Policy, and provided that the Cherangany in question would agree to surrender their tribal identity.....113
With this kind of policy loss of identify, language and culture has been systematically meted against the minority/indigenous groups.
The fifth problem is that of insecurity. The areas occupied by the minority and marginalised communities have serious insecurity problems. Security will remain the greatest challenge in facilitating the economic development of the marginalized areas.
The UN Rapporteur concluded on indigenous people that their livelihoods and cultures have been traditionally discriminated against and their lack of legal recognition and empowerment reflects their social, political and economic marginalization.114 The Rapporteur further stated as follows: The principal human rights issues they face relate to the loss and environmental degradation of their land, traditional forests and natural resources, as a result of dispossession in colonial times and in the post-independence period. In recent decades, inappropriate development and conservationist policies have aggravated the violation of their economic, social and cultural rights. The lack of social and health services in indigenous communities is especially hard on women and children, who suffer gender inequalities and discrimination, especially with respect to property rights, and harmful traditional practices that are also conducive to the increasing spread of HIV/AIDS amongst these communities.
The minority groups are often excluded in accessing employment opportunities. In a country that largely relies on numerical strengths, the majority groups domineer over the minority. The latter groups have no access to education which inhibits their ability to qualify for jobs. 9.5.3.2 Problems faced by Youth, women and disabled as marginalised groups
i. ii.
Being subjected to cultural beliefs and practices that subordinate them. Exclusion from leadership and decision making.
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COUNTY VISIT SUBMISSION Awareness creation through civic education i.e. educate people on matters of marginalizationby providinginformation on minorities and marginalized members of community be made available at chiefs level and displayed in public. Sensitisation of the marginalised communities themselves to understand that they have equal rightsand setting up information Centre's. Publish regular reports Public Participation & Communicationincluding participation in development plans and inviting the public to make submissions through open Barazas and town hall meetings. Public to have access to county assembly debate proceedings Regular free and fair elections Representation e.g. Executive members must be from all areas of county, women be included and youth be considered. Executive positions be advertised and running mate of governor be of opposite gender. Education should not be a basis for leadership position-marginalizes those that have not had similar educational opportunities and those that competitively vie for seats be considered for special seats if they are unsuccessful County govt. should have one third positions reserved for the marginalized in the county.(e.g Gender, people living with HIV/AIDS/disabled) Proper representation of minorities and the marginalized in all sectors of the government County to form disability committee and include disabled in each county committee and legislate for their protection Gender consideration in county governance Minority be given own wards Marginalised groups be determined after elections based on communities who have not elected any of their own to positions Marginalised groups be determined after elections based on communities who have not elected any of their own to positions Disabled be involved in all county committees of which 5% of funds be given to disabilities Affirmative action for marginalized groups through legislation of affirmative action in county civil service and hiring of people with disabilities as well as a database for marginalized groups. Protection of youth through tender and managerial positions reserved for youth Infrastructure e.g set up an Electoral College and establish an office or body at county level to deal with marginalised groups and set up an office and a resource and care Centre for people with special needs/challenges. County government should build schools for the disabled in each district. Infrastructure be based on full implementation of the Disability Act and engendering the legislation as a way of ensuring majority rights. The Human Rights Commission should establish offices at the county level Establish a Public participation and Oversight Committee ID be given to marginalized (e.g. Endorois and pastoralists) who do not have them. Friendly environment to cater for disable people Chiefs and church elders to recognise marginalised groups Political parties cannot protect minority rights (bias) Women friendly hours of business Respect for minority rights Funds: Access to equalization fund and poverty index and rates be used to determine allocation of Equalization funds. In addition the marginalised to determine how their funds are to be used. The poor and marginalised should be supported Fund be set aside for the elderly Marginalised groups be granted equal opportunities
iii. L ack of access to property. iv. D iscriminative laws and policies. v. L ack of affirmative action. vi. H uman trafficking and prostitution especially on the part of women and young girls. vii. V iolence especially against women and disabled. viii. R estriction of the freedom of movement and expression especially among the disabled. ix. I nequality in attaining citizenship especially among women.
This Policy interrogates how the devolved
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system will ensure that the marginalised communities and groups plus minorities are going to be protected and involved in governance.
9.5.4
Solutions Provided Under the New Constitution
9.5.4.1 Devolution as a Solution It is argued that Devolution presents the best opportunity for dealing with marginalization. According to one author commenting on the Indian system states thus: Federalism is no doubt, the useful answer for managing conflicts and accommodating the diverging interests and to establish peace and order in a pluralist democracy. Federalism is not only an effective tool for managing conflicts but it is widely considered as an effective instrument for protecting the democratic rights of people in the decision making process of different tiers of the polity.115 Though Devolution has been projected as the best solution, Professor Keating outlines the criticisms of federalism in a divided society. He states thus:116
a.
Where the federated or devolved units represent distinct nationalities, they will regard themselves as sovereign and self-determining, and their leaders will merely use the institutions as a way of expanding their powers and undermining the state. From this it follows, ironically, that federalism will only work in homogeneous societies (where we might think that it is not needed);
b. Since the territory of a federated unit will never correspond perfectly to a nationality group, that federalism or devolution will merely create new discontented minorities within the new units, leading to recurrent challenges and divisions.
In turn Prof. Keating concludes that federalism or devolution in itself thus does not represent a definitive solution to conflicts of nationality. It may be a contribution to accommodation, but only in the right conditions and by paying attention to issues of institutional design.117 Through this policy Kenya has the opportunity of adopting laws, regulations, policies and strategies that will give the right conditions to devolution in Kenya. It gives Kenya the best opportunity to design the right institutions that protect the interest of the minorities, the youth, and persons with disability, women and other marginalized groups within Counties. Failure to do this will give birth to just another level of discrimination. According to Prof. Keating, for one to design the right institutions you have to understand the problems that devolution was established to solve.118 The overall objective of devolution in Kenya as indicated in the Constitution was to diffuse power from the centre to the counties. The Constitution of Kenya lists the specific objectives of devolution to be among others;119
a.
to foster national unity by recognizing diversity;
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b. 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; c. to recognize the right of communities to manage their own affairs and to further their development; d. to protect and promote the interests and rights of minorities and marginalized communities; and e. to ensure equitable sharing of national and local resources throughout Kenya. In cases such as Federalism further decentralization is encouraged to bring governance closer to the people. It is noted that:
Decentralization no doubt, makes the federal system more democratically and politically balanced and establishes new institutional arrangements for political participation of different sections of people in a society having diversity and multiculturalism.120 He adds: Decentralization facilitate to articulate the choices of these different groups and protect their cultural identity and this in turn helps to enhance the trust and sense of ownership of the people in a multi-cultural society.121 Further decentralization enables the people to demand and government to deliver better services to the people and to redress social economic inequalities. Further decentralization will take governance closer to the people and enable them to audit and hold the government more accountable. In India, 73rd and 74th Constitutional Amendments created Rural Local Governments and Urban Local Governments respectively. These Local Authorities paved way for devolution of powers and resources further within the various States. In the Kenyan context, when the debate was raging, a number of communities were opposed to the number of Counties, the boundaries and the composition. In Busia County, the Sabaot were opposed to the constitution because they had been grouped together with a large population of the Luhya community. In Elgeyo-Marakwet County, the Marakwets were opposed to them being grouped with the Keiyos because of past marginalisation. In Baringo County, many minority groups such as the Pokots, Njemps, Endorois and Arror feared the other dominant Tugen communities. In Migori County the Kuria were opposed to being grouped together with the Luo majority. In Garissa County the abdalla clan of Ijara did not want to be grouped together with the dominant Abudwak and Aulihan clans. In our county consultation, these communities insisted that there has to be decentralized units known as subcounty 9.5.4.2 Other Constitutional Solutions The Kenyan Constitution 2010 introduces the concept of rights based approach to development. Development is no longer a gift but a right which all citizens regardless of their status are entitled. The Constitution recognizes the fact that there are certain
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vulnerable members of the society who need specific attention and protection. The Constitution thus makes provisions on affirmative action to remedy the injustices meted on the marginalized groups and communities. To start with, Article 10 (2) of the Constitution lists national values and principles of governance to include, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. As a matter of principle therefore, the people of Kenya agreed to protect the marginalized. Indeed Article21 (3) provides that all State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. Article 27 (4) outlaws any state discrimination on the basis of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 56 provides that the State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups: a. participate and are represented in governance and other spheres of life; b. are provided special opportunities in educational and economic fields; c. are provided special opportunities for access to employment; d. develop their cultural values, languages and practices; and e. have reasonable access to water, health services and infrastructure. There is need for making these provisions operational in the devolved government. In terms of political representation, Article 91. (1) (e) requires every political party to respect the right of all persons to participate in the political process, including minorities and marginalized groups. Article 100 requires Parliament to enact legislation to promote the representation in Parliament of, women, persons with disabilities, youth, ethnic and other minorities and marginalised communities. These positions are expected to be filled by the twelve nominees as provided for under Article 97 (c) of the Constitution. The Objects of devolution under Art.174 (e) of the Constitution is to protect and promote the interests and rights of minorities and marginalised communities. Article 177 (1) (c) provides that County Assembly should consists of the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament. Under Article 197 (2) (a) and (b) Parliament is required to enact legislation to ensure that the community and cultural diversity of a County is reflected in its County Assembly and County Executive Committee and prescribe mechanisms to protect minorities within counties. Protection of the marginalized groups is also reflected in the principles governing public finance. Article 200 (b) (iii) provides that the public finance system shall Page | 192
promote an equitable society, and in particular that the expenditure shall promote the equitable development of the country, including by making special provision for marginalized groups and areas. To that effect, Article 204 (2) obliges the National government to use the Equalisation Fund only to provide basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible. Under Article 204 (3) (b) the National government may use the Equalisation Fund either directly, or indirectly through conditional grants to Counties in which marginalised communities exist. Under Article 216 (4) relating to the functions of the Commission on Revenue Allocation, the Commission is required to determine, publish and regularly review a policy in which it sets out the criteria by which to identify the marginalised areas for purposes of Article 204 (2).
9.5.5
Recommended Legal, Policy and Institutional Interventions
9.5.5.1 Further Decentralization Under the Kenyan Constitution, there is opportunity for further decentralization of County functions and services. It is an opportunity thus for Kenya to think about the best mechanism of further decentralization. How can this be done: The urban centres to be created under the Constitution shall be avenues for further decentralization. In the urban areas, there should be nominees for the minority and marginalized groups. Kenya can also come up with village councils. Further smaller rural governments can be created to facilitate services to be taken closer to the people. The boundaries of these authorities should take cognizance of the interest minority and marginalized communities so that some authorities are curved specifically for such interest groups.
9.5.5.2 Mandatory County Strategic Plans This paper opines that through legislation, a County must come up with a County development plan/strategic plan which shall be the basis for resource allocation. Such a development/strategic plan shall be prepared using bottom up approach where the views are collected from each local administrative unit. The concerns of women, youth, disabled, marginalized communities, children, and minorities should be captured in the County plan. The plan should be debated and adopted in the County Assembly. The Constitution states that it is the duty of the County Assembly to receive and approve plans and policies for(a) the management and exploitation of the Countys resources; and (b) the development and management of its infrastructure and institutions. The approval of these plans should also involve the Senator, members of National Assembly from the County. But it is the County government that will take responsibility and leadership in the process. This will be Page | 193
useful in ensuring that the County government will not ignore any region, group or community in the process of development. This will also shield the population from the short term interests of politicians. As per Article 220 of the Constitution, parliament must enact legislation that provides the structure of the development plans and budgets of Counties, the time the plans and budgets of the Counties shall be tabled in the County Assemblies, and the form and manner of consultation between the National and County governments in the process of preparing plans and budgets. These are issues that shall also be addressed from the planning and financing perspective. It suffices to note at this juncture that the plans must be consultative. The people have the right to determine the priorities and strategies for economic and social development. This includes the right to determine the health, housing, infrastructure, and other economic and social programs and, to the extent possible, to deliver these through their participation in County government. To ensure that these plans are catering for marginalized groups and communities, there must be a binding monitoring and evaluation mechanism that will ensure that the County is protecting and involving the minority and marginalized groups in development. 9.5.5.3 Participation in Governance and Public Service As per the Constitution, devolution legislation can reaffirm the requirement that minorities and marginalized in the decision making and power structures. That means that they must be adequately represented in the County Assembly and the Executive. Their participation should include involvement in public service. These are policy positions that County governments must report on. The legislation should create timelines within which County government shall report on the number of appointments made to ensure that minorities, marginalized groups and communities are adequately involved. The structures and decision-making processes of the counties should be made transparent and accessible in order to encourage the participation of marginalized groups and communities. 9.5.5.4 Community Interests, Decentralisation Units Delimitation of County Wards and
The demarcation of the wards should ensure that minority groups are considered. Arguments for the demarcation are based on the practice of ethnically based devolution. Indeed, the Kenyan devolution is ethnically based. Most of the Counties are inhabited by one ethnic majority. Although this gives national stability by making these communities determine their own social economic development and culture, it creates other minorities. It is for this reason that the ethnic minorities in certain
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counties have raised concerns. These Counties are like the issues of Kuria in Migori County, the Sabaot in Bungoma County, the Sengwer/Cherangany in ElgeyoMarakwet and Trans Nzoia Counties, the Pokot in Baringo County etc. The challenge of official recognition of ethnicity is that with the benefit that come with it, some groups that did not originally see themselves as separate ethnic units may begin to see themselves as such. This is the case in places like Nyanza where the Suba community may begin to see themselves as separate group from the other Luos. However, this is inevitable because we have already recognized ethnically based Counties. The recognition of ethnic or racial minorities is not new. Ethiopian Constitution created ethnic based federalism with nine states namely: Tigray, Afar, Amhara, Oromia, Somali, Benishangul-Gumuz, the State of the Southern Nations, Nationalities and Peoples, Gambella and Harar. Of the nine states, the Southern State is multi-ethnic with most of the communities made up of small population. According to one author: ... there are no less than 56 different ethnic groups (or - to use the official vernacular -nations, nationalities and peoples) in the region. Some of these groups have more than one million members (such as the Sidama and the Gurage), but most are very small, each amounting to no more than some tens of thousands of people. Despite the existence of some larger groups, it is important to note that not a single group has the numerical majority.122 Article 45 (1) of the Southern States Constitution provides a four-tier internal administrative structure: the regional/state level, the Zonal/Special Wereda, the Wereda level and finally the Kebele level.123 The Zones are ethnically based territorial entity. This guarantees the representation of all ethnic groups in the regional assembly. In the same breath, Kenya should create wards and decentralisation units that will cater for the interest of the minorities. In Ethiopian case there is distinction between the endogenous and exogenous minorities. Similar territories have been created for minorities in Canada, India and Bosnia Herzegovina where a special district called Brcko was created. In other countries, minorities are afforded protection through non-territorial federalism. This is meant to extend public support and privileges on a personal and non-territorial basis to members of a specific community. This is the case in the protection of German-speaking Belgians in Belgium. It is therefore necessary that where minorities are concentrated territorially, single member wards may provide sufficient minority representation.
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9.5.5.5 Kenya National Human Rights and Equality Commission (KNHREC) and County Institutions The Commission should be the institution that monitors the participation and protection of marginalised groups and communities in the devolved system of governance. Since these are shared institutions they must ensure that their offices and functions are decentralised to all corners of the country to monitor implementation on issues relating the protection of marginalised groups. In the Sixth Schedule of the Constitution, the Kenya National Commission on Human Rights and the National Commission on Gender and Development are merged and now form the interim Kenya National Human Rights and Equality Commission. In the transition period therefore, the KNHREC should reorganise its operations in such a manner that entitlements of minorities and marginalised groups are secured. The County government should designate one Executive member to deal with issues of marginalised groups and communities. This member will report periodically to the County Assembly Committee in charge of marginalised groups and communities on efforts that the government is putting to address the concerns of the marginalised groups and communities. The County should establish advisory, Monitoring or consultative body within appropriate institutional frameworks to serve as channels for dialogue between County government and the marginalised. Such body might also include special purpose Committees for addressing such issues as housing, land, education, language, and culture. The composition of such body should reflect their purpose and contribute to more effective communication and advancement of the marginaliseds interests. The body will thus advise the County government through the designated County Executive. County governments and the commission should undertake an inventory of existing marginalised groups to obtain a clear understanding of their current status and how to help realise their rights The Kenya Human Rights and Equality Commission should come up with National Equal Opportunities Policy to guide the whole country on the issues of protecting marginalised groups. Further, Article 59 (4) and (5) in the Bill of Rights prescribes that Parliament shall enact legislation that may restructure KNHREC into additional commissions. In effecting this clause it is imperative that new look Gender Commission, Commission on Minorities and Marginalised, Commission on Persons with Disabilities and that of Youth are established. In the alternative, fully fledged departments of fused additional commissions are specifically established to cater for minorities and marginalised groups. Finally, in the restructuring of the current national Executive to accord with the Constitution, and where line ministries will be downsized to a maximum of 24 from Page | 196
the existing 40, it is imperative that Parliament creates institutions that will secure and nurture interests of minorities and marginalised groups, including women, youth, children, persons with disabilities and senior citizens. This principle should likewise apply in the establishment and functioning of the County Executive. 9.5.5.6 County Government as a Facilitator of Minority and Marginalised Groups Rights a) Indigenous peoples are entitled to maintain their distinct identities, to maintain their languages, and to maintain the integrity of their relationship with their traditional lands. Thus, developmental acts by the County governments must not violate these rights. County governments should facilitate the attainment of such rights. What are the policies on education in mother tongue? In this case, Counties are key in so far as pre-primary education is concerned as being at the centre in relation to national legislation and policies.124 Protection of marginalized groups from harmful and repugnant cultural beliefs and practices. b) Changing attitudes and perception of members of the public regarding marginalized groups through such acts as the naming of streets and towns using minority languages. c) Counties investing in culture and cultural activities with special consideration for the minorities. The County government is empowered by the Constitution and allocated the resources to manage minority issues under Schedule IV of the Constitution. d) There must be a deliberate effort to allow the minority and the marginalized to access employment opportunities in the County. e) Protection of intellectual property of minority and marginalized communities, including sciences, technologies, medicines, and knowledge of flora and fauna as well as arts and performances. Legislative Proposals a) Minorities and Marginalized Communities Act It will define minorities and marginalized communities Consolidate the benefits accorded to these groups
Provide legal and institutional mechanisms for realizing the benefits outlined in Art.56 and 204 of the Constitution. b) The legislations relating to Marginalized groups shall be provided for in the respective laws e.g. Persons with Disability Act of 2003, and international conventions ratified by Kenya such as the Convention on the Elimination of All Forms of Discrimination (CEDA) and the UN Convention on the Rights of Persons with Disabilities. Other legislation on youth can be enacted.
9.6
CONCLUSIONS
This foregoing unit has put public participation in perspective in reference to such governance issues like transparency, accountability, decision-making and equity. The unit also integrates issues of inclusivity for the marginalized and minority in the context of public participation in a democracy, and unveils proposals for legal, policy and institutional interventions. The next unit on communication and civic education
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summarizes the need for integration of communication and its offshoot, civic education, into all facets of governance institutions. The presentation of civic education covers the fundamental issue of integrated civic education as a key factor in building a symbiotic culture of accountable government and responsive citizens.
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10
10.1
PUBLIC COMMUNICATION AND CIVIC EDUCATION IN DEVOLVED GOVERNANCE

COMMUNICATION AND DEVOLVED GOVERNANCE
The centrality of communication to the promotion of good governance and citizens participation is now an acceptable principle internationally. The role of communication is more demonstrated in countries that observe the rule of law. In such countries the principles of participation and respect of the basic rights of citizen participation are regarded as key components of a democratic society. In an environment of citizen participation in governance, genuine democracy is understood as requiring more than the election of representatives to various assemblies such as parliament, senate or local counties. Thus, over and above party politics, democracy requires that people can make their wishes known in public and require participation in debate about the type of society and particular process they aspire to125. It may be argued that the core of a democratic society is the presence of public debate about the distribution and execution of power; to this extent therefore choices made by the power holders are by way of public policy design scrutinized and contested through public debates. Thus the absence of such provisions in different societies seriously hinders democratic governance126. The situation obtaining in Africa raises fundamental legal and policy questions on what needs to be done in the communication and information sector so as to address further concerns with regard to giving citizens greater access to formal levels of expression, freedom and control of public information processes. The answer lies in making public communication an integral part of democratic governance. This is critical. People need to have access to the knowledge they require to have the education to deal with that knowledge and be able to discuss issues in public among themselves for purposes of genuine participation and exerting influence on issues that are of their interest127.
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It is therefore imperative from the start that both County Visit Submissions on Communication and the national and the Civic Education - 1 county governments must embrace fully the central County Government Establishment of a county calendar of events roles of the SMS of county news to public, open county days communication and Involve the public through the various fora in prioritizing the development agenda information in their Through forums, neighbourhood associations, broader meanings. The Public Barazas to inform the County on key role of public development areas Outreach frameworks, periodic budgets reviews and communication and newsletters information need to be Communication and information sharing with feedback seen and understood as both ways. Introduction of customer care desks in all county overarching to all offices governmental activities Creation of interaction mechanisms from grassroots to and interventions. In other up in the counties Involving the public in monitoring and evaluation of words, public county projects communication and Stakeholders forums on a quarterly basis in the provisions of information county inform the public and then ask questions Grass roots committees at village level to relay to citizens must be information forth and back integrated into national Development of websites, use fiber optic cable to and counties democratic enhance ICT use in county governance Participation: and development agenda. Citizens participation be embedded in the legislation This is critical in creating An annual conference for county residents Division representatives to disseminate information to the interface between the the population various existing Focus Group Discussions (FDGs). communication structures Involve public in county strategic planning Regular consultations with children to identify needy and channels such as the children, drug and sexual abuse to include children in media and their roles in children issue prioritization enhancing citizens participation, feedback and the medias role in awareness creation, analysis, interpretation and continuous rationalization of development issues nationally and at the county levels.
10.1.1 Communication, Information, Governance and Development

Communication and information are variables that are constantly needed by people in a democratic society at all levels for purposes of governance and development. In the context of democratic governance for example, the media as a communication tool in a democratic society has an extremely broad institutional framework for
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exercising the force of public opinion as a way of imposing checks and balances on the government as a democratic requirement128. Similarly, citizens need a number of key factors which are both linked to the intrinsic genuine democracy and citizens participation, such as reason, responsibility, mutual respect, access to information, freedom of expression and freedom of conscience to be contextually and correctly mediated by proper and accurate communication mechanism.
COUNTY VISIT SUBMISSIONS ON COMMUNICATION - 2 Accountability: Open forum be established for accountability Quarterly reports Hold open budget days where the local population participates. Safeguards to prevent misuse of funds Have meetings after 4 months go round explaining to the local people whats going on. The public should create oversight institutions outside the ambit of the county government. Create ombudsman office in County Field days for the county staff to meet their people for feed back Have periodic questionnaires for the public to evaluate the performance of the county government. Give copies of budget expenditure to the public for easy monitoring and evaluation Opinion polls to gauge performance of the leaders Continuous liaison between the county, constituencies, locations and sub-locations and also at village level County care centres/Public complaints office Automation of county systems and other services Establish and equip ICT resource centers Public forum be held at beginning and end of year Participatory budget process There should be civic education to sensitive public on the importance of their involvement in public affairs. Maybe start at the micro-level by encouraging participation in school and church committees Communication and Information that all counties establish TV and FM Community radio stations establishment of newspapers or county magazinesthat will enhance information flow and feedback to the people creation of ICT centers and ICT training centers in all wards creation of county Facebook and twitter accounts as well as county websites use of media for advocacy such as: promotion of social issues such as health and culture feedback between citizens and governmentto enhance citizen participation creation of development information networks to promote grassroots interaction up to village levels use of focus groups to discuss development issues and complex taboo issues creation of media and cultural centers in the counties to promote the use of local theatre and drama for social integration and peace building and reconciliation to use the local media and community to provide development information to the counties and also to explain development issues at the county level use the media at the counties for posting county events that seek citizen participation use mainstream media and community media for overall promotion of development and awareness creation at the counties
This is viewed as critical in ensuring that citizens are therefore able to use the accurate, relevant, adequate and appropriate information available to them to make correct and rational decisions at individual, collectively and at governmental levels.
General communication and provision of information is recognized as critical ingredient to the practice of democracy. For example, Ochilo et al have argued that the media in Kenya has continued to serve the ends of democracy through the facilitation of popular participation of the citizens on public affairs and in its continuous struggle in opening up political space and political transition together with other non-state actors within the civil society129.
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It is therefore our considered view that the county governments can benefit in using the wider reach effectiveness of both the print and electronic media in sharing extensively on various aspects of their governments. Such exchanges are critical in enhancing peoples confidence and motivation to participate in various demands of governance. This is supported by the existing empirical evidence indicating that peoples participation in governance and decision making process can greatly be improved through institutionalized and professionally structured communication 130. In this paper we take the position that all forms of development are intrinsically linked to democratic governance and the existing political elasticity that allows full participation of citizens in their government. In this case the national government and the county governments, respectively. The promotion of various forms of development activities and goals, in one way or another will require the inclusion and full integration of communication and information. This is the context in which Hedebro has argued that the functions of the media is critical in the mobilization of human resources, moulding, replacing old norms and at the same time having the capacity to enhance human productivity as well as increasing human labour efficiency. By way of professionally designed methods, communications have the capacity to support various forms of development goals and improvements131. Of relevance is the fact that the proposed counties greater population are in the rural areas. Many of them continue to live far apart due to their geographical locations and infrastructural arrangements; that continue to separate them. In this context, it is thus recommended that the counties embrace the role of the media as agents for transmitting information and news needed to balance the knowledge gap and stimulate the levels of interest and participation in specific counties and others nationally132. Similarly, scholars like Shramm133, Uche134, Lerner and others have argued that the media have the ability to keep development agenda alive, internationally, nationally and at the county levels given that a high degree of correlation does exist between modernization goals and availability of media outlets. This is the context in which the provisions of the current constitution should be viewed. Article 33 (1) to (3) makes provision for the freedom of expression; Article 34(1) to (4) covers various aspects dealing with constitutional issues on the freedom of the media; Article 35 (1) to (3) deals with access to information and Article 36 (1) to (3) makes provision for issues relating to freedom of association. Article 33 (1) provides that every person has the right to freedom of expression which includes:
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freedom to seek, receive or impart information or ideas;
freedom of artistic creativity; and,

academic freedom and freedom of scientific research135.
Notwithstanding the above provisions, Article 33 (2) states that the right to freedom of expression does not extend to the following: propaganda for war incitement to violence hate speech; or advocacy of hatred that may constitute ethnic incitement vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in Article 27 (4). And that in the exercise of the rights to freedom of expression every person shall respect the rights and reputation of others.
Matters relating to the centrality of information in the promotion of governance and the principle of citizens participation has also been given further attention in the new constitution under article 34 with regards to the key question of freedom of the media. Article 34 (1) states that freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33(2).This Article provides that the state shall not: exercise control over or interfere with any person engaged in broadcasting the production or circulation of any publication or the dissemination of information by any medium, or penalize any person for any opinion or view or content of any broadcast, publication or dissemination broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures are necessary to regulate the airwaves and other forms of signal distribution, are independent of control by government political interests or commercial interest. And that all state owned medial shall: be free to determine independently the editorial contents of their broadcast or other communications, be impartial afford fair opportunity for the presentation of views and dissenting opinions
Furthermore, part (5) of this Article provides that parliament shall enact legislation that provides for the establishment of a body, which shall: be independent of control by government, political interests or commercial interests, reflect the interests of all sections of the society,
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set media standards and regulate and monitor compliance with those standards.
The Constitution has also made provisions on the core issues relating to the question of access to information. Under Article 35(1) to (3) the key provisions are: that every citizen has the right of access to:information held by state, information held by another person and required for the exercise or protection of any right or fundamental freedom and that every person has the right to correction or deletion of misleading information that affects the person
the state shall publish and publicize any important information affecting the nation136.
Using the above broad constitutional provisions as entry points, we then asked the public the following questions: What information and communication methods are required for the public to effectively participate in devolved governance? How should members of the public receive feedback from the county governments?
How can ICT be utilized to promote good governance and accountability in counties?137
In summary, most members of the public are fairly clear on the expected role of communication, information, the media and IT in the promotion of governance in the various counties. The role of communication is also understood as being critical in the analysis, interpretation, rationalisation and demystification of various development agenda that are key at both national level and within the counties. In this regard therefore it is our view that all the counties need to embrace the role of communication and information in the promotion of development. This therefore is the context in which the public suggested and recommended fully the need for the creation of the following information structures, channels and outlets in all the counties:
10.1.2 The Media and the Implications of the New Constitution

The critical discourse in Kenya before the promulgation of the new Constitution has been broadly dominated by criticism relating to the lack or absence of constitutional guarantees and legal protection of the press. Specific focus was on freedom of expression, access to information, freedom of the media and the statutory limitations. Some of the key ones include the Defamation Act, Preservation of Public Security Act, the Chiefs Authority Act, the Official Secrets Act, Treason and Sedition as provided
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under the Penal Code Section 57 (I), the Prohibited Publications as provided as provided for under the Penal Code Section 52 (I) and (2), Films and Stage Play Act, Communications Act and the Kenya Broadcasting Corporation Act138. It is therefore important that we note from the start that the current Constitution has made significant attempt in making fundamental constitutional provisions with regards to the freedom of expression in Article 33 (1) to (3), freedom of the media in Article 34 (1) to (3), access to information in Article 35 (1) to (3) and Article 36 (1) to (3) which has made provision for freedom of association139. Furthermore, it is significant that the current Constitution under the Bill of Rights in Chapter 4 Article 20 (1) makes provision that the Bill of Rights applies to all law and binds all state organs and all persons. Significantly, Section (2) provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.12 Enjoyment of freedom is in this context given by the Constitution as fundamental right to every person. These provisions when taken together with the provisions in Article 33 to Article 36 (1) to (3) provides critical and significant constitutional guarantees on the press freedom, access to information and freedom of expression. It is therefore envisaged that the counties and national Government by virtue of these provisions undertake as a matter of legal requirements and policies to enact the necessary legislation and amendments of the various existing Acts so far identified to bring them in line with the current constitutional requirements. Besides, given the supremacy of the Constitution, the private media outlets and those owned by various interest groups must make all the necessary legal adjustments as well. Such changes will thus create greater communication flexibility, space and enhanced role of the media in aiding participatory democracy. However, continuous attempts must be made in tackling factors that continue to limit the functional roles of the media both at the national and county levels. Such factors include: the political interference with the work of the media, concentration of media ownership in the hands of few people, legal limitations, human expertise, access to news print due to the fact that the bulk of the material are imported, economic limitations, ideological influence on editorial contents, the cost of sourcing contemporary media related technology and training needs for the future. If some of these issues are carefully addressed, then it is a given that the role of communication and the provisions of information will go a long way in promoting the broad issue s relating to the principles of human dignity, freedom, justice, peace and citizens participation in governance at the both the national and county levels respectively.
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10.1.3 Key Issues and Recommendations

Many scholars, practitioners and users of information, internationally, are now unanimous on the critical roles played by communication, information and the various media channels in the promotion of good governance and the development. These functions may for example relate to;
1. Principle roles of communication in governance and participation in development

Communication and information serve the democratic requirement by way of providing information for use by citizens in decision making process Media outlets provide national forums for ideas generation and democratic debates on various key issues of governance. Media outlets also provide space for citizens greater access to formal levels of expression, freedom and control of public information processes Media institutions equally provide space in which the distribution, choices and execution of power are by way of public policy design scrutinized and contested through public debates. The media enhances increased levels of access to information and the knowledge that people require in a democracy The media institutions are equally considered as critical national actors in setting national agenda on various core issues of governance The media as well have the capacity of acting as checking balance on behalf of the silent majority by keeping governments on their toes by insisting on differentiating the difference between governmental functions and actual levels of government delivery. Promotion of national values, the Bill of Rights and the Rule of Law Promotion of the constitution by way of analysis and interpretations. The media is needed in contextually and correctly mediating on factors which are linked to genuine democracy and citizens participation such as reason/responsibility, mutual respect, access to political power, freedom of expression and freedom of conscience. Communication serves the ends of democracy through the facilitation of popular participation of citizens in public affairs for purposes of opening up political space and transitions with other none state actors. Provide mechanisms for information exchange among citizens and feedback between citizens and governments Used in motivation of citizens to participate in issues of governance and encouraging them to stand up for their rights Fight for the retention of political elasticity and democratic gains.
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2. The principle relating to the Role of Communication and information in the promotion of development
Provision of communication and information solidifies the interface between democracy and development by arguing for both values and advantages The media has broad and flexible theoretical framework that enable them to promote various development activities, objectives and goals. Plays critical functions of mobilizing human resources, molding, replacing old norms and at the same time has the capacity to enhance human productivity and ability to increase labor efficiency. The media can be used as agents for the transmission of news needed to balance the knowledge gap relating to various development issues and concerns The media has the capacity to demystify development issues by way of creating clarity that enhances changes of replication of the development issues being implemented The media have the capacity to keep the development agenda alive internationally, nationally and at the county levels
3. Principles relating to the constitutional provision on Freedom of Expression

According to Article 33(1) to (3) on the freedom of expression, fundamentally the constitution in this section provides that every person has the right to freedom of expression which includes freedom to seek, receive or impart information or ideas. Also included here are freedom of artistic creativity and academic freedom of scientific research. Significantly therefore, the above constitutional provisions give extensive levels of freedom to the individual in seeking information and imparting it as well. The academic freedom and freedom of scientific research has also been provided for. It is however, significant that we note the import of the limitations under Article 33(2) where the right provided under Article 33(1) to 3 above with regards to the freedom of expression as not extending to: Propaganda for war Incitement to violence Hate speech or Advocacy of hatred that may constitute ethnic incitement, vilification of others or incitement to cause harm
Whereas, Article 27(4) provides that in the exercise of the rights to freedom of expression every person shall respect the right of and reputation of others.
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4.
Principles relating to the freedom of the media
Article 34(1) states in part that freedom and independence of electronic, print and all the other types of the media is granted and that the state shall not exercise control over or interfere with any person engaged in broadcasting the production of circulation of any publication or dissemination on information by any media or penalize any person for any opinion or view or content of any broadcast, publication or dissemination One of the imports of the above provisions is that the constitution here now provides guarantees to the freedom of the press to the extent therefore that any attempts to challenge the freedom of the press shall therefore be null and void given the supremacy of the constitution. Except only where the constitution has posed limitations under specific sections.
5. Principles relating to the access to information.

Article 35(1) states that every citizen has the right of access to information held by the state and Information held by the state; and required for the exercise of protection of any right of fundamental freedom Every person has the right to the correction or deletion of untrue or misleading information that affects the person. The state shall publish and publicize any important information affecting the nation.
6. Principles relating to freedom of association.

This is provided for under Article 36(1) to 3, where the right of association which includes the right to form join or participate in the activities and other rights are recognized. In seeking the publics views on the questions relating to the above specific constitutional provisions and other related issues in the area of communication and information, we asked the following questions. What information and communication methods are required for the public to effectively participate in devolved governance? How should members of the public receive feedback from the county governments How can ICT be utilized to promote good governance and accountability in counties Most members of the public are fairly clear on what roles communication and information should play. The media and IT should play a role in the promotion of governance in various counties. The role of communication/media is
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understood as critical in the analysis, interpretations, rationalization and demystification of various development agenda that might be key to both county and the national government.
10.1.4 Recommendations
The following are some of the key recommendations, possible policy options and legal matters relevant to the communication, information and governance: That public communication, information and the media should fully be made an integral part of democratic governance and be made to play at the same time an overarching role in the various aspects of government at the national and county levels given their central role in government. There should be in place broad public policies and extensive legal provisions based on the media ownership and covering as well issues that may relate to the questions of cross media ownership and self regulations That there is need to develop public policy framework for the counties with regards to the needed guidance on the relevant types of media to be created at the county levels and why? And that critical attention is given to the traditional media as well. Public and legal policy relating to the editorial policies regarding content be put in place. Public policy on the creation and development of the various relevant community media channels and language of choice be instituted. A county plan for building information and communication infrastructure in the counties Adopt policies that shall eliminate or reduce import tariffs, taxes and other legal barriers to the use of ICTs at county levels Establish an enabling environment to foster the flow of development information and communication at all levels of the counties Implement policies that seek to computerize and promote the use of ICTs in Government services at all county levels Conduct as need may arise, communication and information needs analysis to determine requirements and set up information and communication services in key sectors in the various counties as per priorities Identify and develop IT application areas with the highest impact on socioeconomic development at the county levels take steps to facilitate the establishment of locally based low cost and widely accessible Internet services and indigenous African information content in the counties
Prepare and adopt plans in the counties that seek to develop human resources in ICT, and adopt at the various counties policies and strategies that seek to
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increase access to communication and information facilities with priorities given to serving rural parts of counties, grassroots and the marginalized groups such as women, youth, aged, minorities, and children140.
We recommend that we use the constitutional provision under Article 33(1) to (5), 34 (1) to 4, Article 35(1) to 3 and Article 36(1) to 3 and suggest a way of operationalising these provisions to inform the various relevant laws that might have been envisaged by these constitutional provisions. It is recommended that through legal review be done to the past acts and statutes for purposes of amending them as a way of making them account the provisions of the current constitution.
These Acts are: Defamation Act Preservation of Public Security Act Chiefs Authority Act Official Secrets Act Treason and Sedition Acts provided for under the penal code section 57 (1) The Prohibited Publications Act as provided for under section52(1) and 2 Films and Stage Plays Act Communications Commission Act
Kenya Broadcasting Corporation Act Freedom of Information Bill An overarching organic law be put in place at the national level linked to the constitutional provisions and the Bill of Rights specifically on: (a) Freedom of Expression as detailed under Art.33 (1) to (3) (b) Freedom of the Media as detailed under Art. 34 (1) to (5) (c) Access to Information as detailed under Art.35 (1) to (3) (d) Freedom of Association as detailed under Art. 36 (1) to (3) There is need to review the existing Acts of Parliament in the area of communication and information to ensure that they take into account the current constitutional provisions in Art 33(1) to (3), Art 34 (1) to (5), Art 35 (1) to (3) and Art. 36 (1) to (3)
Policy Issues/Options: Public communication and information be integrated in various aspects of governance as an overarching principle There should be policy that deals with the question of media ownership and communication outlets at the county outlet Policy on deregulation and regulation of the media mechanism Policy on editorial policy Page | 210
Policy on IT- Information Technology at the counties Policy on Community Media i.e community radio, community theatre groups
10.1.5 Outstanding Issues

It is internationally recognized now that the role of communication and information is a critical overarching activity in the whole question of governance in a number of respects. For example, communication is key as a tool that serves the ends of democracy. This is done by way of communication, and the media providing adequate, relevant, appropriate and accurate information that enhances citizens depth and understanding of governance issues while at the same time improving their collective decision making processes on issues of governance. Furthermore communication is critical as a tool that seeks to enforce public opinion on governance as well as creating a mechanism that improves feedback between the government and citizens. It is therefore imperative that the national government and the county governments pay critical attention to the question of communication and information both at national level and at the county levels. One way of doing this is to ensure that at policy level, public communication is integrated into the whole question of governance. Of significance however is the requirement that all county governments ensure that these considerations are given attention both at policy level and by way of legislation. However notwithstanding these critical issues we note that a number of issues were not given due consideration and direction on how they should inform the operationalization and implementation of public communication at the county level. These issues have been flagged as policy options under the sub-section dealing with recommendations. Refer to section on policy options in the text above. Similar attention should be given on issues that relate to legislation also discussed above. Refer to section on legislation in the text above.
10.2
CIVIC EDUCATION ON DEVOLVED GOVERNMENT
Following the promulgation of the Constitution of Kenya, the government has taken a policy decision to fund and facilitate civic education on the Constitution. This decision was made at the Cabinet meeting of 28th October 2010. In this connection the Ministry of Justice, National Cohesion and Constitutional Affairs is coordinating the design and development of civic education on the Constitution. A multi-sectoral national committee has been established for this purpose. The committee brings together government ministries, departments and agencies (MDAs), civil society, faith based organizations, and the private sector. Additionally, the government has an inter-ministerial committee bringing together key MDAs, while the non-state actors also have their own committee.
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Civic education on devolved government will be part of the national civic education effort, and will be facilitated by the Office of the Deputy Prime Minister and Ministry of Local Government.
10.2.1 Strategic Communication

Strategic Communication is the manner of communicating a process, or information/data that satisfies a long term strategic goal. With it is the ability to facilitate advanced planning so as to communicate over long periods of time and space. From a technological perspective, it is the ability to shorten communication over long distances usually using international telecommunications or dedicated global network assets. From a social perspective, strategic communication is the developing and collation of information, and logistical planning for dissemination of deciphered social messages. In modern times, strategic communication of a social nature uses both social and technological networks to coordinate actions and activities of communication processes. Hence strategic Communication within the context of the transitional road map in implementing devolution refers to policy-making and guidance for consistent information activities by the government to ensure that the public is appraised on the meaning, implications and working of devolved system of government within the meaning of the Constitution and legislative frameworks.
10.2.2 Civic Education on Devolved Government

The Task force on Devolved Government was set up in October 2010 to among other TORs . make proposals for effective implementation of devolution structures consistent with the provisions of the Constitution. This section on civic education on devolution finds expression in the Taskforce TORs in as far as it relates to recommending policy frameworks for implementation of devolved government as provided for in the Constitution This is further augmented by the Constitution provisions at Article 33 (1) to (3) that makes provisions for the freedom of expression; Article 33(1) that provides that every person has the right to freedom of expression which includes freedom to seek, receive or impart information or ideas; and Article 35 (1) to (3) which deals with access to information which emphasizes that every citizen has the right; of access to information held by state to information held by another person and required for the exercise or protection of any right or fundamental freedom; and to correction or deletion of/or misleading information that affects the person
And most fundamentally the state shall publish and publicize any important information affecting the nation.
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The Task Force has therefore, a mandate to ensure that the resultant policy and legislative framework to anchor devolution is buttressed with civic education in built in the transitional roadmap to enable the people of Kenya understand, embrace, and support, promote, and protect the gains of devolution. 10.2.2.1 What is civic education?
In a democracy, civic education is necessary to ensure that citizens understand their political system, their rights, the issues they would be expected to participate in and help decide COUNTY VISIT SUBMISSIONS ON CIVIC EDUCATION upon, and how and where such There should be national civic education decisions would be made. Civic education is political education or, the cultivation of the virtues, knowledge, and skills necessary for political participation.
on the constitution as a whole and with particular emphasis on the concept of devolution and devolved governments. Civic education should be integrated into various national county reform issues An annual conference for county governance Need for divisional representation as centers of dissemination of information at the county Awareness on marginalization issues Need for the dissemination of broadcast programs using community media and establishment of County magazines/monthly newsletters/Information bulletins at the counties.
Civic education can be likened to the famous rendition by Tocqueville's that: Town meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it. Therefore, understanding civic education, especially democratic education, integrates both formal settings (schools) and informal settings (families, communities, libraries, houses of worship, workplaces, civic organizations, unions, sports teams, campaigns and elections, mass media). Civic educators seek to impart skills, knowledge, and participatory virtues; they also seek to engrain in society a felt connection to, if not an identity with, that country, County or society. This is no small or minor undertaking. 10.2.2.2 What is the context of civic education in Kenya?
The Task Force appreciates that civic education has and continue to be carried out in Kenya by various actors, especially Civil Society, faith based organisations, quasigovernmental agencies and the media. In terms of areas of focus, especially in recent times, civic education content has tended to be sectoral and thematic. There are CSOs specializing on specific aspects of rights such as violence against women, property
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ownership and inheritance, political participation by youth and women, rights of persons with disabilities and rights of minorities and marginalised groups. Still others specialize on governance issues such as corruption, impunity and specific constitutional provisions, including devolution. The design, content and methodology applied in delivery of civic education have metamorphosed from one historical epoch to another, always informed by prevailing social, economic, political and cultural imperatives. In the period leading to the National Referendum on the then Proposed Constitution of Kenya on 4th August 2010 and soon after its promulgation, civil society reengineered its interventions in the realm of civic education. The area of focus is now on implementation, with particular attention on ensuring that the process is not held back by AGENDA FOUR (4) captive interests of the political elite, but that it The long term issues and remains faithful to the letter and spirit of the solutions. It is what is commonly Constitution itself. These interventions are known to a majority of Kenyans as AGENDA FOUR (4). The successful currently being undertaken by loose umbrella conclusion of the constitution making formations and structured platforms, among process is the cornerstone of this others URAIA, NCSC, CRECO, DCIC, CEDMAC, item. It is the more overarching of the annotated agenda of the KNDR G-10, CMD, Women Leadership Caucus, as it incorporates undertaking COVAW, Pillars of Transformation, KPTJ, constitutional, legal and institutional SODNET, DEGONSA, SUPKEM, Inter-Religious reforms, tackling poverty and Council, Constituted Indigenous Churches, the inequity as well as combating regional development imbalances Hindu Council, NCCK, CJPC and COTU. and unemployment particularly Individual CSOs, including CBOs are also among the youth, consolidating engaged in Civic Education in their mandated national cohesion and unity, undertaking land reform and niche and thematic areas of core competences. Kenya adopted a new constitutional dispensation accountability and impunity. following the debilitating post-election violence of 2007 2008, in which slightly over 1,300 Kenyans were killed, an estimated 600,000 rendered internally displaced persons (IDPs) and the economy suffered a body blow estimated at 60 billion Kenya shillings. It has now been accepted that the disputed 2007 presidential election, was merely a trigger of the violence. The main causal factors are the long outstanding underlying historical grievances. This realization led to the inclusion of AGENDA 4141: The long term issues and solutions in the Serena Peace Talks by the Kenya National Dialogue and Reconciliation process. The design of any civic education in this context will therefore need to take cognizance of the circumstances in which Kenya now finds itself.
addressing transparency,
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In view of the foregoing, Kenya may be said to be in post-conflict phase given the effects of the post-election violence and the affirmation of the subsequent National Accord on the basis of undertaking fundamental reforms. Given this perspective, civic education is especially important for the transformation processes that will take five years Since Kenya is a country in transition, civic education provides an unparalleled opportunity to educate citizens on the quality of change envisioned in the new Constitution, and the importance of people engagement in all aspects of the governance process, and what the people contribution can make to building democracy through devolution. Civic education is even more critical in post-Constitution making and Constitution implementation phase Kenya due to; a conflictual referendum where political positions for and against were adopted; a large mass of the population remain ignorant of the Constitutional provisions; lack of experience with a new system ushering in major institutional, structural and political changes; a volatile political situation and where changes will have an unprecedented impact on the countries future; and the need to sustain democracy, because of its combination of numerous and more varied points of shared common interest and its requirement of continuous readjustment through meeting the new situations produced by varied intercourse. What is the purpose of civic education in Kenya?
10.2.2.3
Civic education does help prepare citizens for public participation. Civic education is critical in enhancing Kenyans participation in the success of the devolved system particularly in post-implementation legislative phase. Civic education on devolution should therefore be accessible to all the diversity of Kenyan people. The information conveyed should be sensitive and collaborating the Constitution and related legislation; and designed on the basis of relevance to building a united Kenya. Civic education on devolution will help enhance Kenyans passionate participation in the economic and the political socialization of the devolved system. Of particular importance is the need to create a culture in which Kenyans are encouraged to participate in self-actualization and determination 10.2.2.4 What are the objectives of civic education on devolution?
The main aim of civic education on devolution is to convey knowledge of Kenyas transformed political system and context. Civic education will include information on Page | 215
the devolved system of government; the nature, powers and operations of the National and County institutional offices (distribution of functions); intergovernmental and intra-County relationships; allocation and distribution of resources; and structures and institutions of devolved government, among others, including transitional issues related to elections, the principal economic, social and political issues facing County administration and the form, structures, procedures and manner of public participation. To ensure participation in representative government or democracy, civic education (mental education) is part of the political education of a free people, taking them out of the narrow circle of personal and family selfishness, and accustoming them to the comprehension of joint interests, the management of joint concernshabituating them to act from public or semi-public motives, and guide their conduct by aims which unite instead of isolating them from one another. There is also the inspirational notion that through devolution, Kenyans will act through justly administered institutions that will stabilize and perpetuate the good society. The catalyst to this outcome is civic education on devolution. 10.2.2.5 How will civic education be applied for devolution?
Civic education on devolution will be used to describe and explain the Constitution provisions on devolution; the legal, structural governance and political changes; and for the dissemination of information, materials and programmes designed to inform the people about the changes, their rights and responsibilities; and the specifics and mechanics of County governance and relationships with the National government. This will inherently involve providing information on who is responsible for what functions. Additionally, civic education may incorporate voter education; who will be candidates; where and how to register; political parties lists; how electors can check the voter lists to ensure they have been duly included; what type of elections are being held; where, when and how to vote; and how to file complaints. 10.2.2.6 What are the factors in civic education on devolution?
Factors
make information available and accessible to all seek to achieve universal coverage of the Country high rates of illiteracy the use of different languages in a country, even if there is only one official language. Specially target minority groups, internally displaced persons and other marginalized segments of society e.g. launch special educational campaigns aimed at highlighting the fact that they have the right to be accommodated special messages to youth
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publicity for the process
Approaches and Methodology

The informal settings Educational institutions Live, interactive coverage on national TV stations Online blogs Online interactive questionnaires Civic education on devolution activities
10.2.2.7
The government should be primarily responsible for civic education. Given that the reform agenda was born out of the National Accord and is highly political, it is crucial that government sponsor civic education, but ensure it remains neutral and accurate, and that it is not seen to favour any party or social interest. Civil society should dovetail into a civic education curriculum designed by government with the valuable contributions of other civic groups. Civil society will be particularly useful and effective in developing sensitive messages that disseminate a positive image of devolution. mobilizing public opinion in favour of maintaining the tempo of reconstruction under devolution integrating the media to play a key role in breaking down negative stereotypes against devolution and encouraging Kenyans full participation. mobilizing the international community to make constructive contributions to civic education, drawing on its substantial experience in promoting democratic participation worldwide Civic education on devolution Curriculum
10.2.2.8
Because Kenya is emerging from conflict, civic education on devolution curriculum should; motivate all Kenyans to positively support and promote the ideas of devolution. begin with an explanation of the nature and importance of the National Accord of February 2008 and the attendant mechanisms such as the Krigler and Waki Reports; the institutional reform process setting in place the Interim Independent Electoral Commission (IIEC); Committee of Experts (CoE); the Interim Independent Boundaries Commission (IIBC); Truth Justice and Reconciliation Commission (TJRC); and National Cohesion and Integration Commission;
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the products of these Commissions and how they have contributed to the reform process and communicate their advance of democratic OUTSTANDING ISSUES ON CIVIC reform in Kenya. EDUCATION The Constitution making 1. Comparative models for Civic process culminating in the Education new Constitution focusing 2. Integration of Civic Education on citizen desire for a devolution in national Civic Education democratic and equitable on the Constitution 3. Legislation on Civic Education society, human rights of all required citizens (especially their 4. Design of Civic Education Curriculum civil and political rights with regard to governance); desire for full participation in the political process. highlight the importance of citizen knowledge and expertise in the areas of reconstruction and national reconciliation, as well as the importance of citizen equal involvement in the political process. Policy Recommendations
10.2.2.9
Government through the Office of the Deputy Prime Minister and Ministry of Local Government should: Should facilitate the Task Force to start Civic Education immediately but incrementally as part of the validation of field submissions and the report to the public. A national comprehensive curriculum on Civic Education on devolution should be consultatively developed through partnership of the government and nonstate actors. That policy be made to ensure that the material development for civic education is accurate, relevant and politically neutral. Review all materials to ensure they are politically neutral and gender-sensitive; Provide sufficient resources to ensure such programmes reach all citizens; Initiate special civic education programmes for target groups, including women, minorities, displaced persons, youth, and people with disabilities, and others who may be less likely to access mainstream delivery; and Develop gender-sensitization programmes for personnel responsible for civic and voter education.
Civil society should:
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Develop civic education devolution messages that highlight the capacities of devolution institutions encourage and promote citizens full participation in the devolution implementation process; Help ensure that the countrys leadership and citizens understand that deviation from set principles and objects of devolution are not acceptable and constitute fraudulent impunity; Ensure that all people have access to civic education on devolution; Design training programmes for special target groups such as women, minorities, displaced persons, youth and people with disabilities. Monitor the civic education programmes. There is need to create linkages between civic education and training for the public servants and politicians
International partners should: Support civic education on devolution programmes, through technical sourcing; Provide funding for civic education programmes; Provide relevant lessons learnt and best practices elsewhere for possible inclusion in the proposed model.
Legislative Proposals: Proposed that the national law entrenching the permanent creation of National Civic Education Body be put in place There is need to review the following acts to take into account the proposed curriculum suggested for national civic education; theEducation Act the NGO Act, the Communication Commission Act and any Act that may be relevant to the principle of Civic Education be reviewed
10.3
CONCLUDING REMARKS
This chapter has covered public participation in the perspective of governance issues related to transparency, accountability, decision-making and equity. The Chapter integrates issues of inclusivity for the marginalized and minority in the context of public participation in a democracy. The unit on communication and civic education summarizes the need for integration of communication and its offshoot, civic education, into all facets of governance processes and institutions. The presentation of civic education covers the fundamental issue of integrated civic education as a key factor in building a symbiotic culture of accountable government and responsive
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citizens. In all the units of the chapter, there are unveiled proposals for legal, policy and institutional interventions.
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11
11.1
BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE

INTRODUCTION
11.1.1 Public Service

The governance of the public service is a shared responsibility between various institutions. In a number of countries, these institutions play complementary but distinct roles in ensuring the establishment, regulation and management of the public service within certain general principles. The principles of staff establishment and regulation of the service revolve around the issues of appointment, disciplinary control and transfer of public officers while those of management and administration basically focus on formulation and implementation of policies intended to facilitate delivery of public services. These include terms and conditions of service of employees. In the Commonwealth and a number of other countries, Service Commissions or equivalent institutions are constitutionally responsible for staffing of the public service while formulation and implementation of policies on terms and conditions of service is the responsibility of the relevant ministry or department in the Executive. Whether or not the shared responsibility is carried out at national government or devolved levels of government depends on the constitutional provisions in respective countries. However, the following general principles apply irrespective of levels of government: Recruitment and placement based on the needs of the service Objective, fair and competitive recruitment criteria Performance management and evaluation Fair and consistent disciplinary processes Remuneration, pensions and other terminal benefits.
These principles will form the primary basis for formulation of a human resource management and development framework in county governments.Various provisions in the Constitution especially on Public Service, Public Finance and Devolved Government will have profound implications on this framework. The public service both at the national and county levels is expected to contribute to the achievement of the economic, social and political aspirations as articulated in various government policies. The ability of the Service to effectively play this role will significantly depend on the form and nature of the restructuring that it will have to undergo. The current institutional, governance and human resource structures which were developed and evolved under a different constitutional and legal order need to be reformed to be in tandem with the provisions of the constitution. Towards this end
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the existing public service human resource management policy framework, statutes and practices and the attendant challenges that constrain the public service in effectively delivering on its mandate will need to be addressed.
11.1.2 Human Resource Management Issues in the Public Service

Until the advent of the later phases of public service reforms in the later years of the 20th century, the existing human resource management approach was predominantly process-based and focussed more on a centralised environment with limited adaptation to accommodate more dynamic issues in a devolved environment. In addition, historic poor governance within the public service generally contributed to deficiency in service delivery, a culture of compartmentalization and individualism at the expense of teamwork. Performance was for a long time compromised by excessive discretion in government, lack of transparent control systems, excessive bureaucracy and weak capacity. This led to erosion of professionalism in many areas, perceptions of widespread corruption, abuse of office, cronyism and inequities in access to services. Though successive reform efforts significantly reduced the incidence of these challenges, there was lack of profound and sustainable change in the service. These challenges have assumed more significance in view of the new constitutional provisions especially on Values and Principles of Public Service and Staffing of County Governments. 11.1.2.1 Policy Perspectives
Human resource management and development in the public service has broadly been underpinned by various national and sectoral policies. These include the overarching Kenya Vision 2030, the Visions first Medium Term Plan (2008-2012), Ministerial Strategic Plans and initiatives such as Results Based Management and Performance Contracting. In this connection, the various flagship projects on human resource development under Kenya Vision 2030 are aimed at creating a globally competitive and adaptive human resource base to meet the requirements of the Vision. Human resource management is regulated through such statutes as the Service Commissions Act, Cap. 185, Employment Act, 2007, Labour Relations Act, 2007 and the Work Injury and Benefits Act, 2007. Relevant International Labour Organisations Conventions and Declarations have likewise informed the formulation of sectoral policies such as those on Tripartism and Social Dialogue in labour relations. The management and development of human resources is the responsibility of the Ministry of State for Public Service.The Ministry provides strategic direction in the formulation, interpretation and implementation of human resource policies,
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programmes and practices designed to enhance service delivery in the public service. Article 234 of the Constitution has however given many of these functions to the Public Service Commission. 11.1.2.2 Challenges
The Public Service has over time faced numerous challenges in Human Resource Management and Development. The challenges which are expected to persist in various forms, at both levels of government, have traditionally revolved around the following complementary and inter-related issues.
a. b. c. d. e. f. g. h.
Policies, procedures and institutional arrangements Culture change and transformation of the human resource function Recruitment and placement Human resource planning Performance management and evaluation Remuneration Training and capacity building Employee welfare
The challenges associated with these issues will now have to be addressed within the context of the relevant provisions of the constitution.
11.2
COMPARATIVE ANALYSIS
A study of public service structure and management in several countries with devolved systems of government gives an indication of the scope of the roles that the different levels of governments play. This is evident not only from the constitutional and legal basis of the public service in these countries but also the policy formulation and implementation aspects especially on terms and conditions of service of public officers.
11.2.1 Germany
The federal system of government in Germany, with its three levels of government is characterised by lower levels of government that have been granted autonomy in regulating local affairs within the limits of federal and state law. With respect to staffing of local authorities, this autonomy includes organising and staffing these authorities. In this regard, the two levels of government below the federal government (state Lander and local authorities) have the responsibility of recruiting and promoting staff. Recruitment is conditional on existence of a vacancy and is done within a common legal framework of federal civil service legislation. This arrangement closely mirrors the national framework of common norms and standards envisaged in Article 235 of Kenyas constitution. On the other hand, the federal government has the power to legislate on matters regarding employment
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conditions, remuneration and pensions for all civil servants in Germany. In Kenya this function is an implied constitutional responsibility of the national government, but with the input of the Public Service Commission and the Salaries and Remuneration Commission.
11.2.2 United Kingdom

In the United Kingdom, the lack of a written constitution has not been a constraint in providing for a legal framework that addresses pertinent public service issues. The framework includes such legislation as the Sex Discrimination Act (1975), Equal Pay Acts (1975 and 1986) Race Relations Act (1976) and the Disability Discrimination Act (1996). Besides the relative autonomy of local authorities in the management of their respective public services, there is extensive decentralisation of management policy making and implementation to departments across the civil service. However the Cabinet Office still retains a close oversight and regulatory role especially in ensuring that departmental systems are consistent with overall government principles including those on terms and conditions of service.
11.2.3 South Africa

Like Germany, South Africas public service is characterised by three levels of government with an over-arching constitutional principle of co-operative governance. Notwithstanding the extra level of government in South Africa (Provincial), there are similarities with Kenyas constitution concerning the provisions on values and principles of public service as well as frameworks of national legislation including legislation on administration and management of public service at lower levels of government.
11.3
COUNTY PUBLIC SERVICE
11.3.1 Staffing of County Governments

Current mandates and functions of Ministries and Departments are determined by the President. The organisation structures and workloads associated with these mandates are critical in determining staffing of Ministries and Departments as well as the spatial distribution of staff in field offices. Suitable organization structures for the national and county governments will be fundamental in facilitating the effective discharge of the functions assigned to both levels of government by the constitution.
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The responsibility for staffing of county governments has, under Article 235 of the constitution, been assigned to county governments. Staffing in this context goes beyond the mere deployment of staff in counties, but includes appointment, confirmation in appointment and disciplinary control. The process of establishing and abolishing offices in the service of these governments should be guided by the optimum number of staff required to perform the functions assigned to county governments under the fourth schedule of the constitution. In order to determine the optimum number of staff respective county governments will need to BOX 11.1: COUNTY VISIT SUBMISSIONS ON conduct workload analysis. THE COUNTY PUBLIC SERVICE They will also need to identify functions that could Extensive consultations with members of the public in all the counties elicited varied responses on the various be performed more thematic areas of county public service. The twin issues effectively by the national of staffing of county governments and the fate of government and therefore employees of local authorities were of special concern to those who chose to give comments and suggestions. subject to transfer under the Specifically, the following recommendations were provisions of Article 187 of significant: the constitution.
towards local residents; However, in the transitional Lack or shortage of technical personnel at middle period before a county and senior levels in a county should be addressed government is in place, it is through secondment of staff from national government or other county governments; recommended that the Need to harmonise terms and conditions of service of national government staff especially those who previously worked in local authorities; develops a tentative Need for provision of equal opportunity and fair organisational structure and competition in recruitment of staff in counties; staff establishment for each National government should not transfer staff to counties especially those regarded as marginalised county, consistent with the areas as a form of disciplinary action. distribution of functions for both national and county governments at the county level. Besides providing an initial framework and basis for establishing and abolishing offices when the county government is finally constituted, the tentative organisational structure will be useful in informing the deployment of staff at both levels of government in the county. Appointment of public officers should have a bias
11.3.2 Norms and Standards

The staffing of county governments will be done within a framework of uniform norms and standards prescribed by an Act of Parliament. The relevant Act of Parliament is not among the specific legislation enumerated under the fifth schedule of the Constitution. The framework of uniform norms and standards on staffing of Page | 225
county governments could therefore either be in a legislation that is specific to staffing in county governments or within a separate legislation that addresses relevant issues. Nevertheless, the uniform norms and standards should comply with Article 10 on National Values and Principles of Governance, Article 41 on Labour Relations, Article 56 on Minorities and marginalised groups, Articles 203 on Equitable share and other financial laws, Article 230 on Salaries and Remuneration Commission and Article 232 on Public Service Values and Principles. Specifically the norms and standards should provide for the following: Criteria for determining the need to establish or abolish offices Representation of Kenyas diverse communities, gender and persons with disabilities in the public service. Meritocracy and fair competition in appointments. Qualifications of staff in the public service and applicants for appointment. Distribution of functions between government. Fiscal sustainability of the wage bill. national government and county
Harmonisation of regulations on discipline with those of the Public Service Commission. Fair labour practices.
Norms and standards in respect of appointments may include benchmarks in the form of ratios, percentages and other relevant parameters.
11.3.3 Promotion of Values and Principles in the County Public service

Under Article 232 of the constitution the values and principles of public service apply to all state organs in both levels of government. In this regard, the powers and functions of the Public Service Commission under Article 234 include the promotion of values and principles in Articles 10 and 232 throughout the public service and to evaluate and report to the President and Parliament on the extent to which the values and principles in these Articles are complied with in the public service. However, under Article 234(3) these powers and functions do not apply to an office in the service of a county government. On this basis there may not be need for the Public Service Commission to include in its report to the President and Parliament the extent to which the values and principles have been complied with by county governments. Nevertheless, in view of the critical importance of ensuring that the values and principles of public service are equally promoted in the service of county governments, the evaluation and reporting of the extent of compliance should be done by the proposed independent County Public Service Board.
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11.3.4 County Public Service Board

Under the Constitution the powers and functions of the Public Service Commission in respect of county public service are limited to hearing and determining appeals. The Commission will therefore have no role to play in the exercise of the responsibility that is assigned to county governments on staffing in accordance with Article 235. This gives rise to several questions on the process that the county governments will follow in discharging this responsibility and the structures at their disposal for this purpose. It is for instance not clear whether the county governments will have the capacity to conduct professional and objective staff recruitment and promotion. This uncertainty is informed by the perception that there may very well be strong temptation by the political leadership in the county government to pander to political interests in staff recruitment. Past experience concerning recruitment in local authorities does not help in dispelling this fear. The same could be said about disciplinary control and removal of public officers from county public service. While this challenge could in the short run be partly addressed through capacity building involving the Public Service Commission in the context of the principle of cooperative government, there is need to seek a longer term solution. In this connection county governments may wish to create a County Public Service Board that will carry out on behalf of county governments the responsibilities assigned by the constitution through article 235. Other functions of the Board may include offering advice to county governments on staffing of their respective public services; implementation of national legislation and policies on human resource management and development; promotion of labour relations in county public service and facilitation of cooperation between county governments in the performance of functions and exercise of powers as provided for under Article 189(2).
11.4
TRANSITIONING FROM THE CURRENT PUBLIC SERVICE
11.4.1 Staff Audits in Ministries/Departments, Local Authorities and State Corporations

The determination of optimal staffing levels will be on the basis of functional distribution between levels of government and workload within the various departments both in the national government and county government. An audit of staff serving in Ministries/Departments, Local Authorities and State Corporations will therefore be necessary in providing an initial assessment of the status of staffing in the entire public service. The staff audit will focus on the existing human resource capacities in terms of numbers, cadres, grades, gender, age and qualifications. In this connection, there will be need to disaggregate staff into professional and support categories. The
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information obtained will facilitate re-distribution and deployment of staff. For the purpose of ensuring integrity of the audit process, there should be an immediate embargo on recruitment of non-essential staff until the county governments are in place. Besides facilitating deployment of existing capacity, the embargo will obviate, to a large extent, the need for staff retrenchment once the counties are operational and to avoid over-staffing through unscrupulous and supply-driven recruitment during the transition period.
11.4.2 Re-organization and Deployment of Staff

Re-organisation and deployment of staff in the transition period should be informed by the following principles: Stability of the public service; Matching staffing with functions; Harmonisation of terms and conditions of service and Preservation and protection of pensions and other terminal benefits
The majority of the staff in the public service is currently deployed in districts, Local Authorities and State Corporations. Most of these fall within the lower and middle level grades and have basically been performing duties related to implementation of policies that have been developed by the government. In view of the fact that the functions assigned to county governments under the fourth schedule of the Constitution primarily concern the implementation of policies developed by national governments, it will be prudent for county governments to absorb these employees to the county public service. However in consideration of the fact that the responsibility for establishing and making appointments to offices in the service of the county governments is vested with these governments, the absorption of staff currently deployed in the counties will ultimately be at the sole discretion of county governments. However in the transition period, these staff should be on secondment from the national government. During the period of secondment they will be on the payroll of national government. Similarly, the provisions of Article 190 on support for county governments would be useful in providing a basis for the deployment of staff to the counties. There is also need to consider the relevance of clause 33 on succession of institutions, offices, assets and liabilities under the transitional and consequential transition provisions in the taking over of existing staff by county governments.
11.4.3 Local Authorities Staff

In terms of appointment and disciplinary control, there has been two categories of staff in local authorities; those appointed by the Public Service Commission (salary scale 1-9) and those appointed by the local authorities (salary scale 10-20). It is recommended that staff in local authorities irrespective of salary scales be absorbed
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in the county government public service on the basis of the relevance of their experience and skills in the performance of the functions assigned to county governments. The experience and skills may include those that are relevant to the management of cities and urban areas as contemplated under Article 184 of the constitution. This deployment should apply whether or not local authorities continue to exist as provided for under Article 18 of the sixth schedule. Those not absorbed by county governments may be offered the option of voluntary retirement or be absorbed by the national government. A voluntary retirement scheme would be implemented having regard for retention of required skills mix and the provisions of Article 41 on labour relations. The Public Service Commission should in this connection facilitate transfer and secondment of staff from national government and local authorities to county governments. The Commission should also facilitate the re-designation of staff in local authorities and those who may join the county service from state corporations to ensure a harmonious grading system at both levels of governments To avoid arbitrary redundancies of staff by county governments, the legislation envisaged under Article 235 of the constitution should provide for mobility of staff across counties to redress staff surpluses and deficits. Besides, the legislation may provide for limitation in the recruitment of additional staff until a predetermined optimal staffing level is achieved through natural attrition.
11.4.4 Harmonisation of Terms and Conditions of Service

The terms and conditions of service within the public service are varied and have been characterised by different pay regimes and other benefits between sectors. This has over time given rise to issues of equity, challenges in horizontal career growth of staff as a result of differences in skills requirements for similar jobs and portability of pensions. This is largely attributable to past practices by the government in determining terms and conditions of service for its employees and a separate process through which terms and conditions of service for employees in Local Authorities and State Corporations are determined through an independent collective bargaining process, albeit within guidelines issued by the government. Terms and conditions of service are of two broad categories; those that are essentially of a remunerative nature including salaries and allowances and those that do not have a direct bearing on immediate payroll costs. These later ones may include medical and pensions schemes, housing, staff welfare, working conditions, code of conduct and occupational health and safety. The continued differentiation in terms and conditions of service when staff from different employers are taken up by the national and county governments will be
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detrimental to effective performance management and harmonious labour relations in the public service. It will therefore be necessary to explore means by which the terms and conditions of service are gradually brought as close as possible to harmony. This should be done in a consultative process within the various tripartite arrangements, ensuring that the terms are as much as possible not varied to the disadvantage of any group of employees. On this account, it will be necessary to harmonise the pay regimes for staff deployed at both levels of government. In doing so account will be taken of any recommendations made to the national government in respect of conditions of service by the Public Service Commission in exercise of the powers granted to it under Article 234 and the advice of the Salaries and Remuneration Commission. The terms and conditions of service should progressively be harmonised keeping in view any existing collective bargaining agreements and relevant legislation.
11.4.5 Principles of Staff Recruitment and Promotion

The responsibility of appointing staff in counties as vested with county governments will be carried out not only within the context of Article 235 on staffing of county governments but also Article 232 on the values and principles of public service. It is envisaged that the legislation that will be enacted to give full effect to this Article will relate closely with the Act of Parliament referred to in Article 235. Besides legislation, there will be need to develop specific policies on appointment of staff in county governments. The policies to be developed on a co-operative basis with the national government will specifically focus on functional assignment to counties and human resource planning as the primary basis for recruitment. Human resource planning will assist county governments in formulating recruitment and succession plans; avoid incurring high and unsustainable wage bills at the expense of operations and economic-growth related expenditure; overstaffing that eventually leads to costly and disruptive downsizing programmes; poor retirement packages; lack of appropriate skills and low morale among employees. In view of the universal applicability of the values and principles of public service, which include the principles of appointments and promotions, career growth at both levels of government should be regulated through a standardised format to be formulated in consultation with the Public Service Commission.
11.4.6 Reporting Relationships

To facilitate co-operation between levels of government and optimize deployment of staff, there will be need to prepare a reporting system that enhances the coordination of all public service staff in the county especially where functions are executed under independent or concurrent jurisdiction and/or in the event of
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transfer of such functions from a government at one level to a government at another level. A structured reporting system will further help in removing ambiguity in execution of mandates in terms of distinctiveness and interdependence of governments and in promoting mutual communication, consultation and cooperation. It will also provide for reporting procedures between public officers in the national government and authorized/accounting officers in the county governments.
11.4.7 Protection of Accrued Pensions and other Benefits

The transfers, redeployment and secondment of staff in Ministries, Local Authorities and State Corporations will have profound implications on transferability and protection of pensions and other benefits. This is due to the multiplicity of pension schemes in the various sectors of the public service. Unlike the former constitution, the current constitution only provides for protection of pensions, gratuities and other benefits of holders of constitutional offices under the former constitution. There is therefore need to provide in relevant legislation for the protection of accrued pensions and benefits of transferred and seconded staff.
11.4.8 Institutional Facilities and Mechanisms for Training and Capacity Building of Staff in the County Public Service
Implementation of performance management strategies in the service has in the past been adversely affected by weaknesses in institutional and staff capacity. These weaknesses have especially been acute in field stations where capacity building has not been given sufficient priority. The transformation of the public service as a result of the constitution will require extensive capacity building especially for the political and executive leadership at both levels of government. Clause 15 of the Transitional and Consequential Provisions of the constitution provides for assistance by national government to county governments in capacity building. Though capacity building in human resources has lately improved significantly as a result of public service reforms, attention has not sufficiently been focused on aligning the capacity of staff to the strategic issues that are of critical importance to effective performance. Moreover, there has been numerous cases of disconnect between the political leadership as policy makers at various levels and policy implementers in understanding and appreciating core issues. This eventually leads to paralysis in decision making. In view of the likelihood of transferring these shortcomings to the county public service, there will be need to develop and implement training programmes that target the political and executive leadership at both levels of government. The main aim will be to promote efficient service administration and harmonize interpretation, application and enforcement/ implementation of law; assist staff to uphold and
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promote the spirit, values and objects of the law when making or implementing public policy decisions; understand rights, limitations, obligations and responsibilities of the client in service delivery.
11.4.9 Role of Government Training Institutions and Professional Associations in Capacity Building
The various Government Training and Management Development Institutes will be especially useful in developing training programmes that focus on the requirements of the transformed public service. These programmes will not only be on the development of transformative leadership and change management but also the development of technical and professional skills necessary in the realisation of the mandates of the public service. Curriculum development should in this connection involve the training institutions, national and county governments as well as professional associations. The Kenya School of Government should be identified as critical to continuous capacity building in county governments. The current training policy in the public service should continue to apply in the county service with adaptation aimed at addressing countyspecific capacity building requirements.
11.5
1. 2.
CONCLUSIONS
Drafting of legislation of a County Public Service bill to provide for staffing of county governments as provided for under Article 235. Audit of the existing human and technical capacities in the Public Service disaggregated into different cadres to clearly understand the number of employees and the skills available in the civil service, local authorities, state corporations and regional bodies; facilitate re-distribution and deployment of staff to counties. An additional objective will be to dispel fears and anxiety of staff retrenchment. Imposition of an immediate embargo on non essential employment in the entire public service to facilitate deployment of existing capacity and avoid staff retrenchment once the counties are operational; avoid overstaffing through unscrupulous and supply-driven recruitment during the transition period. Existing terms and conditions of service for both the national and county staff to remain unchanged until a framework for harmonising terms and conditions of service is in place. Develop a Capacity Building Framework that identifies human resource and institutional capacity gaps and specific interventions especially on; training programmes, optimal staffing; financial requirements, physical infrastructure (office facilities etc). This will be aimed at equipping identified county staff Page | 232
Based on the foregoing observations, there is a clear need for the following:
3.
4.
5.
6.
7.
8.
9.
10.
with skills necessary to deliver functions at the county government level and avoid overwhelming counties with responsibilities they are unable to carry out. Undertake institutional capability assessment for Kenya Institute of Administration (KIA) and all the Government Training Institutes to determine their readiness to effectively implement training and capacity building programmes for transforming the public service. Develop and implement training programmes that target the political leadership, Permanent Secretaries, Chief Executive Officers of state corporations and Heads of department on legal and policy implications of the constitution. To facilitate cooperation between the various levels of Government, prepare a reporting system that would enhance the co-ordination of all public service staff in the country. Develop guidelines on the development of organizational structures and staff establishment to be used by county governments consistent with the distribution of functions for both national and county governments at the county level. This will assist county governments in having an initial framework for the establishment and abolition of offices. Develop a phased implementation Plan based on the timelines stipulated in the constitution.
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12
12.1
COUNTY GOVERNMENT FINANCIAL RESOURCES AND THEIR MANAGEMENT

INTRODUCTION
12.1.1 Fiscal Decentralization Conceptual Framework

Governments everywhere are decentralising substantial political, administrative and financial powers to Sub-National Governments with a view to improve access, efficiency and responsiveness of service delivery, promote participation and empower citizens to demand accountability and performance. To achieve these objectives, requires the devolution not only of functions but also power to make policy and operational decision regarding revenue raising and spending priorities. It also requires appropriate and adequate operating systems and procedures and effective mechanisms for citizen participation. Most importantly it requires sufficient and reliable resources for service provision. Fiscal decentralisation refers to the financial aspects of devolution from national to sub-national government. It involves the transfer some responsibilities for expenditures and revenues to sub-national levels of government. Fiscal decentralisation covers two interrelated issues. Firstly, the division of expenditure responsibilities and revenue sources between the national and sub-national (local) levels of government and secondly, the level of power and responsibility of subnational governments over revenues and expenditure decisions. One important factor in determining the type of fiscal decentralization is the extent to which sub-national governments are given autonomy to determine the allocation of their expenditures and their ability to raise own revenue. The rationale for fiscal decentralisation lies in its potential to enhance the ability of sub-national governments to plan, prioritize, and use public resources to deliver public services and infrastructure in response to local needs. A successful fiscal decentralisation system therefore, will be one in which people have greater access to adequate and relevant services that satisfy local needs and preferences, which have been articulated through a mechanism that promotes popular participation; leverages local knowledge and resources to enhance cost effectiveness in service and sustainability of local development projects. Fiscal decentralization in its usual application involves the allocation of expenditure and revenue assignments between central government and devolved levels of government. This usually takes the form of assignment of functions and the sources of revenues for each level of government being explicitly specified in the Constitution or by legal statute. The legal framework would also define the level of autonomy for local governments to make their own spending and revenue decisions. Traditional discourse on fiscal decentralization, however rarely include areas of financial
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management which in reality are key to the success of devolution. Figure 12-1 gives a graphical representation of fiscal decentralisation and in particular as it anticipated by the CoK 2010. Figure 12.1: Fiscal Decentralisation Conceptual Framework
The treatment of fiscal decentralization in this chapter therefore goes beyond the traditional processes that underpin fiscal management. One innovative element of the framework is a proposal for a legal requirement for public participation in the planning and budget process, especially in the formulation and implementation of county budgets. This requirement is in line with the Constitution and aims to improve accountability in the use of resources and ownership of development planning at the local level.
12.1.2 Principles of Public Finance

The following principles should guide public finance management in the county governments (Article 201): a. openness, accountability and public participation in financial matters - The County Legislative Assembly and the public are provided with relevant, reliable and timely financial and related non-financial information and reports so they can be well informed of the use and management of public funds. promotion of an equitable society by sharing the burden of taxation fairly;
b.
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c. d. e. f.
g.
h.
sharing of county revenues in an equitable manner; promotion of equitable development in county governments; special allocations and provisions for marginalized groups and areas; ensuring the burdens and benefits of the use of resources and public borrowing in a county governments is shared equitably between present and future generations; prudent and responsible use, management and accounting of county financesPublic funds are managed with prudence and integrity, assets are safeguarded and resources are used effectively, efficiently and economically to achieve county objectives and effective and efficient systems of internal control are in place, to ensure that the income and physical assets are safeguarded against misuse, damage, loss or theft. clear fiscal reporting of county finances- There are clear accountabilities for financial management, which provide assurance to the County Legislative Assembly regarding the effective use of public funds and the results achieved.
These will be the guiding posts as policy and institutional structures that will buttress the management of public resources by counties are designed in this chapter. Legal and regulatory frameworks to guide financial management in counties will also be recommended.
12.2
REVENUE
12.2.1 Inter-Governmental transfers

The Constitution establishes County governments as independent entities with both executive and legislative powers. The executive is responsible for specific functions assigned by Article 186 and the Fourth Schedule of the Constitution. In performing the assigned functions counties will utilise resources from intergovernmental transfers, County revenues (own resources) and borrowing. This section analyses revenue transfers from the national government to county governments as provided by the COK, 2010. It proposes mechanisms for ensuring that intergovernmental transfers are equitably shared between national and county governments and among county governments. This is important because revenue assignments must ensure that the principle of finance-follow-function applies. Ideally county governments should meet their expenditure responsibilities through locally generated revenues. As widely accepted this would align the benefits and costs of delivery of services142; and in particular it would be in line with the subsidiarity principle143. However, this ideal situation does not even apply in many developed countries and so local governments still rely on revenue sharing with national governments. The reason behind this is the narrow revenue base for county governments, especially where national governments assign themselves major tax sources and where expenditure responsibilities are assigned to local governments Page | 236
without corresponding finances. This problem may be complicated in situations where county governments compete for investments through fiscal incentives, thus triggering a race to the bottom in tax reductions leading to diminishing own revenues.
12.2.2 The Principle of Funds Must Follow and Match Functions

The constitution provides that County Governments shall have reliable, stable and predictable sources and allocations of revenue to enable them to effectively perform their constitutional functions and to deliver services within their jurisdictions (Article 175) Article 203(1) (d) (j). The sources of such revenues and allocations include equitably shared national revenues, own revenues raised by respective counties, conditional and unconditional grants from the National Government, loans from the money and capital markets and grants from external agencies and local institutions. The supreme law also stipulates that if a function or power is transferred from a government at one level to a government at the other level, arrangements shall be put in place to ensure that the resources necessary for the performance of the function or exercise of the power are transferred 187(2)(a). The foregoing provides the constitutional basis and rationale for the principle of funds must follow and match functions. This principle should therefore be provided under both policy and legislation and implemented to avoid mismatch between functional responsibilities and availability of resources to Counties. Observance of the same would also provide a basis for planning and institutional accountability. 12.2.2.1 Revenues for county governments
The Constitution provides for intergovernmental transfers that include General Purpose/ Block Transfers Equalisation Grant Conditional grants Unconditional Grants
Since decentralised funds have in recent times accounted for a substantial share of transfers and have played an important role in financing development projects at the local level it is important to examine their role under the new dispensation. Allocation of revenues either between the national government and county governments or among county governments must be on the basis of the following principles set out in Article 203(1) of the Constitution:
a. the national interest; b. any provision that must be made in respect of the public debt and other national obligations; c. the needs of the national government, determined by objective criteria;
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d. the need to ensure that county governments are able to perform the functions allocated to them; e. the fiscal capacity and efficiency of county governments; f. developmental and other needs of counties; g. economic disparities within and among counties and the need to remedy them; h. the need for affirmative action in respect of disadvantaged areas and groups; i. the need for economic optimisation of each county and to provide incentives for each county to optimise its capacity to raise revenue; j. the desirability of stable and predictable allocations of revenue; and k. the need for flexibility in responding to emergencies and other temporary needs, based on similar objective criteria.
In summary these principles require that national interest be taken into consideration in the allocation of national revenues and the determination of financial requirements by the national government must be on objective basis. The allocations must enable the counties to deliver on their assigned functions, for the purpose of promoting development, reducing economic inequality among counties and uplifting the living conditions of marginalised areas and groups. While the allocation of revenues must pay attention to the efficiency of county governments, the allocations must be stable and predictable and should provide sufficient flexibility for emergency needs. The allocation must also provide incentives to counties to mobilize own revenues. 12.2.2.2 Sharing of National Revenue
Article 203(2) provides that revenue raised nationally will be shared equitably and that county governments shall be allocated not less than 15 per cent of the revenue. Three issues arise here. Firstly, the definition of national revenue should be clarified. The budget estimates for 2112/2013 fiscal year contained in the Budget Policy Statement, 2011 show that vertical allocations to counties and the Equalisation Fund have been calculated using ordinary revenues. Since allocations are made from audited accounts revenue raised nationally could in addition include grants and appropriations in aid collected by ministries and departments as this would be the most appropriate measure of allocation. Secondly, the Constitution only provides for minimum vertical allocations to counties. In working out the exact allocations the finance-must follow-functions principle must be applied so that the exact amount of resources required by counties to deliver on the functions are established. This requires that accurate costing of functions must be made and documented so that as functions are transferred the formula is adjusted accordingly. Thirdly, the formula for horizontal revenue allocations among counties is not provided by the Constitution. This task, including the basis for vertical allocation of revenues is assigned to the Revenue Allocation Committee (CRA) under Article 216(1).
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The latter issue, especially the efficacy of CRAs recommendations on the sharing of revenue require careful analysis. This is particularly important considering that Article 216(5) requires CRA to submit its recommendations to the Senate, the National Assembly, the national executive, the County Assembly and the county executive. Although CRA does not allocate revenue, but recommends the Constitution does not specify how the recommendations are to be processed yet it anticipates variations from the recommended allocations (Article218 (2c)). It is proposed that this lacuna can be cured by a legislation that provides a mechanism and process in which the six concerned institutions can reach an agreement on annual revenue allocations. It should also provide details on how Senates resolutions on the basis for horizontal allocations once every five years according to Article 217 will be developed and agreed on. 12.2.2.3 Vertical Revenue Sharing
The first major step in implementation of an intergovernmental fiscal transfer system is to determine the vertical allocation of resources: what should the size of the transfer pool be? This begs a number of questions chief among them: how do we know what an adequate amount of funding for county governments is? Secondly how can policy makers come up with a funding rule that would ensure the stability and predictability of the transfers? A taxonomy of intergovernmental transfers developed by Roy Bahl and Johannes Linn (1992) concludes that there are three common approaches to determining the size of the total grant pool (i.e., the vertical dimension). The total amount of resources to be allocated may be determined (i) as a share of central government revenue, (ii) on an ad-hoc basis, or (iii) it may be determined on a basis of cost reimbursement. Most countries use one or more of these three methods. As already noted, Article 203(2) provides that transfers to county governments will be not less than 15% of the revenue raised nationally. The revenue allocations to county governments for the 2012/13 and 2013/14 as provided in the Budget Policy Statement of 2011 are estimated on the basis of the not less than 15 per-cent rule. The Government recognises that the projections will have to be revised on the basis of the recommendations of Page | 239
Commission on Revenue Allocation (CRA). It is also acknowledged that the allocations are subject to appropriate costing of the assigned functions before being reflected in the 2012/13 MTEF budget. In general it is evident that the budgetary realignment that has to follow the devolution of functions to counties will have to be accommodated by rationalisation of government ministries and departments.This reality must disabuse those who think that county governments are glorified local governments. The implication of the costing of assigned functions can be understood by analysing how resources are allocated under the medium term expenditure framework (MTEF) system. It requires Ministries clustered around nine (9) groups to bid for resources on the basis of priorities aligned to Vision 2030 and the Medium Term Plan, but in reality budgetary allocations to ministries have not radically changed over the years. This is because a large share of the national budget finances recurrent expenditures leaving development expenditure to be almost exclusively financed by external resources and domestic borrowing. This pattern of expenditure especially with regard to development finance is not tenable for counties because unlike the national government they will have limited access to external resources and domestic borrowing. This is why it is proposed that as part of addressing the problem, ministries and departments should in detail document and cost the functions they intend to devolve to the counties. This will identify human, financial and infrastructural resources required by counties to perform their assigned functions. The costing of these requirements will provide the basis for estimating the expenditure needs of counties, and ultimately the total national revenues to be shared vertically. The process will at the same time assist ministries to redefine mandates and restructure their operations for effective delivery of national functions. This will invariably lead to shedding of excess staff that must be either absorbed by the counties or retrenched 12.2.2.4 Horizontal Revenue Sharing144
After agreement is reached on the total amount of resources to be allocated to counties, the next and probably more difficult task is to agree on the formula for equitable allocation of these resources to each of the 47 counties. The principle that should underpin this process is that each county should be allocated resources that would match its expenditure needs. This will ideally be the difference between the expenditure needs and the resources they can raise on their own by way of taxes, fees and other charges. As already noted Article 216(5) provides that the Revenue Allocation Commission will recommend the formula for horizontal revenue sharing. A formula uses some objective, quantitative criteria to allocate the pool of revenues among the county governments. The use of a formula creates a sense of fairness in that all stakeholders know the exact criteria by which distributions are made, and there is flexibility in that distributions may change as the needs for public
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expenditures change. The formula-based mechanisms should ensure that the horizontal allocation of resources among counties is consistent with the countrys policy objectives on devolution. The development of the formula-based allocations should be guided by the following generally accepted principles: o Provide revenue adequacy: A transfer formula should provide a source of adequate resources to the county governments to perform their mandated functions Enhancing equity and fairness: The transfer formula should support a fair allocation of resources. Stability: Transfers should be provided in a predictable manner Simplicity and transparency: Transfer formulas should be simple and transparent, Incentive compatibility: should not create negative incentives for local revenue mobilization, and should not induce inefficient expenditure choices. Focus on service delivery: Transfer formulas should focus on the demand (clients or outputs) rather than the supply (inputs and infrastructure) Avoid equal shares: Reliance on the equal shares principle as a major allocation factor should be avoided in the design of an allocation formula. Respect the Pareto Principle145: This means that while the allocation mechanism would favour marginalised areas and communities in the effort to bring them closer to the other communities, care should be taken to avoid making these other communities worse off.
o o o o o o o
In determining the appropriate allocation factors to be used in the formula, the CRA should consider the following: o o o o Accuracy: The variable should accurately reflect the specific characteristics and should be statistically sound. Regularly updated: The variable should be regularly updated in the future. Independent source: The variable should come from an independent source respected by all stakeholders Free of local manipulation: The variable should be drawn from a source that cannot be manipulated by locally (unless the central government has an adequate capacity to monitor and verify locally reported statistics). Reflect needs or demands: The variable should reflect needs or demands for public goods
The stakeholders engaged during the county consultations were of the view that the transfers should be used to promote balanced development. The specific views Page | 241
emphasise the equity role of horizontal revenue sharing. They proposed that the allocation criteria should consider factors such as population, poverty, level of development, number of districts or constituencies, historical marginalisation and injustices, capacity to manage resources and special needs of counties. On the other hand, there were proposals that allocations should take into account the potential of local economy, contribution to national tax base and natural endowments. Some of these views are in line with best practices applied in designing the formulae for revenue allocation. One of the common revenue sharing formulae that are used in Kenya is the Constituency Development Fund. Under this formula 75 per cent of the funds are BOX: 12.2: COUNTY VISIT SUBMISSIONS ON CRITERIA FOR shared out equally among all EQUALISATION FUND constituencies, leaving the remainder to be poverty index allocated on the basis of poverty index. population density Population would best represent the needs size of the county levels of development counties and would also be a simple, level of service delivery objective and transparent indictor for human development indicators revenue sharing. The problem with this historical injustices indicator is that by sharing out a large portion equally among counties it would negate the principle of equitable sharing of revenues espoused by the Constitution. 12.2.2.5 Equalisation Fund
The Constitution (Article 204) establishes the Equalisation Fund into which 0.5% of revenue collected by the national government is paid every year initially for a twenty year period. Monies in the Fund will be used to uplift the quality of basic services such as water, roads, electricity and health in marginalised areas to levels enjoyed by the rest of the country. The Fund could through direct expenditures by the national government or as conditional grants to counties. Article 216(4) provides that CRA shall on a regular basis determine, publish and review policy for setting the criteria for identifying marginalised areas. Establishing marginalised areas is not going to be an easy task, but one method of doing so is through comparison of service delivery outcomes. An example could be to treat areas where access or service delivery outcomes fall below some level of national average as marginalised. Some of the indicator outcomes that could be used are percentage of population with access to clean water; percentages of bitumen or earth roads; households with access to electricity; and, health indicators such as immunisation coverage, infant mortality, maternal mortality or distance to the nearest health
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centre. Geographic information system (GIS) data on these indicators could be plotted on the map of Kenya to determine the marginalised areas.
BOX 12.3: COUNTY VISIT SUBMISSIONS ON CONDITIONAL AND UNCONDITIONAL FUNDS From the county consultations, participants views were that the sharing of conditional and unconditional fund should be through public participation and that projects funded by such funds should be targeted and prioritized. Other views expressed for consideration were: Development of regulations on use and management of such fund, Resources endowment of the county Have a strategic plan and a long term development plan An affirmative action for the marginalized groups and regions Such finds may be used to cater for calamities and disasters
It is to be noted that the allocations to the Fund is going to be miniscule when compared to the expected expenditure needs. This will call for prioritization of expenditures and a formula for allocation of funds that will be agreeable to the determined areas. Box 12.2 shows the variables that were proposed by the stakeholders for inclusion in the formula. Ideally, because of the limited resources expected from the Equalisation Fund the national government and county governments should work together in identifying priorities to benefit from the Fund. Alternatively the national government could provide conditional grants to county governments, but allow them to identify priorities as long as they are within agreed sectors. Either way the formula for allotting revenues must place greater weight inputs that guarantee the most desirable outcomes. Where resources from the Fund are used to finance infrastructure development in counties ownership of the infrastructure must be agreed at the outset to avoid poor maintenance in the future. This problem could be addressed by allowing the county governments to be involved in the identification and implementation of the projects. The projects should also be handed over to the counties immediately after completion. 12.2.2.6 Conditional and Unconditional Grants
County governments may be given additional allocations from the national governments share of revenue, either conditionally or unconditionally (Article 202). Conditional grants are moneys allocated by the national government to a county government for the funding of specific projects and programs. The use of such money should be solely for the purpose for which it is allocated. On the other hand, unconditional grants are moneys allocated by the national government to the county government without reservations or conditions imposed regarding the use and there
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are no set limits on the subsequent actions. A county government can use such funds to finance any of its programs in its annual budget. Conditional grants include the Equalization Fund provided under Article 204 of the constitution to finance basic services such as water, roads, health facilities and electricity to marginalized areas. The Contingency Fund established under Article 208 to cater for urgent and unforeseen needs for which there is no other authority or provision can also be categorized as a conditional grant. Financial allocation of such grants shall be guided by the criteria for equitable share of national revenue outlined under Article 203 including the:
a.
need to ensure that county governments are able to perform the functions allocated to them; b. Promotion of national interest ; c. Need to make a provision in respect of the county public debt and other financial obligations; d. economic disparities within and among the counties, and the need to remedy them; e. the need for affirmative action in respect of disadvantaged areas and groups; f. need for economic optimization of each county; g. the need to implement economic and social rights h. need to provide incentives for counties to optimize their capacity to raise revenue; and i. fiscal capacity and efficiency of county governments. Policy and legislation governing the equitable share of national revenues and the allocation of conditional and unconditional should provide for safeguards to ensure objectivity, equity, transparency and accountability in the allocation and application of such grants. Application of the principles for equitable share of national revenues should however take cognizance of the need to provide incentives for counties that contribute significant proportions of the Nations wealth and GDP. This is informed by the wisdom encapsulated in the idiom of not killing the goose that lays the golden eggs granted considerable amounts of the national tax revenues would be generated and collected from institutions and persons residing in such counties. Some of the aspects that should guide the allocation of such funds include the poverty level of the county, the need to restore infrastructure destroyed during calamities and disasters and the need to catalyse development socio-economic initiatives in a county; among others. The principles of public finance and devolution should also apply in the use of such funds. Financial management mechanisms such as requirements for detailed proposals with clear objectives and goals for the use of funds, prioritization of projects to be funded within the budgets and strategic plans of counties should be
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part of the framework for evaluating requests for such funds. The need to finance strategic county and inter-county projects and programmes with demonstrable huge regional and nationwide positive socio-economic impacts would be important consideration. Appropriate controls BOX: 12.4: LISTING OF DECENTRALISED and safeguards should also be put FUNDS IN KENYA in place to prevent the misuse and Constituency Development Funds (CDF) inappropriate application of Local Authorities Trust Fund (LATF) moneys appropriated and given as Free Primary Education Fund Constituency Bursary Fund conditional and unconditional Road Maintenance Levy Fund (RMLF) grants. Some of the controls in Youth Enterprise Development Fund question include public Women Development Fund participation, monitoring and Poverty Eradication Loan Fund Water Services Trust Fund evaluation. 12.2.2.7 Decentralised Funds
HIV/AIDS Community Initiative Account Community Development Trust Fund Rural Electrification Programme Levy Fund
The transfers to lower jurisdictions have proliferated over the last few years and are now considered major drivers for local development and service delivery. These funds are shown in Box 12.4, while their importance is evident from the views expressed on the matter by the stakeholders during the consultations as shown in Box 12.5. Although not directly provided for by the Constitution in the context of revenue sharing, stakeholders were unanimous that devolved funds should continue to be provided by the national government to counties, but to be managed by the county executive. The funds while considered important for development are believed to have been misused by politicians and this informs the call for their retention under the management of county governments. Since devolved funds are transfers to sub-national governments to finance functions that would otherwise be the responsibility of national governments then among these transfers only LATF and BOX 12.5: COUNTY SUBMISSIONS ON DECENTRALISED RMLF would qualify as FUNDS intergovernmental transfers. Communities felt that devolved funds have transformed lives in the These two funds should rural areas and recommended that the government should continue therefore be considered as disbursing them. However, they suggested the need to establish a part of the horizontal central office within the county to coordinate the use of the funds to avoid duplication of projects and uncoordinated activities. They also revenue sharing as they indicated that devolved funds should not be directly managed by would finance functions politicians and should only play an oversight role Youth and women funds be brought to the county level to assigned to county enhance accessibility of the funds since most people at the governments. This applies to county level have no information regarding the funds CDF since it has also been For transparency and accountability in the use of the funds, it
should be more participatory The offices of KACC (Ethics and Anti-Corruption commission ) should be devolved to the counties to avoid corruption, mismanagement of funds and abuse of office for ease of reporting, quick investigation and action
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funding functions currently assigned. Those funds which are conditional in nature, namely Constituency Bursary Fund, Free Primary Education Fund, Water Services Trust Fund and HIV/AIDS Community Initiative Account could continue to be channelled to county governments. The other funds, except the Rural Electrification Programme Levy Fund, are a combination of loan facilities available to individuals or groups to promote development of rural areas managed by entities of the national government. There is no compelling reason to change the current system of managing these funds, except as proposed by the stakeholders. The offices of the responsible entities could be decentralised to the counties for efficient delivery of services. The management of rural electrification function could be devolved to county governments.
12.2.3 County Own Revenues

12.2.3.1 Taxation Revenues County governments may raise their own revenues by imposing taxes and charging fees for services. Such taxes should however be raised in a way that does not prejudice national economic policies, economic activities across county boundaries or the national mobility of goods, services, capital or labour (Article 209). The taxes and charges that county governments can impose or charge include:
a. property rates; b. entertainment taxes; and c. Any other tax authorized by an Act of Parliament (Article 209 (3c).
In levying taxes, County governments should conform to the constitution and also adhere to the key principles of taxation including: a. b. Equity: the burden of taxation should be shared in accordance with the respective taxpayers ability to pay. Simplicity, transparency and certainty: the procedure, manner and time for collection of the tax should be simple and clear, and the amount of tax to be paid is unambiguous. Effectiveness: the tax base should have the capacity to achieve its basic objectives. Efficiency and Cost: the time and expenses for tax collection and administration should be minimal and cost effective. Flexibility: the tax base should be responsive to economic and other environmental dynamics and is capable of change over time. Enforceability: the rules pertaining to the tax must be easy to enforce within the county. Exportability: the tax should have the potential to generate a revenue stream from non-residents (both individuals and businesses) who enjoy public services provided by a County. Page | 246
c. d. e. f. g.
h.
Burden equity: the burdens and benefits of taxation and the use of resultant resources should be shared fairly and equitably between present and future generations.
The envisaged legislation on County taxation should cover rating, valuation for rating, the criteria, steps and procedures for tax or fees calculation, tax collection procedures and should also specify the sanctions for non-compliance. Rating of properties in urban areas and cities should be based on both the improved and unimproved site values. Exemptions for payment of rates should be legislated against as this will deny Counties substantial revenues. The law should instead require all the National Government institutions, Independent Commissions, Independent Offices, State Corporations and Non-State Institutions to budget and pay rates due to their respective County Governments. This entails the discontinuation of the contribution in lieu of rates (CILOR) system currently in operation due to its ineffectiveness. Possible additional taxes that counties can be allowed to levy under the envisaged legislation include Royalty taxes levied on minerals and other natural resources within the county. These would include minerals, game reserves, forestry and marine. Indeed Article 66(2) obliges parliament, while regulating the use of land, to enact legislation that ensures that investment in property benefit local communities and their economies. Historically, communities within certain regions have survived alongside the resources and have sustainably exploited them for their survival. Any exploitation of the natural resource will inevitably impact on the lives of the community. Naturally the environment will be negatively affected and there is need to compensate the region by supporting ways of mitigating the said effects. 12.2.3.2 Tax Collection in Counties
The constitutional powers and functions on tax revenues administration in counties have five elements: power to impose tax, tax revenue collection, tax revenues control, tax expenditure and related controls, and tax revenues reporting and auditing. Institutional responsibility for tax revenues control, tax expenditure and the reporting and auditing of tax revenues is assigned to the Controller of Budget, the County Governments and the Auditor General, respectively. The power to impose tax is vested in the county government. There is no express constitutional assignment of the responsibility for tax revenue collection. There are four possible options that can be adopted. First, respective county governments can set up tax collection departments or divisions for the purpose. Secondly, respective county governments can contract out the task for tax/debt collection to private organizations. Thirdly, a new County Tax Revenue Authority could be established to help in the collection of tax revenues for all the 47 counties.
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Fourthly, the Kenya Revenue Authority could be empowered through national legislation to collect tax revenues for all counties. The challenge for the operationalization of the taxation principles outlined above and the need to maximize the huge tax revenue potential for all the 47 county governments dictates that the assignment of the power to collect tax revenues must be informed by past experiences. Currently the reliance of the first and second options by local authorities has not led to improvements and cost-effectiveness. The third option of establishing a county specific tax collection institution will come with attendant initial capital expenditure and scale economies disadvantages compared to the fourth option. The comparative advantage of National Governments in the collection of taxes through legally empowered national agencies is well established in many country jurisdictions. Local experience has also shown that the involvement of the Kenya Revenue Authority (KRA) in the collection of land rents and the ceding of the power to collect water charges and fees to the Nairobi Water and Sewerage Company Ltd. It is therefore recommended that the legislation on county financial management or appropriate sections in the finance chapter in the County Governments Bill/Act should vest the power for the collection of county taxes to the Kenya Revenue Authority. The Finance Bill for the 2011/2012 Financial Year can also provide for this framework pending the enactment of the relevant legislation for county governments. The KRA Act could also be amended to make KRA a shared institution that serves the two levels of government. Involvement of KRA in tax collection for all county governments will have the added advantage of enforcing uniform standards and the generation of reliable data on county tax revenues that can be used in the determination of equitable share of national revenue. The use of KRA will result in economies of scale, lower tax administration costs and enhanced tax revenues. The constitution requires the two levels of government to cooperate, assist and support each other in the implementation of legislation governing the powers and functions of each level of government, including the exchange of information and the coordination of policies and administration and enhancing capacity Article 6 (2) Article 189 (1)(b) and (c) Article 189 (2). 12.2.3.3 Fees and Charges
Counties can impose charges and fees for its services and the legislation envisaged under Article 209 (3) should provide a clear framework of how this can be done. Fees and charges that counties can charge include: agricultural cess, livestock fees, house rents, market rents and fees, single business permits fees, traditional brew permits fees, service delivery charges, road maintenance levy, parking fees, rent for conference halls, county parks and related facilities, environmental conservation tax, anti-dumping taxes, charges and fees from public-private partnerships such as
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concessions, management contracts, leases, build-own-operate-transfer (BOOT) build operate transfer (BOT) and build-own-operate (BOO) schemes; amongst others.
12.2.4 Grants and Donations

County Governments may receive donor grants or aid either from foreign governments, non-governmental agencies, corporate institutions, philanthropists and individuals to support their social and economic development programmes. Such institutions include foreign national governments, local authorities, foundations, charities, international NGOs, private companies, relief and humanitarian agencies. Donor aid should be captured and appropriated as revenue or BOX 12.6: COUNTY VISITS appropriations-in-aid in the annual and SUBMISSIONS ON BORROWING AND GRANTS forward budgets of County Governments. Programmes to be funded A project must be economically viable, by such aid should be developed by the sustainable, and capacity to repay must be County Executive and incorporated in considered as well as the absorption capacity of the county county budgets for consideration and approval by the County Assemblies. The The public should participate in identifying application and use of donor aid must projects to be funded by such funds also be governed by the principles of transparency, accountability, public National government must set terms and participation, equitable development of conditions on loans and grants the county, including making special There should be consultation between the provision for marginalized groups. county and national government before Regulations on seeking, receipt, seeking for grants and loans budgeting, use and accounting for such funds should be included as an integral Countys capability in financial management, part of the appropriate county financial management legislation. The national interest, national development priorities, fiscal and monetary policies shall also be taken into account. Kenya may make a deliberate effort to establish the Loans Council whose functions could be expanded to include dealing with matters relating to donor aid and grants to counties. The inclusiveness and representative nature of the Council will ensure the letter and spirit of the constitution with regard to observance of the requirement that the two levels of government are distinct, interdependent and are required to operate on the basis of cooperation and consultation, albeit in a devolved unitary national framework. Figure 12.2 provides for such council
12.3
BORROWING
County Governments may borrow only with the approval of their respective county assemblies and if the national government guarantees the loan (Article 212). The Page | 249
county governments should have the option of borrowing from both the money and capital markets either externally and internally. Article 213 specifies that legislation prescribing the terms and conditions under which the national government may guarantee loans be enacted. Borrowing should be governed by the need for prudence including ensuring borrowed moneys is used in a responsible way. The overal institutional structure for the loans and grants systems is shown in figure 12-2 below
12.3.1 Internal and External Borrowing

The terms and conditions for consideration of loan guarantees by the National Government may include all or the bulk of the following aspects: Written proof that the intended borrowing has been approved by the County Assembly of the county seeking the loan; b. Written proof that the intended borrowing has been included in the budgets of the county; c. Proof of public participation in contributing to the budget and loan proposals of the county; d. Ability of the subject capital project to generate the necessary cash flows to repay the loan; e. Leadership qualities and management capacity of the County Executive; f. Financial management and probity of the county; g. Application, management and servicing of previous guaranteed loans; h. Proportion of the total loan portfolio of the county relative to both its annual budget and GDP; i. Level of conditional and unconditional grants by the National Government; j. Nature and implementation time frame of the project for which the loan is being sought; k. Quantified investment/project potential for wealth, employment and poverty reduction; l. Project/investment potential for local and national economic growth and development; m. Credit rating of the county; n. Compliance with the requirements for borrowing from the capital markets; o. Fiscal state of the county. a. Details on loan size, grace period, repayment term, interest rate, commitment fees, administration charges, loan signatories, disbursements, default penalties and other related pertinent aspects should be specified as substantive clauses in the relevant loan documents and covenants. In addition to above conditions external borrowing from international financial institutions, bilateral, multilateral and other external sources must, also be clear on the following aspects:
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a. b. c. d. e. f. g.
role of National Government departments in facilitating county governments; conditions for loan effectiveness; loan disbursement procedures; responsibility for the assumption of interest and foreign exchange risks; limitations on the amounts that county governments can borrow from external sources; conditions for national government bailouts to county governments; indemnity to the National government for costs incurred for the takeover and servicing of non-performing loans of defaulting county governments;
12.3.2 Loan Guarantees

Consideration of loans by the National Government should be efficient, transparent and accountable. Assessment and approval of loan guarantees for Counties must also be based on the national values and principles of public service, leadership and integrity that are clearly anchored in the service charters of the relevant and responsible National Government departments. The roles of national departments and officials responsible for loan guarantees must be clearly set out in regulations that specify the requirements and procedure for the consideration and approval of loans. The regulations in question should be developed as an integral component of the anticipated legislation. Loan guarantee applications must, for example, be acknowledged in writing within a week. The acknowledging letter must also confirm the receipt of all the required documents that need to be submitted and the time within which a decision on the loan guarantee will be communicated. Sanctions for unreasonable delay or refusal to grant approvals as well as appeals and review mechanisms for related decisions need also to be specified in the envisaged policy and legislation. Regulations outlining the procedure for the consideration and approval of loans should be developed as an integral component of the anticipated legislation.
12.3.3 Institutional Framework for Coordination of Borrowing and Grants

In order to ensure effective administration, monitoring and coordination of both internal and external borrowing and the administration of grants Kenya may draw lessons from the Australian experience and consider the establishment and provision of a 15 member Loans and Grants Council for Kenya under the legislation governing borrowing, loan guarantees and grants. Creation of such an agency will enable the country to avoid a situation whereby the problems or failure of non-performing counties adversely affect the rating and creditworthiness of other county governments and even that of the national government and other state organs. In Australia, for example, the need to coordinate public debt and to stem loss of creditworthiness arising from external borrowing led to the legal provision for the coordination of public borrowing by an intergovernmental Loans Council with power
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to make decisions binding on both levels of government. The functions of the Loans and Grants Council may include:
a.
regulation of internal and external borrowing by the National Government, county governments and other state organs; b. policy review and monitoring of the administration of national governments grants to county governments; c. policy review and monitoring of the debt management by the national government, county governments and other state organs; d. regulation of the procedures for the seeking, receipt and application and use of donor grants by the National Government, county governments and other state organs; e. setting limits and ceilings on the county governments powers to borrow; f. administration of a sinking fund established to help counties to redeem debt to improve their liquidity and creditworthiness; g. approval of grants to county governments to help them to meet loan interest payments or loans and sinking fund contributions. The role of the Loans and Grants Council in the regulation of borrowing would also complement the institutional framework for macroeconomic policy and management. The Membership of the Loans Council and Grants for Kenya could include:
a. b. c. d. e. f. g.
Secretary responsible for Finance as the Chairperson;
Secretary responsible for Devolved Governments; Secretary responsible for Foreign Affairs; Chairperson of the Association for County Governors (or its equivalent); Chairperson of the body representing county assemblies; Executive committee member responsible for finance for the Capital City; five members who are county executive committee members responsible for finance in their respective county governments, each elected to represent a cluster of counties constituted in a manner that reflects the diversity of the of Kenya Nation; h. four members each nominated by the respective apex organizations representing county assembly workers, the private sector, faith-based institutions and civil society organizations. A Secretariat for the Loans and Grants Council headed by a person at the level of Principal Secretary who is answerable to the Secretary responsible for finance should be established to deal with the management and administration of issues pertaining to loans, guarantees, public debt management and grants. The Council can be granted the power to make its own rules of operation, subject to the public participation governance principle.
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Figure 12.2:
Institutional Framework for Coordination of Borrowing and Donor Grants
12.4
PUBLIC DEBT MANAGEMENT IN COUNTIES
Over time, it is anticipated the combined and individual debt portfolios of county governments will be substantial. More often than not, such institutional debts contain complex and risky financial elements that can generate substantial risk to the county government's balance sheets as well the countrys financial stability. It is critical for county governments to be proactive through the formulation and implementation of credible debt management strategies in order to reduce excessive levels of debt and to ensure public sector indebtedness is maintained on a sustainable path. Public debt management is the process of establishing and implementing a strategy and plan for managing a county government's debt in order to raise the required amount of funding and the achievement of desired risk, cost objectives and goals. From a broader macroeconomic context for public policy, governments should seek to ensure that both the level and rate of growth in their public debt is fundamentally sustainable, and can be serviced under a wide range of circumstances while meeting cost and risk objectives. The public debt management policy of county governments can be used as a mechanism for meeting other sovereign debt management goals the national government may have set, such as developing and maintaining an efficient market for government securities and to reduce both the countys and countrys
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vulnerability to national/international financial shocks. Examples of indicators that address the issue of debt sustainability include the public sector debt service ratio, and ratios of public debt to GDP and to tax revenue. County-level public debt managers should ensure that national government fiscal authorities are aware of the impact of the county government financing requirements and debt levels on borrowing costs.
12.4.1 Objectives of Public Debt Management

The objectives of public debt management in counties include: a. to ensure that the county governments financing needs and its payment obligations are met at the lowest possible cost over the medium to long run, consistent with a prudent degree of risk; Support the public finance strategy by assuring that the execution of the public debt policy in the medium and long term will take place in an environment of public debt sustainability; Foster a healthy development of the county financial system and improve the efficiency of the local debt market; and Promote transparency and the modernization of the statistical information related to public debt
b.
c. d.
12.4.2 Principles and Techniques for Public Debt Management

Principles and techniques for public debt management that county governments should embrace include:
a.
Transparency and accountability: financial openness and assurances of integrity by agencies responsible for debtmanagement; b. Legal institutional framework: the public debt management governance should clarify the authority to borrow and to issue newdebt, invest, and undertake transactions on the County Governments behalf; c. Debt management strategy: the risks inherent in the County Governments debt structure should be carefully monitored and evaluated. These risks should be mitigated to the extent feasible by modifying the debt structure, taking into account the cost of doing so; d. Risk management framework: a framework should be developed to enable debt managers to identify and manage the trade-offs between expected cost and risk in the county government debt portfolio; e. Development and Maintenance of an Efficient Market for Government Securities: in order to minimize cost and risk of public debt over the medium to long run, debt managers should ensure that their policies and operations are consistent with the development of an efficient government securities market.
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12.4.3 Framework for County Public Debt Management

A clear legal and institutional framework is necessary in each county for managing issues relating to county public sector borrowing and debt management. Legislation on sovereign borrowing sets out the authority to borrow and delegate power from the body within the county which has the financial authority to the body that does the borrowing on behalf of the county;
a.
Functional organizational structure:the functional organization for public debt management should correspond to the spheres of debt management aspects that are identified; b. Coordination with fiscal and monetary policies: it is important to ensure effective coordination of county debt management initiatives with national fiscal and monetary policies while maintaining separate responsibility for each is an important aspect of debt management; c. Regulations: It is essential to formulate regulations and procedures which set out the explicit roles of the departments of state responsible for finance, county governments, foreign affairs, the central bank, capital markets authority, other agencies involved in loan operations and management at all stages of the loan cycle; d. Issues of guarantees: in the case of a payment guarantee, the guarantor takes on an obligation to pay some of the entire principal amount of the debt and accrued interest if the borrower defaults. So the development and adoption of guidelines for the administration and management of guarantees at both the national and county levels is an important aspect of county public debt management; e. On-lending arrangements: Often other public sector borrowers seek the assistance of the government when directborrowing is difficult or not possible.
12.5
PLANNING AND BUDGETING
12.5.1 County Planning and Budgeting Linkages

The relevant Constitutional provisions related to county governments planning, and budgeting are Articles 185, 220 and the Fourth Schedule on functions. Article 185 (4) provides for the county assembly to approve plans and policies for the management and exploitation of the countys resources; and the development and management of its infrastructure and institutions. This is in accordance with the functions provided in the Fourth schedule, function 2 (8) which state that every county government is responsible for the County Planning and Development. This means that the county governments will require to anchor their development plans to the national plans. The planning cycle will also need to be compliant with the national development plans as shown in Figure 12.5.
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Figure 12.3:
Planning & Budgeting Framework
The government is currently implementing the Vision 2030 whose aim is to transform Kenya into a newly industrializing middle income country by the year 2030. The BOX 12.7: COUNTY VISIT SUBMISSIONS ON vision is implemented through PLANNING, EXPENDITURE AND REVENUE LINKAGES successful five year medium During the county consultations the communities raised term plans coordinated by the various issues which were relevant to planning, expenditure ministry in charge of planning. and revenue linkages, they would want to see implemented at the county level. The major recommendations by the The ministry normally Kenyan public they would want to see to ensure sound organizes stakeholders fora for budgeting, financial management and planning included the following: development of the national a) The county governments should consistently develop their medium and long term plans that will guide them in development plans coordinated development of their counties. from the regions to the national b) There is need to embrace ICT as a tool for planning. c) The budgeting should be preceded by socio-economic level. The regional outreach is needs assessment, resource mapping and development normally to the districts where prioritization. d) Priority should be given to the needs of the people and the various stakeholders, that grants whether conditional or non-conditional should including private sector, civil be project targeted societies, faith based organisations, and other organized and individuals Page | 256
gather to give inputs which would feed into the national plans. The above planning process is participatory and consultative to some extent as it has been bringing together stakeholders, to create a better understanding of issues, to agree on priorities and to seek local solutions built around broad-based consensus. This process seems in congruence with the views of the Kenyans based on the consultations as indicated in the Box 12.7. However it will be important to review the process against the good principles of participation to ensure that there is full participation of the Kenyans as provided for in the CoK 2010. Currently there is no law governing the process of planning, though there are proposals to legislate it. The work towards this development will need to be reviewed and ensure that it is compliant with the provisions of the CoK 2010 as also prescribed in Article 220. Article 220 (1) requires both governments develop annual budgets containing the annual estimates of revenue and expenditure, differentiating between recurrent and development expenditure; proposals for financing any anticipated deficit for the period to which they apply; and proposals regarding borrowing and other forms of public liability that will increase public debt during the following year. Article 220 (2) requires a national legislation be enacted to prescribe for the structure of the development plans and budgets of counties; their tabling in the county assemblies; and the form and manner of consultation between the national government and county governments in the process of preparing them. This legislation among other things will contain the following: a. b. c. d. e. f. The generally accepted planning and budgeting principles The linkages between the national and county plans and budgets The consultative process which is fully public participative Comprehensive monitoring and evaluations framework Comprehensive provisions for budgetary controls Planning and budgetary cycles and reviews
In addition the law will require to incorporate the ten principles of budgeting outlined below: 1. Comprehensiveness: The budget must encompass all fiscal operations of government, i.e. off-budget expenditure and revenue are prohibited. 2. Discipline: Decision-making must be restrained by resource realities over the medium term; the budget should absorb only those resources necessary to implement government policies; and budget allocations should be adhered to. 3. Legitimacy: Policy makers, who can change policies during implementation, must take part in and agree to the original policy.
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4. Flexibility: Decisions should be pushed to the point where all relevant information is available. 5. Predictability: There must be stability in macro and strategic policy, and in the funding of existing policy. 6. Contestability: All sectors must compete on equal footing for funding during budget planning and formulation. 7. Honesty: The budget must be derived from unbiased projections of revenue and expenditure. 8. Information: A medium-term aggregate expenditure baseline against which the budgetary impact of policy changes can be measured and accurate information on costs, outputs and outcomes derived should be available. 9. Transparency: Decision makers should have all relevant issues and information before them when they take decisions and these decisions and their basis should be communicated to the public. 10. Accountability: Decision makers are responsible for the exercise of the authority provided to them.
12.5.2 Budget Process

Kenya has over the last 11 years since 2000 been using medium Term Expenditure Framework (MTEF) budgeting process. MTEF is a broad approach to integrating policy-making, planning and budgeting over a 3-year period based on policy priorities. The process is meant to ensure that there is certainty and consistency in funding for ministries; and adequate measures for enforcing government to stick within its overall budget (aggregated hard budget constraint), while allowing for flexibility in expenditures between ministries and programmes. There are currently five MTEF sectors in Kenya comprising of Physical Infrastructure; Special Programmes; Human Resource Development; Environment, Water and Sanitation; and most recent the Governance, Justice, Law and Order experience however shows that while MTEF can be an effective tool for planning and budgeting, Kenya is far behind its neighbours in using the tool effectively for expenditure management. The causes identified were mainly two based on a review undertaken in 2004 by the developmental partners. The first noted was that the MTEF process and the annual budget formulation process operated as a parallel processes rather than an integrated process, with the MTEF process being used more as a planning instrument than a budgeting instrument. Secondly, the MTEF process did not specify intersectoral priorities or even priorities within sectors for the approval of Government officials or of cabinet. Thus, budgeting in Kenya remains largely incremental, and significant reallocations of expenditures to high priority sectors (or within sectors from lower priority to higher priority activities) are not taking place. Similar findings were noted during the end term review of the GJLOS146.
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Based on the experiences of many countries, as evidenced from Tanzania and Uganda, MTEF can be an effective tool to integrate policy with planning and budgeting. The importance of MTEF is to facilitate the government achieve fiscal discipline, to allocate expenditures in line with national priorities, to coordinate donors, and to ensure transparency and accountability. One tool which has been practiced to achieve the MTEF key factors of fiscal discipline, to allocate expenditures in line with national priorities, to coordinate donors, and to ensure transparency and accountability, is the sector-wide approach to planning (SWAp). SWAp is a process intended to support a locally-owned coherent sector strategy and expenditure program under Government leadership in a comprehensive and coordinated manner. It is an approach based on a shared vision and shared priorities and on a joint commitment to a sector strategy and policy framework, rather than a financing instrument. The core SWAp framework is shown in table 12.1 below. Table 12.1: SWAP Process
Framework Policy framework Planning framework Funding framework Core elements 1. Definition of the national sector framework (what to align to) 2. Partnership principles (common donor policies on how to align) 1. Sector Investment Plan SIP (tool for prioritisation) 2. Sector Information System performance monitoring 3. Coordination both inter-sectoral and with external partners 1. Channels of funding (ladder of options project, basket, budget support) 2. Financial management (transparency, accountability, value for money) 3. Resource mobilisation (using SWAP to increase funding)
SWAp has so far been implemented to a certain extent in the Governance, Justice, Laws and Order Sector (GJLOS). Other sectors where SWAp has been tried include the Water and the Health sectors. Evidence shows that implementation of SWAp in these three sectors has not appreciated the above principles and as such MTEF has received criticisms from the various agencies. The important factor is that SWAp is not a blueprint, but a process that evolves over time depending on context-specific factors. Article 201 of the Constitution requires that the public be involved at all levels in financial matters. Internationally best practices have shown that public participation is best exercised through the use of the Project Cycle Management (PCM) and Community Participation (CP) tools. The tools are designed to ensure that stakeholders are consulted and relevant information is available, so that informed decisions can be made at key stages in the life of a project. The use of these tools enhances the SWAp evolution and at the same time makes the MTEF process more effective and efficient tool for planning and budgeting.
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Figure 12.4:
SWAP MTEF Framework
Figure 12.4 shows a graphical representation of the MTEF supported by SWAP and PCM/CP processes. With the constitution requirement that counties plan and budget be based on functions and delivery of services, these tools will be the most appropriate for the purpose. The operationalization of these tools will be spelt out in the policy and the relevant legislations. The key public participation issue which need to be captured in the proposed legislation will ensure that the following provisions as provided in the Constitution of Kenya 2010 are incorporated or referred to in a separate legal framework. a. b. Article 10 to ensure that there are provisions which ensure that national values and principles of good governance are incorporated. Article 196 to ensure that county assembly conduct its business in an open manner, and hold its sittings and those of its committees, in public; and facilitate public participation and involvement in the legislative and other business of the assembly and its committees.
The proposed county planning and budget legislation will also contain the details to be published annually in the Appropriation Act as envisaged in Article 224 of the Constitution 2010. The Appropriation Act will contain the same details for the development and recurrent expenditure approved by the County Assembly. Further the planning and budget legislation will contain the procedure for withdrawal of
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funds from the county revenue fund before the assenting of the appropriation Act as envisaged in Article 222. Article 223 provides that the national government may spend money over and above the funds allowed within the Appropriation Act for the financial year. Details of such expenditure are provided for in the Constitution. This amount should not be more than 10% of the budget for year unless approved by Parliament. Though the provision of Article 223 does not mention the county governments it is our proposal that they should also be allowed to have supplementary appropriations to be drawn from their revenue funds. The details of such provisions should be included in the county planning and budget legislation.
12.6
EXPENDITURE CONTROL
12.6.1 Expenditure Controls Framework

Figure 12-5 shows the expenditure control framework, indicating the funds expected to be withdrawn from the Revenue Fund account and the control mechanism of the spending. Article 207 of the constitution provide for the establishment of County Revenue Fund for each county government, into which all money raised or received by or on behalf of the county shall be paid except money excluded by an Act of Parliament. The conditions given for withdrawals from this Fund can only be made it is a charge against provided for by an Act of Parliament or by legislation of the county, and is authorized by an appropriation by legislation of the county. Secondly the money can only be withdrawn from the fund only with the approval of the Controller of Budget. Article 190 and Article 225 require all the county governments to maintain proper and adequate financial management systems and to be fully accountable to the public on the expenditure and utilisation of the funds of the county. This whole process is graphically explained in the expenditure control framework shown as figure 12-5. The expected system as explained above in the chart will be as follows:
a.
All the county funds as explained in the revenue section above will all be consolidated in the County Revenue Fund. The fund will contain own revenues and transfers from the national revenues, grants and borrowings.(Move it to the revenue fund) b. The county assemblies will vote for the budget as explained in the last section and the necessary Appropriations approved to facilitate expenditure by the various departments of the county. c. It is anticipated that the county treasury will seek quarterly approvals from the Controller of Budget for withdrawals from the revenues fund based on the needs and functions being undertaken by the various departments.
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Figure 12.5:
Financial Control Systems in County Governments
d. The treasury will then disburse the funds to the departments for expenditure as per the appropriation act and the necessary approved project proposals which informed the original budget. As noted above in the budget section it is anticipated that the public participation will be part of the evolution of the budget in accordance with the good principles of project cycle management. e. In every county there will be the county accountant general within the treasury who will maintain up to date financial records of all funds withdrawn from the revenue fund and expenditure incurred as per the appropriation act. Details of the financial and accounting systems to be maintained in the county are outlined below. f. At the expenditure level illustrated in the diagram above, the community will further be involved in monitoring the project in accordance with the PCM principles as outlined in the expected PCM regulations,
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g.
Additional controls will be exercised through the internal audit function which is explained in the section below. Important control measure shown in the chart is the independence of the internal audit as it will require to report to an independent audit committee.
BOX 12.7: COUNTY SUBMISSSIONS ON PLANNING, EXPENDITURE, REVENUE LINKAGES During the county consultations the communities raised various issues which were relevant to the planning, expenditure and revenue linkages, they would want to see implemented at the county level: a) The county governments should consistently develop their medium and long term plans that will guide them in development of their counties. b) There is need to embrace ICT as a tool for planning. c) proposal that county government budgets should provide for a minimum of 70% development expenditure, a maximum of 20% personnel emoluments and a minimum of 10% operation and maintenance. d) The budgeting should be preceded by socio-economic needs assessment, resource mapping and development prioritization. e) Priority should be given to the needs of the people and that grants whether conditional or non-conditional should be project targeted f) Grants allocations should be based on sound fiscal policies and successful past project implementation g) For a county to receive funds or grants from the National Government, or have the National Government guarantee loans, the county should have established an independent county revenue authority as supervisory body for management of such funds. The authority to be composed of community stakeholders elected but not handpicked by the governor.
12.6.2 Budgetary Controls

Planning and budgeting are key tools for financial controls depending on how they are institutionalized in the county governance systems.
Article 225 (2) provides that Parliament shall enact legislation to ensure both expenditure control and transparency in all governments and establish mechanisms to ensure their implementation. The public expressed their wish during the county consultation (see the box) that proper budgetary control mechanisms be implemented to ensure that funds are only used for the purposes they were budgeted for and that the three Es (efficiency, effectiveness and economy) of value for money are achieved. SWAp sector framework provides measures for monitoring and evaluation which constitute one of the budgetary controls options to achieve expenditure controls. Secondly the principle of using SWAp process as a budgetary control measure could be enhanced by incorporating the public participation in monitoring and evaluation through the PCM/PC systems described below. Article 201 (a) provides for openness, accountability and public participation in financial matters.
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12.6.2.1
Public Oversight Role
Community participation (PC) has been used to some extent in the local government sector as a tool for monitoring community based projects developed by the local authorities. However project cycle management (PCM) as a tool for monitoring and evaluation has not been practiced in Kenya. Available literature shows that the combined PCM/CP as a tool for monitoring is very effective in project expenditure controls. However despite the introduction of LASDAP incomplete or irrelevant projects, commonly referred to as white elephants, have been some of the most glaring symptoms of undelivered services in local authorities in the country. For nearly one decade, massive efforts have been expended towards the implementation of priority projects selected through LASDAPs. By 2009 more than Ksh. 35.5 billion had been spent on projects through the disbursement of LATF funds to Local Authorities in the past 10 years, with glaringly lack of service delivery from this fund. Project completion rates in Local Authorities have been dismal despite the enormous amount of taxpayers money spent. Many reasons have been advanced for the failure of LASDAP projects in local authorities. Some of the most commonly cited factors include corruption, lack of goodwill for LASDAP, lack of capacity in terms of skills and competencies and weak institutional structures in Local authorities; delay in the disbursement of LATF; inadequate procurement systems; and bad governance (MoLG 2008). A weak commitment to implement policies combined with poor service delivery characterizes many Local Authorities, undermining their ability to successfully complete projects that can positively impact the lives of poor people within their jurisdictions. Despite all the above weaknesses and the perceived failure of LASDAP, the major problem as was established from the lessons learned through the RPRLGSP was lack of adequate project management systems. The programme proved that if project cycle management (PCM) and community participation (CP) were adequately implemented with a well-designed process of monitoring and evaluation, success rate in project implementation can be very high. PCM is defined as the application of knowledge, skills, tools and techniques to project activities, to meet specific scope, time, cost and quality goals of projects147 (Project Management Institute, 2008). PCM is programmed through a project cycle and this cycle is a logical flow of various project stages or project components broken down into a logical sequence of activities. This phase or stage by stage approach stimulates people to share the same perceptions, speak the same language and use the same tools and formats to design and implement a project. Typically, the project cycle comprises seven standard project stages, phases or activities, arranged in a logical sequence to accomplish a projects goals or objectives, and include:
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Stage 1- policy setting and strategic planning (achieved through the SWAp process sector policy development) Stage 2 - project identification (achieved through the SWAp process of sector planning framework) Stage 3 - appraisal, prioritisation and selection Stage 4 - formulation and planning Stage 5 - contracting and commitment Stage 6 - implementation, monitoring and midterm evaluation Stage 7 - final evaluation
The importance of monitoring OUTSTANDING ISSUES demonstrated by RPRLGSP whereby out of the 65 projects Before finalization of this section a number of issues funded under the PRF, 97% had will require to be considered: their construction completed 1. How is MTEF, SWAp and PCM used in other countries as planning and budgetary control tools and 91%had started operation. This compares with the Local 2. Challenges of MTEF and SWAp operationalization in Authorities Transfer Fund Kenya will need to be fully appreciated (LATF), projects as given by the 3. Need to get Treasury and Ministry of Planning views National Taxpayers Association on capacity to undertake full implementation of the (NTA) of completion rate tools estimated at around 45% and an operation rate of 31% (National Taxpayers Association (NTA) 2009). 12.6.2.2 Recommendations
The following recommendations are proposed to ensure to ensure the planning and budgeting and revenue linkages are entrenched in the policy and legislations to provides adequate financial controls: a. b. The law to be developed as proposed under Article 225 (2) should incorporate budgetary controls operations which will facilitate monitoring and evaluation The law should incorporate PCM/CP as tools for monitoring and evaluation through community participation.
12.6.3
Procurement/ Supply Chain Management
12.6.3.1 Constitutional Provisions and Key Issues in the Current Practice and Law The Public Procurement and Disposal Act, 2005 which came into operation on 1st January, 2007 underplays as its major objective being to establish procedures for procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities to maximise economy and efficiency. To achieve this overall objective the act was expected to promote competition and ensure that
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competitors are treated fairly; to promote the integrity and fairness of those procedures; to increase transparency and accountability in those procedures; and to increase public confidence in those procedures. In addition the Act was expected to be a major catalyst in promotion of local industry and economic development. The Government of Kenya has been implementing the Public Financial Management Reform Programme (PFMR), managed by the Public Financial Management Reform Secretariat in the Ministry of Finance. One of the key pillars of the PFMR is procurement with the objective to promote transparent and accountable procedures in this area within the public sector. As part of this reform effort and through the Public Procurement and Disposal Act 2005, the Directorate of Public Procurement and Public Procurement Oversight Authority (PPOA) has been set up to implement procurement reforms. The new legal and policy framework has continued to reform procurement practices in central and local governments. However, despite these well-designed procurement reforms and regulations, malpractices associated with procurement in the public sector are rampant. Some of the most notable malpractices based on the lessons learned by The Rural Poverty Reduction and Local Government Support Programme (RPRLGSP) include: Unjustified needs and priorities Cost overestimations Manipulation of technical specifications to favour certain bidders Poor adherence to tender and bid procedures Collusion between bidders and LA officials Lack of objective criteria to evaluate bids Conflict of interest (some bidding agencies are owned by councillors or staff) Poor monitoring of the procurement and contracting process
Other problems which have been encountered are delay in procuring of goods and services due to protracted period set in the act. For example it requires a minimum of 90 days to procure an international related services or goods. Even for local items the bottlenecks are many to the extent that a basic procurement can take as long as one month even for items of low value. The Constitution has provided for some amendments to the Procurement and Disposal Act. Article 227 provides that when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective, which emphasizes some of the objectives in the current legislation. The Constitution has provided that an Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following:
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a. categories of preference in the allocation of contracts; b. the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination; c. sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and d. sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.
The new Constitutional provisions will undoubtedly enhance the involvement of the Kenyans in supply of goods and services especially where foreigners have benefited more than the locals. However keys issues like capacity, period of procurement and other bottlenecks will require to be addressed. Legal opinion has been sought from legal practitioners to establish if procurement law can be established for county governments separate from the national procurement law. Article 227 of the constitution provides that Parliament shall enact a law to prescribe a framework within which policies relating to procurement and asset disposal shall be implemented. This means that it is anticipated that the country will have one unifying law to govern procurement and disposal for the two levels of government. In our view this is well acceptable as long as the law provides for a system that is fair, equitable, transparent, competitive and cost-effective. For these principles to be achieved and maintained the following key proposals are recommended for either inclusion in the proposed Act of Parliament or in policy developed to ensure that operations of the procurement is efficient, effective and provides economy, and more so as a tool for financial controls:
a.
The procurement law will require to be amended to incorporate the new constitutional provisions as indicated above; b. The thresholds provided in the First schedule of the Regulations need to be revised periodically to cater for any problems noted in the system c. There will be need for each of the counties to establish procurement departments in line with the constitution and the new legislation d. There is need for capacity building to ensure that there is adequate capacity at the county level
12.6.4
Role of Controller of Budget
Article 228 of the Constitution provides for the creation of the office of the Controller of Budget. The function of the office is to oversee the implementation of the budgets of the national and county governments by authorizing withdrawals from public funds. The Controller of Budget shall ensure that any withdrawal from the public
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fund is authorized by law. The Controller is also required to submit to each house of parliament a report on the implementation of the budget of both the national and county government. The office therefore acts as a form of control in the areas of Budget, Expenditure, Income and Cash.
While the constitution has provided that the controller shall be required to report to both houses of parliament, it is important that a mechanism be created to have the report disseminated to the public in order that they can effectively participate in the affairs of the county and in particular discharge public oversight from an informed position. This promotes the principle of openness and accountability. 12.6.4.1 Issues a. Report to county assembly- there is need to have the controller also report to the county assembly. This will enhance the capacity of the assembly to play its oversight role One of the issues that require to be addressed is how regular and in what amounts the Controller of Budget will be giving the authority for withdrawals of funds by the county governments. There are several options that can be considered: One of the options is to approve withdrawal once at the beginning of the financial year based on the approved budget of the county government Another option is to design a mechanism for regular approval of withdrawals. The periods can either be monthly, quarterly or semi-annual. In this case therefore the county governments will be required to prepare their budget implementation to match the regular flow of funds. This option assumes the amounts approved for withdrawal are of equal instalments Another option is to approve the withdrawals regularly but based on the cash flow projections presented and approved with the budget It is recommended that the Controller of Budget approves withdrawal of funds on a quarterly basis, based on the approved budget and submitted statement of cash flow requirements that is aligned to the budget. The approval should be granted not less than 14 days before the beginning of the period it relates to. A mechanism must be created to quickly resolve such stand offs so as to ensure that service provision by the county governments does not suffer. Also it is recommended that an Arbitration Committee (with representatives from both the county government and the office of the controller of budget) be established that will advise the Controller of Budget on the best way to resolve the dispute. Page | 268
b.
The other aspect for consideration is the requirements that need to be met before the authority can be given for withdrawal of funds. It is important that this information be clearly stipulated in order to ensure that as much as possible objective criteria are used in evaluating a request by a county government for withdrawal of funds. Secondly there is need to develop the modalities or recourse that county government will have in the event they are denied an authority to withdraw while they are convinced that they have met all the conditions required by law. The same applies where the authority is delayed A mechanism must be created to quickly resolve such stand offs so as to ensure that service provision by the county governments does not suffer. Considering the above, it is recommended that approval be given based on the following
a. approved budget by the county assembly b. county appropriation bill c. approvals for withdrawal given quarterly and based on the cash flow as prepared and approved with the budget d. Expenditure to be based on items indicated in the application and which tie in with the budget. e. Report by the county of utilization of the previous approval 12.6.5 Role of Accounting Officer
The office of the Accounting Officer of the County Government is created by Article 226 which states that there shall be an Act of Parliament that shall provide for:
a.
the keeping of financial records and the auditing of accounts of all governments and other public entities, and prescribe other measures for securing efficient and transparent fiscal management; and b. the designation of an accounting officer in every public entity at the national and county level of government.
At sub article (2), it is indicated that the accounting officer of a national public entity is accountable to the National Assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management. That Article therefore, establishes the office of the Accounting Officer provides the functions and clarifies the reporting requirements. The Article further provides under sub article (5) that should a holder of a public office, including a political office, direct or approve the use of public funds contrary to law or instructions, the person will be liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.
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According to The Comptroller & Auditor General (Amendment) Act 1993 of Ireland, the Accounting Officer is defined as the Officer referred to in Section 22 of the Exchequer and Audit Departments Act, 1866 to whom the duty of preparing the Appropriation Accounts of a Department is assigned. The Act indicates the principle role of an Accounting Officer as to safeguard public funds and ensure propriety of expenditure of the funds. The officer should ensure that all relevant financial considerations are taken into account where they concern the preparation and implementation of policy proposals relating to expenditure or income. The officer should also ensure economy and efficiency in the use of resources and design systems, practices and procedures used to evaluate effectiveness. The Local Government: Municipal Finance Management Act, of South Africa, 2003 stated that the Fiduciary duties of accounting officer as indicated below Exercise utmost care to ensure reasonable protection of the assets and records of the entity Act with fidelity, honesty, integrity and in the best interest of the managing the affairs of the entity Disclose all material facts including those reasonable discoverable which in any way may influence the decisions or actions of the parent municipality Seek to prevent any prejudicial interest of the parent Municipality
12.6.5.1 Issue Designation of Accounting Officer One of the issues is to identify who will be designated as the Accounting Officer. Article 226(1)(b) requires the designation of an accounting officer in every public entity. Article 179(1) of the constitution vests the executive authority of the county to the executive committee that is headed by the Governor. It however does not specifically designate any officer as the Accounting Officer. The National Government structures designate the Cabinet Secretary for Finance as the Accounting Officer. The Ireland Act states that the person designated as the Accounting Officer is one to whom the duty of preparing the Appropriation Accounts of a Department is assigned Mirrored against the National Government structures, it is recommended that the County Secretary for Finance be designated as the Accounting Officer for the County Government. Role and responsibility of Accounting Officer The other issue to be addressed is the role and responsibility of the Accounting Officer. Article 226(2) requires the keeping of financial records and the auditing of accounts of all governments and other public entities. There is a provision for national legislation to prescribe other measures for securing efficient and transparent
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fiscal management. It is recommended that the other measures to be prescribed should include: Safeguarding public funds and ensure propriety of expenditure of the funds. ensure economy and efficiency in the use of resources
12.6.6
Oversight Role of the County Assembly
Article 185 provides that the legislative authority of a county is vested in, and exercised by, its county assembly. Sub-article (2) provides that a county assembly may make any laws that are necessary for or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. In sub article (3) the county assembly is specifically given oversight role over the executive and any other county executive organs, while respecting the principle of the separation of powers. Sub article (4) states that a county assembly may receive and approve plans and policies for
a. the management and exploitation of the countys resources; and b. the development and management of its infrastructure and institutions.
Article 224 states that on the basis of the Division of Revenue Bill passed by Parliament under Article 218, each county government shall prepare and adopt its own annual budget and appropriation Bill in the form, and according to the procedure, prescribed in an Act of Parliament. Article 226 (2) provides that the accounting officer of a national public entity is accountable to the National Assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management. 12.6.6.1 Concept of Oversight Oversight can be defined as watchful care. This approach has proven to be an effective technique in holding the executive to account and influence the executive branch. The concept of oversight contains many aspects which include political, administrative, financial, ethical, legal and strategic elements. In the United States of America, congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance. The functions of oversight are:
a.
To detect and prevent abuse, arbitrary behaviour or illegal and unconstitutional conduct on the part of the government and public agencies. At the core of this function is the protection of the rights and liberties of citizens.
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b. To hold the government to account in respect of how the taxpayers money is used. It detects waste within the machinery of government and public agencies. Thus it can improve the efficiency, economy and effectiveness of government operations. c. To ensure that policies announced by government and authorised by Parliament are actually delivered. This function includes monitoring the achievement of goals set by legislation and the governments own programmes. d. To improve the transparency of government operations and enhance public trust in the government, which is itself a condition of effective policy delivery.
12.6.6.2 Structures for Oversight The US Congress's oversight function takes many forms: Committee inquiries and hearings; Formal consultations with and reports from the president; Senate advice and consent for presidential nominations and for treaties; House impeachment proceedings and subsequent Senate trials; House and Senate proceedings under the Twenty-fifth Amendment in the event that the president becomes disabled, or the office of the vice president falls vacant; Informal meetings between legislators and executive officials; Congressional membership on governmental commissions; Studies by congressional committees and support agencies such as the Congressional Budget Office, the General Accounting Office, and the Office of Technology Assessment - all arms of Congress.
The issues to be considered are the functions and organs of oversight. The oversight function of the county assembly shall encompass the following: political, administrative, financial, ethical, legal and strategic elements. The function shall seek to: To detect and prevent abuse To hold the county executive to account in respect of how county revenue is used. To ensure that policies announced by county executive and authorised by county assembly are actually delivered. To improve the transparency of county executive operations and enhance public trust in the county government To evaluate executive performance
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12.6.6.3 County Assembly Oversight Organs The structures /organs that the county assembly shall utilize for oversight will include: County Assembly, Standing committees and Sub-committees Formal consultations with and reports from the county executive Informal meetings between county assembly members and executive officials Secretariat for the County Assembly
County Assembly Secretariat There is need to establish a secretariat for the County Assembly that will be responsible for collecting and collating information and producing reports to help the Assembly in decision making.
12.6.7
County Internal Audit Function
12.6.7.1 Definition Article 225 (2) provides that Parliament shall legislate to ensure that there is both expenditure control and transparency in all governments. Internal auditing is one of the established systems of BOX 12.8: COUNTY VISIT SUBMISSIONS ON providing the required INTERNAL AUDITS financial controls in institutions. According to the What Kenyans said during the consultations: definition provided by the a) Internal audits should be undertaken on quarterly basis and be made public as a basis for Institute of Internal Auditors community monitoring and evaluation. (IIA), Internal Auditing is an b) For a county to receive funds or grants from the independent, objective National Government, or have the National assurance and consulting Government guarantee loans, the county should activity designed to add value have established an independent county revenue and improve an entitys authority as supervisory body for management of operations. It helps an entity such funds. The authority to be composed of accomplish its objectives by community stakeholders elected but not bringing a systematic, handpicked by the governor. disciplined approach to evaluate and improve the effectiveness of risk management, control and governance processes. Based on the county consultations indicated in the box above, it was clear that Kenyans would prefer there to be established an internal audit mechanism to consistently provide an oversight to the usage of public funds.
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12.6.7.2 Historical Background of internal Audit The Local Government Act, CAP 265, do not explicitly provide for the establishment of internal audit functions in Local Authorities, besides in the Third Schedule, which defines the powers, duties and responsibilities of certain officers, including the Chief Financial Officer (the Treasurer). The Schedule states, under clause No. 10, that where an internal audit department is maintained by the local authority, the Treasurer shall be responsible and shall promptly report to the committee responsible for finance any irregularities discovered in the course of such internal audit. The reporting line to the Treasurer did not enable internal audit functions to have the level of independence required for performance of such duties. Consequently, the Minister for Local Government, through Legal Notice Number 83 of 29th May 2000, published in the Kenya Gazette Supplement No. 43 of 30th June 2000, amended clause No. 10 in Part II of the Third Schedule of the Local Government Act to read that every local authority shall establish Internal Audit Unit independent from the Treasurer. The Internal Auditor shall be responsible therefore and shall promptly report to the committee concerned and the Finance Committee any irregularities discovered in the course of the internal audit. 12.6.7.3 Current Operations of Internal Audit Function in Local Authorities The internal audit functions in Local Authorities currently draw their authority from the Treasury Circular No. 16 / 2005, titled Establishment and Operationalization of Audit Committees in the Public Service issued by the PS, Treasury, on 4th October 2005 with an effective date of 31st October 2005; and the Local Authority Financial Management Regulations, 2007, The Treasury Circular states in part that in order to enhance oversight, governance, accountability and transparency in the Public Service, the Government has enforced the establishment and strengthening of audit committees in all ministries, departments, state corporations and local authorities. The audit committees will have the responsibility for independent in-depth review of the framework of internal control and of the internal audit process. The Local Authority Financial Management Regulations, 2007, defines Internal Audit as an independent review function conducted by qualified and appointed individual(s) for the purpose of ensuring compliance with internal controls, laws and regulations, and the general assessment of performance across the local authority. The internal auditor is defined to mean a person charged with the independent review, appraisal, inspection and monitoring function established by the Council, pursuant to the Act, to examine and evaluate the whole system of internal controls established by the Council, including the operational, financial and accounting
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activities of the Council. Therefore the regulations provide the following functions for the internal audit functions:
a.
The Council shall establish an Internal Audit department, reporting to the Audit Committee as an independent, non-operational unit of the local authority, separate and apart from the Treasurers department. b. The Council shall cause to be employed as head of the Internal Audit department an Internal Auditor who meets the qualifications and requirements set out in the scheme of service applicable to local authority staff from time to time, and who shall carry out internal audits evaluating the whole system of controls, financial and otherwise, established by the Council in order to provide reasonable assurance of the local authoritys operational effectiveness and efficiency, compliance with laws and regulations, the safeguarding of assets against unauthorised use or disposition and the maintenance of proper accounting records, and reliability of financial information. c. The duties of the Internal Auditor shall be: Conduct regular and continuous internal audits of the financial transactions of the local authority and report any irregularities and/or inconsistencies to the Audit Committee, with copies to the Clerk, the Treasurer and the heads of department; Provide the necessary reports and support to Ministry of Local Government Inspectors, to the Controller and Auditor-General, and to any other outside auditors, with the concurrence of the Clerk, in regard to other external audits and investigations of the local authority; and Have unrestricted access to all establishments and financial records of the Council, and shall be entitled to require such explanations, as he/she considers necessary to satisfy himself/herself of the correctness of any matter under examination.
12.6.7.4 Revised Treasury Guidelines on Roles and Responsibilities of Internal Auditors The PS, Treasury has recently issued Circular No. 4/08, Strengthening of Internal Audit Function in Government Service. The broad framework of the duties and responsibilities of internal auditors set by this circular include:
a.
Conduct systems audits to provide reasonable assurance that key Local Authority operating systems such as cash management, procurement, transport, revenue/AIA, assets management etc. are functioning effectively and that the Governments strategic and operational objectives are being met consistently, efficiently and in a cost-effective manner.
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b. Conduct Risk Based Audits (RBA) to provide reasonable assurance that risk management processes and structures put in place by management are functioning effectively and recommending appropriate risks mitigation measures where necessary. c. Provide consulting services to Local Authorities in developing appropriate risk management, control and governance frameworks and enhance the level of assurance provided to management. d. Conduct Value for Money (VFM)/performance audits geared towards economic, effective and efficient use of public resources and sound management of public expenditure with the view to enhancing value for tax payers money. e. Conduct IT supported audits, including payroll audits, with the view to enhancing internal controls in computerized environments. f. Review, analyse, and evaluate budgetary allocation and periodical budgetary performance reports submitted to Treasury by line Ministries to ensure that the allocation and expenditure patterns are in line with the ministrys strategic objectives and that there is evidence of prudent and effective utilization of budgetary resources. g. Review and evaluate Annual Appropriation Accounts, fund Accounts and Statements of Assets & Liabilities before they are submitted to Controller and Auditor General by Accounting Officers. h. Verify and analyse periodical financial returns that are required to be submitted to the Ministry of Local Government and/or Treasury by Local Authorities from time to time [such as pending bills returns, expenditure returns, imprest returns, revenue and AIA returns, staff returns and vehicle returns]. i. Review and evaluate documents used in initiating commitments such as AIEs, LPAs, LSOs and contract agreements etc. j. Provide secretarial support to the Local Authority Audit Committee. k. Carry out investigations/special audits on irregularities identified or reported and report on any wastage of public funds resulting from decisions which may not have been well-planned; decisions made without being cost conscious; and /or general misuse or misappropriation of public resources and other Local Authority assets. l. Conduct periodic Public Expenditure Tracking Surveys (PETS) on specific programmes in different sectors to ascertain economic, effective and efficient utilization of resources and overall quality of public expenditure management. m. Tracking of grants and other budgetary resources issued by the exchequer to the Local Authority to ensure that the grants are utilized for intended purposes.
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n. Carry out forensic audit where required and appropriate. o. Follow up outstanding audit issues to confirm corrective/remedial action is taken on reported audit findings and recommendations.
12.6.7.5 International Practices on Internal Audit Function Code of Practice for Internal Audit in Local Government in United Kingdom148sets out four main principles to be observed for internal auditors:
a.
Integrity - All internal auditors should demonstrate integrity in all aspects of their work. At all times the integrity and conduct of each internal auditor must be above reproach. The relationship with colleagues, internal clients and external contacts should be one of honesty, truthfulness and fairness. This establishes an environment of trust and confidence that provides the basis for reliance on all activities carried out by individual auditors and the internal audit team. b. Objectivity - Objectivity is a state of mind that has regard to all considerations relevant to the activity or process being examined without being unduly influenced by personal interest or the views of others. The internal auditor must be impartial in discharging all responsibilities; bias, prejudice or undue influence must not be allowed to limit or override objectivity. Internal auditors must act objective and be perceived as doing so, and must avoid any conflict of interest arising either from professional or personal relationships or from pecuniary or other interests in an organisation or activity subject to audit; resist undue influences that could restrict or modify the scope or conduct of the work or significantly affect the content or judgments in the internal audit report. c. Competence - Internal auditors should apply knowledge, skills and experience to their work, seeking additional advice and support where necessary to ensure work is carried out competently. They should obtain sufficient knowledge of the organisations aims, objectives, risks and governance arrangements; the purpose, risks and issues of the service area; the scope of each audit assignment; relevant legislation and other regulatory arrangements that relate to the audit. d. Confidentiality - Internal auditors must safeguard the information they receive in carrying out their duties. Any information gained in the course of audit work should remain confidential, without limiting or preventing Internal Audit from reporting within the organisation as appropriate. There must not be any unauthorised disclosure of information unless there CIPFA also provides that for internal audit services to work properly in the public sector, independent audit committees must be put in place. The purpose of an audit committee is:
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a. b.
c.
to provide independent assurance of the adequacy of the risk management framework and the associated control environment to provide independent scrutiny of the authoritys financial and non-financial performance to the extent that it affects the authoritys exposure to risk and weakens the control environment to oversee the financial reporting process.
The South Africa Municipal Financial Management Act 2004 provides that each municipal entity must have an internal audit unit. The responsibilities for the unit are: a. b. c. prepare a risk-based audit plan and an internal audit program for each financial year; advise the accounting officer and report to the audit committee on the financial year; implementation of the internal audit plan and matters relating to internal audit, internal controls, accounting procedures and practices, risk and risk management, performance management, loss control, and compliance with this Act, the annual Division of Revenue Act and any other applicable legislation.
The Act also provides that each Municipal entity must set up an audit committee. The Act provides that an audit committee is an independent advisory body. Its the responsibility in advising the municipal council, the political office-bearers, the accounting officer and the management staff of the municipality, on matters relating to internal financial control and internal audits; risk management; accounting policies; the adequacy, reliability and accuracy of financial reporting; performance management; and effective governance. The members of an audit committee must be appointed by the council of the municipality or, in the case of a municipal entity, by the council of the parent municipality. One of the members, who is not in the employ of the municipality or municipal entity, must be appointed as the chairperson of the committee. No councillor may be a member of the audit committee. 12.6.7.6 Recommendations From the above analysis it is clear that internal audit function is major tool for financial controls which could be employed by the county governments. For many years the internal control function has not been operated in accordance with the internationally recommended practices, and hence the many problems which have been the subject of the financial mismanagement in local authorities in Kenya and in the public sector generally. Hence it is imperative that to achieve good governance and controls of the financial affairs of the county government there will be need not
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only to implement good internal control practices but also to anchor it appropriately in the policy and legislative framework. The following recommendations are therefore proposed to ensure that the internal audit function is adequately implemented as one of the tools for the control of the counties financial management systems: a. b. Each county will be required to establish an independent internal audit department Each county will be required to establish an independent internal audit committee with its members drawn from the professionals and civil society. The members will have been vetted to be compliant with Chapter 6 of the Constitution. The Chairman besides having been vetted for compliance with Chapter 6 of the constitution will be a professional accountant of good standing with the Institute of Certified Public accountants of Kenya. The internal auditor will be expected to undertake his/her audit in accordance with the standards of the Institute of Internal Auditors and will report to the Internal Audit Committee The Audit committee will regularly table its report to the Committee of the County Assembly responsible for Public Accountability with copies to the Governor and the Executive responsible for finance in the county.
c.
d.
12.7
12.7.1
FINANCIAL REPORTING AND AUDIT

County Financial Accounting and Reporting
One of the major principles of Public Finance as provided in Article 201(a) is including public participation in financial matters. The public may only participate effectively in the financial matters of a county government if they have the necessary and timely information. The goal of a PFM system is to support the achievement of fiscal discipline, strategic & efficient allocation and use of funds, value for money and probity in the use of public funds. ICT has provided a platform in which, considering todays computerized, interconnected and global environment, financial information can be provided conveniently in terms of speed and spread (reach). This has ensured that the lag between demand and supply of information is minimized. 12.7.1.1 Integrated Financial Management Information System (IFMIS) IFMIS is an application that combines budget preparation, budget execution, accounting, financial management and reporting activities on a single integrated platform.
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IFMIS enhances transparency and accountability through reliable financial reporting, informed decision making and reliable planning for national growth in Public Financial Management. It increases efficiency by ensuring less manual work, less book-keeping more analysis and reporting, timely production of public accounts, reliable and timely management reports for informed decision-making, accountability will rest with budget holders, ease of access to financial information, internal controls will be enforced by the system and no duplication of data entry. It further ensures commitment control that will assist MDAs manage their budgets effectively and books of accounts are updated in real time. The National Government should develop an integrated financial management information system that will be applicable to both levels of Government. This will facilitate the flow of intergovernmental fiscal transfers since the two levels should have a system that is compatible and facilitates operations between the two governments financial systems. This will be in line with Article 190(1) which states that there shall be legislation ensure that county governments have adequate support to enable them to perform their functions. Sub article (2) indicates that County governments shall operate financial management systems that comply with any requirements prescribed by national legislation. In sub article (3) Parliament shall, by legislation, provide for intervention byte national government if a county government(a) is unable to perform its functions; or(b) does not operate a financial management system that complies with the requirements prescribed by national legislation. Sub article (4) Legislation under clause (3) may, in particular, authorise the national government (a) to take appropriate steps to ensure that the county governments functions are performed and that it operates a financial management system that complies with the prescribed requirements; and(b) if necessary, to assume responsibility for the relevant functions. 12.7.1.2 Reporting In relation to financial reporting, public entities have now adopted The International Public Sector Accounting Standards (IPSAS). IPSAS are a set of accounting standards issued by the IPSAS Board for use by public sector entities around the world in the preparation of financial statements. These standards are based on International Financial Reporting Standards (IFRS) issued by the International Accounting Standards Board (IASB).The standards focus on the accounting and financial reporting needs of national, regional and local governments, related governmental agencies, and the constituencies they serve. Currently all Local Authorities are required to prepare and report their accounts using IPSAS. Several international organizations have adopted IPSAS which include
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OECD, United Nations System, Commonwealth, Interpol. It is should therefore be a requirement that all county governments should report their accounts using IPSAS Article 185 provides that the legislative authority of a county is vested in, and exercised by, its county assembly. In sub article (3) the county assembly is specifically given oversight role over the executive and any other county executive organs, while respecting the principle of the separation of powers. While there are several ways in which the assembly may exercise this role, one critical method is by receiving and evaluating reports on various aspects of the county executive management. The issue to consider is the type of reports and the regularity in which they need to be submitted to the assembly by the executive. In some occasions the assembly may generate its own reports particularly in areas where the report by the executive is not satisfactory. Further the principles of finance as enumerated in Article 201 states that there shall be openness and accountability, including public participation in financial matters. The participation can only be effective if the public are participating from an informed position. This means that necessary and timely information have to be disseminated to the public. The information will be in form of reports. The issue here again is what type of required by the public and how often should the reports be given. The preparation of periodic reports: Encourages Governments to undertake a comprehensive review of national legislation, policies and programmes on development Ensures that each State regularly monitors the realization of the planning goals and budgetary objectives Encourages Governments to set priorities and indicators against which they can judge performance; Provides Governments with a benchmark against which subsequent reports may be compared; Provides information and opportunity for public to scrutinize and discuss Governments performance Highlights difficulties in implementation that might otherwise have gone unnoticed.
It is therefore recommended as follows Reports to the County Assembly will include the following Financial reports (including budget implementation, debt position, cash position) Project implementation report
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Sector reports Annual reports of activities and performance of the county Annual Financial statements Adherence to county plan
Frequency of reporting should be quarterly or such other period as a particular county may determine depending on its circumstances except for the last three which shall be annual. OUTSTANDING ISSUES ON Reports to the public Project cycle management reports Financial reports Obligations of the public to the county government e.g. paying rates Laws passed by the county government
REPORTING AND AUDIT AND PUBLIC ACCOUNTABILITY:
Shall we have peoples assembly as proposed during the public hearings? Where and how will the governor present the accounts to the public?
Frequency of reporting should be quarterly or such other period as a particular county may determine depending on its circumstances except for the last which shall be as and when the laws are passed. Other reports to be given on an annual basis are: Annual reports of activities and performance of the county Annual Financial statements
12.7.2
Role of Auditor General
Article 229 (1) provides for the establishment of the Office of the Auditor-General who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President. Sub article (4) states that within six months after the end of each financial year, the Auditor-General shall audit and report, in respect of that financial year, on a. b. c. d. e. the accounts of the national and county governments; the accounts of all funds and authorities of the national and county governments; the accounts of all courts; the accounts of every commission and independent office established by this Constitution; the accounts of the National Assembly, the Senate and the county assemblies;
The major issue for consideration is the capacity of the office of the Auditor General to carry out its mandate as outlined in the constitution. Two aspects need to be
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considered, qualitative and quantitative capacity. Since the mandate covers all public bodies, there is need to ensure adequate numbers of professionals complemented with requisite resources to cover the mandate. In order that the office carries out its mandate effectively, it should be decentralized to the county level, while ensuring adequate capacity at the level.
12.8
12.8.1
FINANCING COUNTY INFRASTRUCTURE AND INVESTMENT

Role of Counties in Infrastructure Development and Delivery
County governments have been assigned the central role in the development and delivery of infrastructure in the new constitution. Counties are mandated to plan, develop, manage and maintain a broad range of infrastructure within their jurisdictions. These include agriculture related facilities such as cattle dips, livestock sale yards, county abattoirs, health facilities, refuse dumps, cinemas, libraries, museums, county roads, ferries and harbours, markets, housing, village polytechnics, storm water drainage, water and sanitation installations, fire stations, among others. The National Government is, among other roles, charged with the responsibility for national economic policy and planning, national standards, regulation, national public works, national statistics, immigration and citizenship, macroeconomic management, foreign affairs, defence and natural resources (Schedule 4). Some aspects of social and economic infrastructure are also shared in the sense that the constitution has assigned both levels of government corresponding responsibility and accountability for the delivery of services at different levels within the same sector. Examples of such concurrent functions for which infrastructural facilities will require to be developed by each level of government include: education, transport, health facilities, public works, public investment, statistics, disaster management, energy regulation, environment and natural resources, forestry, tourism, betting, casinos and other forms etc. The functional allocation and accountability for infrastructure delivery represents a major policy shift compared to the situation prior to the enactment of the new constitution. The infrastructure development responsibilities of counties include: county roads, storm water drains, water supply, sewerage, solid waste dumps, hazardous waste disposal facilities, security and street lighting, telecommunications utilities, ferries and harbours, public road transport, markets, county abattoirs and slaughter houses, livestock sale yards, county assembly halls, county offices and buildings, fire stations, county hospitals, health centres and dispensaries, cemeteries, conference and social halls, cinemas, museums, electricity and gas reticulation infrastructure, libraries, county stadia and parks, vehicle parking yards and silos, housing development, village polytechnics, home craft centres, nursery schools and child care facilities.
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12.8.2
Infrastructure Gaps and Equitable Development in Counties
County infrastructural facilities and installations are essential for supporting productivity within and across counties and the wider national economy. Development of county infrastructure will require large initial capital investment but the economies of scale tend to be significant. In addition, counties, will through their infrastructure projects, be pivotal in the delivery of the social and economic rights specified in the Bill of Rights (Article 43). Given the critical role of counties in the delivery of the social and economic rights, it will be important for the new leadership of each county to establish the scope, extent and quality of infrastructure within their respective jurisdictions. Information on the status of infrastructure in all the county governments would be consolidated and an appropriate data bank established at the National Government level. The exercise will help in establishing the infrastructure gaps in counties and assist them in the prioritization of their capital investment programmes. The infrastructure data would then be used for national, inter-county and county planning. The data will also inform the equitable share of national revenues and the allocation of conditional and unconditional grants.
12.8.3
Approaches for the Development and Financing of County Infrastructure
County governments can opt to directly contract out work relating to the development their infrastructure. They can also collaborate with the national government, other counties, state organs, private sector and non-state agencies in the fulfilment of their infrastructure delivery mandates (Article 185 (4); Article 227 (1) Schedule 4-Part 2). Currently, various government ministries and state corporations are involved in the implementation of a broad range of infrastructure projects relating to the functions allocated to devolved governments in the constitution. Counties can also draw lessons from infrastructure and service delivery approaches currently being practiced by the current local authorities. Existing local authorities have, for example, established water and sewerage companies that are wholly owned by respective local authorities and operate on commercial lines under autonomous boards and managements. Some local authorities have also commercialized or privatized some services such as refuse collection, security and street lighting, office cleaning etc. The Nairobi Water and Sewerage Company Limited more than quadrupled the monthly revenue collections from water sales as a result of the improved management and financial control systems that were introduced following the privatization of the service. The concessioning of security and street lighting within the Central Business District (CBD) and from JKIA to Gigiri to Adopt-A-Light under contractual arrangements involving concessions on billboard advertising by
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corporate entities helped in keeping the streets and adjacent areas well lit and relatively safe. There are four broad approaches for the joint development and financing of County Infrastructure those individual counties may choose to adopt. These include: a. Joint Authorities and Joint Committees: these can be set up as provided for under Article 189 (2) to facilitate cooperation of the national government and county governments or between two or more counties for the performance of the functions of county governments including the provision of county infrastructure and services. County Government Corporations and Companies: county governments can set up their own county-level corporations (e.g. the current water and sewerage companies that are wholly owned by local authorities). State Corporations: county governments can alsocontract state corporations falling under the National Government for the latter to provide both finance and management of county infrastructural projects. Public-private partnerships: Infrastructure PPPs are contractual collaborative arrangements between public sector organizations/county governments and private sector institutions for the joint and collaborative delivery of capital projects.
b.
c.
d.
The Public Procurement and Disposal (PPPs) Regulations (2009) of Kenya identifies five types of partnerships that, in the meantime, can also be adopted for the delivery of county infrastructure. These are: management contracts (MCs). MCs are short term PPP arrangements under which the public sector procuring entity entrusts private companies with operating infrastructure or providing management services according to contract for a period not exceeding five years. The public sector retains ownership and control of the facilities, capital assets and properties. ii. Leases: when public and private sectors engage in a lease arrangement, the private party pays rent to the procurement entity and manages, operates and maintains the facility in exchange of fees or charges from consumers in exchange of the services for a specified period of time iii. Concessions: concessions, just like BOOT agreements (below) are long term PPP arrangements. The contract covers a period not exceeding 30 years under which the private party maintains, rehabilitates upgrades and enhances the facility under consideration in the course of the concession. iv. Build-Own-Operate Transfer (BOOT): Build-Own-Operate (BOO) schemes: BOO contracts are long term PPP contracts in which private companies invest, build, operate and own infrastructure until capital is recovered through fees under a concession from the county, and the facility in question is then transferred back to the county government. i.
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v.
Build-Own-Operate (BOO): contracts where the private sector invests, builds and permanently owns asset under contractual terms that secure public interest under county supervision.
Other types of PPPs that county governments can utilize are: Design-BuildMaintenance (DBM); Design-Build-Operate (DBO); Build-Lease-Operate-Transfer (BLOT); Design-Build-Transfer-Operate (DBTO); Design-Build-Finance-Operate (DBFO) also called the Private Finance Initiative (PFI) in Britain; and PurchaseUpgrade-Operate (PUO). Figure 12.6: County Infrastructure Financing and Development
12.8.4
County Governments Development Bank of Kenya (CGDBK)
The Fourth Schedule to the constitution defines the functions that are to be undertaken by the two levels of government. Some of the functions allocated to the county government will require the development of the requisite infrastructure in order that the required service may be provided. Some of the envisaged infrastructure will require huge capital outlays and it will not therefore be possible to finance the same from the normal annual budgetary allocations. The constitution has provided for borrowing by the county governments albeit with national government guarantees. However the source of the funds is not elaborated and it can therefore be assumed that the existing sources such as commercial institutions, capital market, multilateral lenders and foreign governments may be targeted to provide the loans. Page | 286
Considering the importance of the county governments and the pivotal role they will play in catalysing local economic development, it would be appropriate to establish a sector specific financial institution that will cater for the long term funding needs of the county governments. This will facilitate more effective access to the loan facility and therefore improve and hasten the project cycle management that will result to faster completion rates for projects. The concept has precedents in the agriculture sector where the Agricultural Finance Corporation was established. There are also the Industrial Development Bank, The Kenya Tourism Development Corporation and the National Housing Corporation, all which focus on a sector and thus become partners in the development of the sector. Though the County Governments are strictly not a sector, the concept of specialized lending can be adopted and a Financial Institution established to cater for their needs. The concept is not entirely new as the Local Government Loans Authority (LGLA) was established vide Local Government Loans Authority Act (Cap 270 of LK). The Authority was meant to provide funding for long term infrastructural need of the Local Authorities. The Authority is however defunct after experiencing high rates from recipients of the loans default. Proposals have been made for the revival of the defunct Local Government Loans Authority (LGLA) which was established as a revolving fund mandated to extend and administer cheap loans to the local authority in the country. LGLA relied mainly on government subventions as well as on external loans that were guaranteed loans. Most of the loans were utilized by local authorities to develop county social infrastructure such as town halls, municipal offices, markets, slaughter houses etc. The authority was managed by civil servants serving in the ministrys departments and administered through a committee chaired by the Minister for Local Government. Loan decisions and repayments were politicized to the point where most local authorities stopped the servicing of their loan obligations. Efforts to restructure the authority into a Municipal Development Bank in the 1980s were not followed through by successive ministerial administrations. A County Governments Development Bank of Kenya that is managed professionally could be established to facilitate the development of county infrastructure. The Authority can also be the conduit through which guaranteed loans and conditional grants for the development of infrastructure could be channelled to county governments. The authority will also be required to administer the loans including disbursements and repayments. One other task for the Authority would be to assist the county governments to eventually be capable of accessing the capital market for long term financing. This would mean ensuring the county governments are financially structured and are managed in a way that gives sufficient confidence to the
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market for it to lend them funds. The Task Force will be firming up the idea further after studying similar organizations in other country jurisdictions. The management and corporate governance framework for the new county infrastructure development facilitation institution must however be designed and effected in a manner that avoids the pitfalls encountered by LGLA. Table 12.2: County Infrastructure facilities that can be commercialized or developed through public-private partnerships
# INFRASTRUCTURE CATEGORY TYPES OF INFRASTRUCTURE roads; offices and housing; gas and electricity reticulation; water and sewerage; refuse yards and dumps; streets and security lighting; ferries and harbours; cemeteries, funeral parlours and crematoria; fire stations, vehicles, plant and equipment museums; sports and cultural facilities; county parks and beaches libraries; pre-primary education; village polytechnics;, home-craft centres and; childcare facilities. dispensaries, clinics; ambulance service and; pharmacies markets; livestock sale yards; cooperative buildings and facilities; fish ponds; abattoirs 1. Physical infrastructure
2. Entertainment and recreational facilities 3. Educational facilities
4. Health amenities
5. Commercial centres 6. Agricultural Facilities
Source: Constitution of Kenya, Schedule 4-Part 2
12.8.5
Efficiency, Sufficiency and Optimization of County Infrastructure
The set of values and principles of governance provided in the following articles of the constitution should be judiciously applied to promote and ensure sufficiency, efficiency and optimization of scarce public resources in the development of county infrastructure: a. b. c. d. e. f. the national values and principles for governance outlined in Article 10; the values and principles of the public service articulated under Article 232(1) the principles of public finance (Article 201) the objects of devolution(Article 174); the principles devolved government (Article 175); and the guidelines on procurement of public goods and services (Article 227). Page | 288
12.9
12.9.1
INSTITUTIONAL AND TRANSITIONAL ISSUES

Institutions and Funding of Transitional Arrangements
The Commission on Revenue Allocation and the Senate play key roles in intergovernmental fiscal transfers. They act as counterbalancing forces against the national executive and the national assembly, respectively in the sharing of national revenues. The role of the Commission on Revenue Allocation is largely advisory. It makes recommendations to the Senate, the National Assembly, the national executive, the county assemblies and the county executives. This role is complemented by that of the Senate (Article 96(3)) in the determination of the allocation of revenues among the counties. The Senate also monitors the utilisation of revenue allocated to counties; and recommends a new formula for revenue sharing once every five years. To be effective and credible in playing their role, both institutions must have sufficient capacities. There has been a debate as to whether budgetary resources should be allocated to the counties before the counties and the Senate are in place. The argument arises especially with regard to the 2012/2013 budget which will have been passed before the next elections. It is arguable that it could be possible to set aside money in the 2011/12 budget to support transitional requirements for county governments. The budget could be managed by a statutory body that would be in charge of the transition or at worst by a designated ministry with sufficient oversight by CIC and parliament. It is without doubt, however that counties will require resources to operate immediately after the next elections. It is recommended CRA is in place it should design and recommend a formula for revenue allocation that could be used in the first instance to allocate revenues to counties pending the election of senators. This initial budget could be approved by the National Assembly, with a proviso for the formula to be reviewed by the Senate before the next budget.
12.9.2
Framework for the Audit and Re-Allocation of Existing Infrastructure Assets
Experience locally and elsewhere has shown that public infrastructure assets and facilities get vandalized, disappear or are simply illegally transferred for private ownership particularly during periods of transition before, during or soon after general elections and regime changes. Moreover, the envisaged transition is unique in that unlike the past where local government changes were only at the political level the establishment of counties would entail changes at executive officers ranks. This underscores the need to take proactive measures to stem the possibility of the same happening prior to the assumption of power by county governments that will be elected next year.
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The TFDG Interim Report should therefore recommend the immediate establishment of an Ad Commission that will be tasked to carry out infrastructure audit, reallocation and the transfer of infrastructure facilities, land, vehicles, plant, equipment, tools to either to the National Government, county governments, constitutional commissions and offices etc. Persons to serve in the proposed commission should be vetted to ensure they are Chapter Six (Leadership and Integrity) compliant. This recommendation recognizes the study on assets and liabilities of local authorities (and national government departments in counties) for which the TFDG has developed terms of reference is may not be completed before the expiry of the Task Forces tenure. It also recognizes that the study in question will be limited to about 15 local authorities, and on completion, its recommendations will be limited to policy aspects. Hence, the critical work involving the actual audit of the assets of all local authorities and those of government departments located at county level will still require to be undertaken. In the meantime, the government, through the Office of the Head of Public Service should issue a circular to all accounting officers directing them to in turn advise their field offices to compile and sent returns on the assets in their units located in every county under their held by each unit. The accounting officer of the ministry responsible for local authorities should issue a corresponding circular to all local authorities. No assets should be disposed either from the effect date of the circular or some other specified date. Accounting officers would be required to oversee the exercise in their respective ministries and to assume accountability for the same. Timelines and sanctions for deliberate asset omissions and/or providing inaccurate data should be specified in the circular.
12.10 CONCLUSIONS
12.10.1 Summary
Fiscal decentralization is critical in a devolved system of government, where the financial aspects are devolved to county Governments and the spending responsibilities and revenue sources are divided between levels of government. The key element of the conceptual framework of the fiscal decentralization is the interrelationship between the two governments and how the functions and financial resources are distributed and managed. The sources of the county government financial resources are provided by the constitution as revenues from both inter-governmental transfers and own sources; grants from donors and loans guaranteed by the national government. The intergovernmental sharing of national revenues consists of the block revenues based on the vertical and horizontal distribution between the national government and the
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county governments, and between the county governments respectively; conditional and unconditional grants; and equalization grants. County governments may raise their own revenues by imposing taxes and charging fees for services in a way that does not prejudice national interests. Counties should also explore other possible sources which may need to be legalized. In levying taxes, County governments should conform to the constitution and also adhere to the key principles of taxation on equity; simplicity, transparency and certainty; effectiveness; efficiency and cost; flexibility; enforceability; exportability; and burden equity. Besides the donor grants (as the other source of financial resources to the counties), which should conform to the national policy on donor funding, the other major source of financial resources to the county governments will be internal and external borrowing. As the constitution requires that all loans to the county governments be guaranteed by the national government, provision of these guarantees should be efficient, transparent and accountable. However it is important to note that County Governments may borrow only with the approval of their respective county assemblies and if the national government guarantees the loan (Article 212). Assessment and approval of loan guarantees for Counties must also be based on the national values and principles of public service, leadership and integrity. The objectives of public debt management in counties which include promotion of transparency and the modernization of the statistical information, effeciency and environment of public debt sustainability should be given due consideration in the process of guaranteeing loans. For the county governments to manage their financial resources articulately planning and budgets are cardinal to the whole process of public finance management. The county and national integrated development plans will require to be linked, with the county development plans based on the national integrated development plans. Similarly budgets will also be linked both at the county and national level. MTEF is the current tool being used at the national level to combine the planning and budgeting. Therefore there will be need to institutionalize MTEF, SWAp and PCM/CP as tools for planning, budgeting and budgetary controls for the counties. Incorporation of the Project Cycle Management (PCM) and Community Participation (CP) tools in the process of planning and budgeting and later in monitoring and evaluation will be in tandem with the principles of public finance as provided in the constitution Article 201. Procurement or Supply Chain Management system is an important financial control measure which will require to be enhanced also at the county government. Under the on-going Public Financial Management Reform Programme (PFMR), the legal and policy framework of the procurement process has promoted transparent and accountable procedures and practices in central and local governments. However, Page | 291
misconduct associated with procurement in the public sector are still widespread and delay in procuring of goods and services due to protracted period set in the act. Hence there will be need to review the current procurement Act, one to incorporate the provisions of Article 225 of the constitution and secondly to amend various other articles which would make it an effective tool of financial controls in both governments. The other major ingredient of financial controls which will need to be institutionalized in the county governments is the internal audit function. International practice on internal audit sets out four main principles to be observed by internal auditors which include integrity, objectivity, competence and confidentiality. To achieve independence and ensure that the internal audit function meet the above principles, the internal auditor will report directly to an independent audit committees constituted of professionals and civil society. Financial transparency cannot be achieved unless there are regular and audited accounts maintained by the governments. It is also important that the maintenance of the accounts and financial records will be efficient and compliant with the International Public Sector Accounting Standards (IPSAS). Further the systems maintained by both levels of governments will need to read into each other for ease of inter-governmental relations and transfers. Therefore the integrated financial management information systems (IFMIS) being implemented at the national level will also need to be implemented in the county governments. However to avoid the current systems operational systems there is need to ensure that the IFMIS is adequately tested and operational before it is implemented in the counties. County governments are responsible for the development and delivery of infrastructure in the constitution. Counties are mandated to plan, develop, manage and maintain a broad range of infrastructure within their jurisdictions. The constitution has assigned both levels of government some aspects of social and economic infrastructure and the corresponding responsibility and accountability for the delivery of services at different levels within the same sector. This represents a major policy shift compared to the situation prior to the enactment of the constitution 2010. There are four broad approaches for the joint development and financing of County Infrastructure which counties may choose to adopt. These include, Joint Authorities and Joint Committees, County Government Corporations and Companies, State Corporations, and through Public-private partnerships.
12.10.2 Conclusion
The following conclusions and recommendations are made for the public financial and management to be adequately devolved to the county levels:
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1.
2.
3.
4. 5.
6.
7. 8.
It is recommended that a separate legislation on county government public finance management be distinct but have reference to the national public finance management organic law. The reasons for this are to have consistence with Article 6 of the CoK 2010 that the governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation. Legislation on sharing of revenue both vertical and horizontal sharing, and also how the county government will share revenues with further decentralised units at the county level A new legislation on County taxation be developed to cover rating, valuation for rating, the criteria, steps and procedures for tax or fees calculation, tax collection procedures and should also specify the sanctions for non-compliance. Legislation to empower Revenue collection agent e.g. KRA to collect taxes Legislation on the Institutional Framework to coordinate borrowing and grants. This means the current legislations the Internal Loans Act and External Loans Act will be combined. The policy and procedure manual for incorporating the PCM/CP as both tools for planning/budgeting and monitoring be developed. For the policies to be effective they should be embedded in the County Public Finance management Act. Amendment of the Public Procurement Act to incorporate issues raised in the chapter A new policy and legislation to institutionalize internal audit function at both levels of government be developed.
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13
13.1
THE TRANSITION ROAD MAP

INTRODUCTION
Kenyas transition towards a democratic constitutional dispensation dates back to December 1991 when renewed popular quest for reforms and agitation for the rebirth of a new Republic began in earnest. In that year, Section 2 A of the old constitution was repealed. This rubric of the law had made Kenya a de jure one party state, had hitherto prohibited formation of other political parties to compete for power with the then ruling party. The Constitution of Kenya, 2010 on 27th August 2010 therefore marked a cataclysmic milestone in Kenyas constitutional evolution and development. It brought to a pinnacle the long enduring constitution making process after Kenyans validated the (PCK) at a National Referendum on 4th August 2010. The process thus far has been a costly investment. Lives have been lost, civil liberties and fundamental freedoms curtailed, property destroyed, colossal sums of public resources wasted and opportunities for real social and economic advancement lost. The Constitution of Kenya 2010 has set an irreversible transition path by the people, towards a long desired democratic political dispensation; whose core pillar is devolved democratic governance institutions and systems. This is a major departure from what Kenyans have come to know and believe in since independence. The Constitution restores the sovereign power of the people of Kenya under Chapter One Sovereignty of the People and Supremacy of the Constitution. Also resurrected is the collective and individual self-esteem of Kenyans and Kenya. The social contract theory is also given prominence in the Preamble: The greatest challenge to Kenyas inevitable transition into the new democratic constitutional dispensation is the lingering national mindset which has been socialized over the years to institutionalize centrist despotic governance as a way of life. The Constitution of Kenya 2010 recognizes this reality, especially the culture shock its implementation must visit upon the political elite who over time, applied social engineering strategies designed to exclude the vast majority of Kenyans from the mainstream of public affairs. It is this recognition which inform the Constitutions choice of phased time-bound self-execution. Comparative analyses of democratic constitutional transitions indicate that Kenyas is closer to that of Hungary. In 1989, Hungary adopted a new constitutional order through amendment. Although Hungary chose to transit through constitutional amendment, while Kenya took the popular route by way of referendum, the circumstances under which both countries exited before transiting are similar. Hungary underwent its transition from authoritarian rule to democracy and rule of law. Like in the Kenyan case, the Hungarian transition is referred to as a
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"constitutional revolution," which means the choice of law instead of power, not only for the future political system, but also as the basis for the mode of transition. In his paper Constitutional Transition and Legal Continuity, Connecticut Journal of International Law, spring, 1993,Peter Paczolay points to the importance of the typology of transition as determining whether a given transition is a continuity and discontinuity. The manner in which Kenyas transition is managed will therefore determine whether the legitimacy of both the national and county governments is based on the enduring aspects of the expired constitution or the Constitution of Kenya 2010. The transition into devolved dispensation has far reaching implications to implementation of the Constitution of Kenya in the spheres of governance, human resource, functional distribution, service delivery, requisite policy and facilitative legislative framework. Figure 13.1: Conceptualizing the Transition Process Establishment of County Governments to Full
13.2
ORGANIZING THE TRANSITION ROAD MAP
As illustrated in Figure 13.1 the Task Force on Devolved Government has conceptualized the Transition Road Map in three phases relating to key issues of
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finance, human resources, office facilities, land and other assets, liabilities, and civic education. This framework identifies the key issues that must be addressed to ensure proper establishment and working of the new county governments. The issues are policy and institutional in nature and require the contribution of various actors. The TFDG proposes that these Transition Processes be anchored in law through a Transition to County Governments Bill, 2011. In articulating the transition issues, it will be important to keep the following overarching issues and processes in mind, namely: Human Resource; how existing human resource in the central government, including the Provincial Administration, and local authorities will be rationalized and deployed and the management of the social, political and financial implications of the process; Service delivery; how continuation of delivery of services at both the national and county governments will be guaranteed in the transition period; National stability and security; how national stability and security will be assured in the course of transition; Assets and liabilities; how existing assets and liabilities will be apportioned and managed; Policy and facilitative legislative framework; how requisite policies and facilitative legislation will be formulated on timely basis to ensure compliance with the transition schedule set out by the Constitution; Capacity building framework; how capacities from the perspectives of human and physical infrastructure will be undertaken to ensure that county governments take off smoothly; Ongoing reform processes; how the various ongoing reform processes at both the current central and local government levels will be transited into the new dispensation; and Communication; how information accruing from and relating to the transition process will be generated, owned, managed and disseminated.
13.3
TRANSITION AREAS
The attainment of the issues outlined in Figure 14.1 over the transition period will be important for the success of counties. The transition period as defined by the Constitution is three years after the establishment of the county governments, that is between August 2012 when the county governments come into being after the next elections and August 2015. However, for our purposes we define two transition periods, the first being that after the passage of Bills necessary for effecting devolved governments, including that provided for by Article 200, and August 2012. Within this period arrangements will be made to ensure that county governments start on good footing after August 2012, when the second phase of the transition period starts. Page | 296
Activities of the first period are summarised in Table 13.1, indicating for activity why the actions are necessary, who the actors are, the supporting policy measures/legislation, the expected outcomes and the timelines. The implementation of some these proposals are already in progress, for example audit of assets and liabilities of local authorities and audit of central government staff in counties have started. The audit of the assets and liabilities of LAs is necessary to assist in the clearing of their financial obligations as required by the terms of reference of the Task Force. The audit of current government and local authority staff stationed in counties is to assist in their secondment to county governments during the transition. Table 13.1: Transition in Phase 1
ACTIONS JUSTIFICATION ACTOR(S) REQUIRED POLICY/LEGAL MEASURES Assets and Liabilities Bill, Transition Bill OUTCOME TIME FRAME May 2011June 2012
AUDIT OF ASSETS AND LIABILITIES OF LAs
Clearing of outstanding financial obligations of LAs Vesting of plant & equipment to county governments
ODPM/MoLG, LAs, Transition Secretariat Ministry of Public Works, LAs, ODPM/MoLG and Transition Secretariat MoPW, MDAs and Transition Secretariat
AUDIT OF LA INFRASTRUCRURE COUNTIES
Transition Bill, Intergovernmental Relations Bill,
AUDIT OF CENTRAL GOVERNMENT INFRASTRUCTURE IN COUNTIES AUDIT OF CENTRAL GOVERNMENT STAFF IN COUNTIES
Vesting of some plant & equipment to county governments
Transition Bill, Intergovernmental Relations Bill,
Secondment of central government staff to county governments
MoSPS and other MDAs
Transition Bill, Intergovernmental Relations Bill, County Public Service Commission Bill Transition Bill, Intergovernmental Relations Bill, County Public Service Commission Bill Bills on counties published & or published Transition Bill, County Public Finance Management Bill, Intergovernmental Relations Bill Development Facilitation Bill, National Planning Commission Bill Transition Bill, Intergovernmental Relations Bill, Review of existing policies and Acts of Parliament relevant to each function
AUDIT OF LA STAFF IN COUNTIES
Secondment of LA staff to county governments
ODPM/MoLG, LAs & Transition Authority
CIVIC EDUCATION
COUNTY BUDGETS
Sensitisation of the public on Acts related to county governments Agreement on initial budgets for counties
ODPM/MoLG, MOJCA, and stakeholders ODPM/MoF, CRA, CIC & Transition Secretariat
Debts and liabilities of each LA established Number and functionality of plant & equipment established Number and functionality of plant & equipment established Number of staff in each county by cadre, grades, gender, age & qualification Number of LA staff in each county by cadre, grades, gender, age & qualification Civic education on devolution started Initial County budgets agreed
July 2011March 2013
July 2011March 2013
March 2011December 2011
July 2011March 2012
August 2011- June 2012 March 2012
COUNTY PROFILES
ANALYSIS OF FUNCTIONS
Establishment of basic data and framework for data collection and analysis in counties Development of understanding & framework for devolving functions to counties by MDAs
MoPND &VISION 2030
Profiles of counties produced and printed Definition and plan for distribution of functions published & necessary Acts amended
May 2011Dec 2011
All MDAs
June 2011Dec 2011
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The audit of central government and local government infrastructure is to assist in the determination of plant and equipment to be vested to the county governments. In the case of the central governments it will also assist in determining which plant and equipment will be left to it in the counties. After the bills that relate to devolution have been published, there will be civic education to inform the public on all the aspects of the new system of government. The overall civic education programme is being developed and will be implemented under the coordination of the Ministry of Justice National Cohesion and Constitutional Affairs. The materials and the programme for the devolution aspect of this matter is being developed by the Task Force on Devolved Government and will be implemented by the Office of the Deputy Prime Minister and Ministry of Local Government. Table 13.2: Transition in Phase 2
ACTION Formation of county governments ACTIVITY Swearing in of Governor and Deputy Governor Swearing of County Assembly Appointment and swearing in of Speaker of County Assembly ACTOR(S) Presiding Judge of the County High Court Presiding Judge of the County High Court County Assembly & County Executive & Presiding Judge of the County High Court County Assembly & County Executive Governor & County Assembly County Executive LEGAL AUTHORITY Devolution Bill Devolution Bill Devolution Bill TIME FRAME
Establishment of County Public service
Appointment of Clerk of County Assembly Appointment, confirmation and swearing in of County Executive Appointment of staff for executive Appointment of staff for County Assembly Vesting of assets of LAs and central government to County Governments Construction of required structures
Devolution Bill Devolution Bill County Public Service Bill, Transition Bill County Public Service Bill Transition Bill September 2012 September 2012 September 2012 November 2012
County Executive Transition Authority
Transfer of assets to county governments Development of County Government offices Secondment of staff to county governments Establishment of County Public Service Commission Appointment of county staff Restructuring of Provincial Administration Devolution of functions to counties Capacity Building for County Governments
County Executive
Transition Bill
November 2012
Some staff of LAs and central government placed under control of county executive CPSC appointed by county executive and confirmed by county assembly Advertisement and interviews by CPSC Restructuring of PA initiated
MoSPS
County Executive & Assembly
County Public Service Bill, Transition Bill County Public Service Bill
August 2012
November 2012
CPSC MoSPAIS
County Public Service Bill
From January 2013 Sept 2012August 2017 June 2013August 2015 January 2012January 2015
Asymmetric devolution of functions begins Development of capacity building programmes & training of county staff
MDAs & Transition Authority National Government & Transition Authority
Transition Bill
Transition Bill
It is expected that Treasury will allocate funds to the counties in the 2012/13 budget even though the county governments will not be in existence when the budget
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processed is finalised. It is proposed that ODPM/MoLG, CRA and the Transition Authority should be involved in the decisions on these initial county budgets. It is also important that data bases for counties are developed to assist county governments to effectively undertake development planning as soon as they are established. This initial work is proposed to be done by the Ministry of State for Planning, National Development and Vision 2030. One of the most important activities in the whole process of devolution is that of devolution of functions assigned by the Constitution from the national government to county governments. The process leading to this activity is as described in chapter 6 will start with the unbundling of functions by MDAs. This process is expected to start in June and end in December, 2011. The purpose of the exercise is to separate and define the functions that fall under each level of government. In the process there will be need to review legislation and policies governing the all the functions to be devolved. It is estimated that about 700 laws will have to be amended, a task that is expected to be finalised before June 2012. The second phase of the transition, shown in Table 13.2, starts after the county governments take office sometime in August 2012. The most immediate activity in this phase will be the formation of the county governments that will include the swearing in of the Governors and their deputies and the members of the county assemblies. This will be followed by the appointment of the county executive and a few key political staff. Some preparatory work to ensure this process goes well will be initiated the Transition Authority. To effectively begin to put in place county public services it will be necessary for the county governments to establish their public services using the modalities provided in chapter 5. These institutions are proposed to be established by November, 2012 and will begin the recruitment process from January 2013. In the meantime county government services will be provided by staff seconded from ministries and former local authorities. As county recruit their staff will be need for capacity building to ensure that they facilitate effective delivery of services in the new system of governance. This function will be provided by the national government through its training institutes and by providing financial resources for other opportunities through grants to county governments. The restructuring of the provincial administration will be initiated at this stage and as prescribed by the Constitution will go on for a period of five years. One of the key activities in this phase is the taking over of facilities previously owned by both the national and local governments in the counties. These facilities would have been identified in phase one (1) and may include buildings and other plant and equipment. Some of these like hospitals, schools, machinery and so forth are key for service delivery. Inadequacy in offices identified in phase 1 will be addressed at this
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level by initiating development under the guidance of county public works officers after appropriate procurement procedures have been followed. As already noted, counties will begin to take over the assigned functions at this stage. The process is proposed to start in January 2012 and is expected to be finalised by June 2015. This process will be implemented jointly by the national and county governments with oversight by CIC and the Transition Authority. It is proposed that the Transition Bill provides the framework and modalities for asymmetric devolution of functions. This is important to provide a legal basis necessary for smooth transfer of functions to counties.
13.4
PROPOSED ENABLING LEGISLATION
Table 13.3 summarises the list of bills to be legislated in support of the implementation of the devolved system of government. It indicates which Constitutional articles the laws are responding to, the suggested contents and timelines applicable. Table 13.3: Proposed Legislation for Implementing Devolved Government in Kenya
# 1 2 3 4 5 6 7 8 9 10 11 12 13 CONSTITUTIONAL PROVISION PROPOSED LEGISLATION Devolution Bill, 2011 Transition Bill, 2011 Transfer of Assets & Liabilities Bill, 2011 Devolved Government Elections Bill, 2011 County Public Financial Management Bill, 2011 Intergovernmental Fiscal Relations Bill Intergovernmental Relations Bill, 2011 Development Facilitation Bill, 2011 County Public Service Commission Bill, 2011 County Leadership, Ethics and Integrity Bill, 2011 County Systems Bill, 2011 County Government Structures Bill, 2011 Minorities and Marginalised Groups Bill, 2011 CONTENTS TIMELINES
13.5
PUBLIC COMMUNICATIONS IN SUPPORT OF THE TRANSITION PROCESS
The implementation process for operationalising devolved government will be supported by a robust public communication effort, primarily driven by the Ministry of Justice, National Cohesion and Constitutional Affairs, but implemented by the Office of the Deputy Prime Minister and Ministry of Local Government, in
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conjunction with a wide ranging set of non-state actors. A comprehensive programme to implement this is under development, guided by the proposals in this document, the requirements Integrated National Civic Education Strategy under development and strengthened by feedback arising from consultations based on this ITFR.
13.6
CONCLUSIONS
A seamless transition is critical for the successful implementation of the devolved structures and for ensuring that county governments have the necessary frameworks, capacity and infrastructure to undertake their functions and duties once the first elections under the new constitution are held in 2012. While it may not be possible to provide for every transitional detail, the key issues and stages in the transition processes have been highlighted in this chapter, and further details will be provided for in legislation that will guide the transition process.
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ANNEXURES
ANNEX 1: COUNTY CONSULTATIONS QUESTIONS
Issue 1: Cooperative Government, Inter-Governmental Relations and Levels of Governance 1. 2. 3. What actions are needed to facilitate cooperation and consultation between County governments and between County governments and the National Government? What actions are needed to facilitate the undertaking of joint functions between County governments and between County governments and the National Government? How should the County government cooperate with National Government Ministries, Parliament, the Judiciary, and the Commission for Revenue Allocation and other Constitutional Commissions? What actions are needed to facilitate linkages and consultation between a county government and its senator? What considerations should be taken into account in establishing cities and urban areas in counties? How should cities and urban centers be governed? How will cities, urban areas and municipalities relate with county and national governments? What other decentralized units will be necessary in County governments and why? How should conflicts between County governments be addressed?
4. 5. 6. 7. 8. 9.
Issue 2: Functions of and Service Delivery by County Governments 1. 2. What conditions must be in place in a county before a function is transferred to it? How should these functions be exercised and services provided by the county governments and by whom? 3. What are the key factors that should be considered in planning within counties? 4. How should the county public service be structured, staffed and managed? 5. What type of capacity and skills will be required for effective service delivery at the county government level? 6. How do you want national government functions exercised and services provided at county level? 7. What do you think should be the role of the Provincial Administration in the counties? 8. How would you like the provincial administration to be restructured to play its roles? 9. How should organisations providing cross-border services (for example water services boards) be managed? 10. How should a county government manage services being implemented on its behalf by quasi-government bodies or lower county structures? 11. When should functions of the national government be transferred to county government and vice versa? Issue 3: Financial Resources and Management in County Governments 1. 2. 3. What should be the basis for any allocation of funds and grants to county governments? How should conditional and unconditional grants be applied to promote the objects of public finance and achieve the goals of national development? How should current devolved funds (such as CDF, LATF, Road Maintenance Levy Fund (RMLF), Youth Enterprise Fund, Women Enterprise Fund, Bursary Funds, etc) be managed in the context of County Governments?
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4.
What criteria should be used to allocate the resources from the Equalization Fund within a county? 5. What controls and safeguards should be put in place to prevent misuse and inappropriate application of funds at the county level? 6. What other taxes should a county government be allowed to raise? 7. What should be the criteria and requirements for the approval of loans and loan guarantees to county governments? 8. What sanctions should be applied to county governments for abuse and/or default in the repayment of loans? 9. Under what conditions/circumstances can national government intervene? 10. What procedures and practices should county governments apply to ensure sound budgeting and financial management? Issue 4: Political Governance, Leadership, Accountability and Integrity in County Governments 1. 2. 3. 4. 5. 6. 7. 8. 9. What should be the qualifications, leadership qualities, and experience of the governor, senator, county assembly members and county executive members? What should be the procedures for appointment and approval and removal of the county executive committee? What should be the procedure for election of the County Speaker? What kind of electoral processes will enhance political competition and choice at County level? What should be the size and population of each ward in a county? What should be the procedures for developing party lists for proportional representation? How should the performance of the governor, deputy governor, senator, assembly speaker, assembly members, and executive committee be assessed and enforced? How should a county be governed during suspension of the county government by the national government? What transition procedures and institutions, if any, should there be to ensure continuity of county government?
Issue 5: Public Participation and Oversight and Protection of Minorities and Marginalized Groups. 1. 2. 3. 4. 5. 6. 7. What criteria should be used to determine minorities and marginalized communities in counties? How can minorities and marginalized groups in counties be protected? What procedures should be put in place to ensure public participation and influence in county governments affairs? What kind of oversight measures and checks should the public have to ensure performance and accountability by the county government? What information and communication methods are required for the public to effectively participate in devolved governance? How should members of the public receive feedback from the county governments? How can Information Communication Technology (ICT) be utilized to promote good governance and accountability in counties?
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ANNEX 2:
SCHEDULE OF COUNTY VISITS OF 20TH FEBRUARY TO 16TH MARCH 2011

DATE
COUNTY VENUE CLUSTER 1: COAST AND NORTH EASTERN PROVINCES Taita Taveta County Taveta Lutheran Taveta Hall/ Challa Hotel Taita Taveta County Wundanyi/Mwatate Voi Town Hall Kwale County Kinango Kinango Youth Centre Kwale County Matuga/Msambweni Kwale County hall Mombasa County Likoni/Kisauni/Mvita Aga Khan Jubilee Hall Changamwe Kilifi County Kaloleni/Ganze Kaloleni Social Hall Kilifi County Bahari Kilifi County Hall Kilifi County Malindi/Magarini Malindi County Hall Tana River County Garsen, Hola Garsen- Methodist Guest House Tana River Hola-Tana River County Hall Garissa County Dujis/Fafi/Lagdera Garissa County Hall Ijara Ijara Woman Kind Wajir County Wajir West & North Giriftu Pastoral Training Centre. Habaswein in Wajir South Habasein , DCs office Wajir County Wajir East Wajir County Hall Mandera County Mandera Mandera Town Hall Lamu County Lamu East Faza Social Hall Lamu County Hall Lamu West Green View Hotel-Mpeketoni Nairobi County St. Benedict Kasarani
21st February 2011 22nd February 2011 23rd February 2011 24th February 2011 25th February 2011
28th February 2011 1st March 2011 2nd March 2011 3rd March 2011
4th March 2011 4th March 2011 7th March 2011
8th March 2011 23rd March 2011 9th March 2011 10th March 2011 15th March 2011
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COUNTY Cluster 2: Group 1 Marsabit County Moyale Marsabit Isiolo County Gabartulla Isiolo Laikipia County Nanyuki Meru County Maua Meru Tharaka Nithi County Marimanti Chogoria Chuka Nyandarua County OlKalou Ndaragwa Laikipia County Nyahururu Nyeri County Nyeri Othaya Nairobi County Embu County Embu Siakago Kirinyaga County Kerugoya, Wanguru Baricho Muranga County Muranga, Maragua Kiambu County Thika Kiambu
VENUE
DATE
Moyale County Hall Marsabit- St. Stephen ACK Garbatulla Social Hall Isiolo Police Mess Nanyuki Town Hall Maua Youth Polytechnic Meru County Hall Tharaka CDF Hall Chogoria Town Hall Chuka Town Hall Olkalou Town Hall Ndaragwa DCs office Nyandarua County Hall Nyeri Municipal Chambers CDF Hall Othaya Mbotela Social Hall Embu- Town Hall Siakago Catholic Hall Kerugoya County Hall Wanguru Sec School Baricho Secondary School Muranga County Hall Muranga Teachers College Thika Municipal Hall Kiambu County Hall
21st February 2011 22nd February 2011 23rd February 2011 24th February 2011 25th February 2011 26th -27th February 2011 28th February 2011 1st March 2011 2nd March 2011 3rd March 2011 4th March 2011 5th 6th March 2011 7th March 2011 8th March 2011 9th March 2011 15th March 2011 21st February 2011 22nd February 2011 23rd February 2011 24th February 2011 25th February 2011 26th -27th February 2011 28th February 2011 1st March 2011 2nd March 2011
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COUNTY Kitui County Mwingi Kitui Mutomo Makueni County Sultan Hamud Wote Machakos County Matuu Machakos Nairobi County CLUSTER 3: RIFT VALLEY PROVINCE Kajiado County Loitoktok Namanga Narok County Narok Bomet County Bomet Kilgoris Kericho County Kericho/Londiani Litein Nandi County Kapsabet Burnt Forest Uasin Gishu County Eldoret Elgeyo Marakwet County Iten Kapsowar Trans Nzoia County Kitale Kachibora West Pokot County Kapenguria Sigor
VENUE Mwingi County Hall Kitui Multi-Purpose hall Mutumo Catholic Church Kasikeu Secondary School- Kilungu Makueni County Hall Matuu Town Hall Machakos Town Hall DOs office Kibera
DATE 3rd March 2011 4th March 2011 5th 6th March 2011 7th March 2011 8th March 2011 9th March 2011 10th March 2011 15th March 2011
Loitoktok DCs Office ( B) Kajiado County Hall (A) DCs office (A & B) Narok Town Council (A&B) Bomet County Hall (A) Kilgoris Town Hall (B) Kericho Teachers College (A&B) Bureti County Council Hall (A&B) Kapsabet Town Hall (A&B) Burnt Forest-Amcent Secondary School (A & B) Eldoret Town Hall (A&B) Iten-Keiyo County Hall (B) Kapsowar Marakwet County Council Hall (A) Nzoia County Council Hall (B) Kachibora -DCs Office (A) Kapenguria- Mtero Hall (A) Pokot County Council Hall (B)
21st February 2011 22nd February 2011 23rd February 2011 24th February 2011
25th February 2011 28th February 2011 1st March 2011 2nd March 2011 3rd March 2011 4th March 2011
7th March 2011
8th March 2011
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COUNTY VENUE Turkana County Lodwar Lodwar County hall (B) Lokichogio County Council UNICEF Hall (A) Samburu County Maralal Maralal Samburu County Hall Baragoi Baragoi- CCF hall Baringo County Karbarnet Karbanet County Hall (A) Marigat Eldama Ravine- Town Hall (B) Nairobi County Charter Hall CLUSTER 4: WESTERN AND NYANZA PROVINCES Busia County Busia Busia County Hall Port Florence Port Victoria Centre Bungoma County Bungoma Bungoma County Hall Kapsokwony Kapsokwony County Hall Kakamega County Kakamega Kakamega Municipal Social Hall Mumias Mumias ACK Mumias Hall Kakamega County Lugari Tack Hall Min of Education- Lumakanda. Bungoma County Webuye Webuye Municipal Hall Vihiga County Mbale Avugwi Social Hall County Council. Luanda Busagame Sec School Siaya County Siaya Siaya County Hall Ugunja Ugunja Town Hall Kisumu County Kisumu Kisumu Social Hall Siaya County Bondo Bondo County Hall Rarienda Rarienda DCs Office Kisumu County Awasi Awasi Nyando Catholic Church Kombewa Kombewa DOs office
DATE 9th March 2011
10th March 2011
11th March 2011 15th March 2011
21st February 2011
22nd February 2011
23rd February 2011
24th February 2011 24th February 2011 25th February 2011
28th February 2011
1st March 2011 2nd March 2011
3rd March 2011
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COUNTY Homa Bay County Homabay Oyugis Homa Bay County Mbita Magunga Migori County Migori Kehancha Kisii County Kisii & Keroka Ogembo & Nyamambe Nyamira County Nyamira Nyansiongo Nakuru County Nakuru Nakuru County Naivasha
VENUE Homa Bay County Hall Oyugis Town Hall Mbita Town Hall Magunga DCs office Migori County Council Hall Kehancha Multi-Purpose Hall Gusii County Council Gucha County Hall Nyamira County Hall Nyansiongo Town Hall Nakuru Municipal Hall Naivasha- CPK Hall Hall
DATE 4th March 2011
7th March 2011
8th March 2011
9th March 2011 10th March 2011 11th March 2011
14th March 2011 15th March 2011
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ANNEX 3:
INTERNATIONAL AND OTHER TREATIES AND CONVENTIONS RELEVANT TO DEVOLUTION
TO BE INSERTED
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ANNEX 4:
FUNCTION
ANALYSIS OF DISTRIBUTION OF FUNCTIONS UNDER SCHEDULE 4 OF THE CONSTITUTION OF KENYA

LEVEL OF GOVERNMENT National County NATURE OF FUNCTION E E C/S E C/S C/S
E Exclusive R Residual C/S Concurrent or Shared Foreign Policy Foreign Affairs Foreign Policy International Trade Water Use of international waters Water resources Energy Energy policy including electricity and gas reticulation and energy regulation Immigration and citizenship Relationship between Religion and State Language policy and promotion of official and local languages National defence and use of national defence services Police services Setting of standards of recruitment, training of police and use of police services Criminal law Correctional services Courts National economic policy and planning Monetary policy, currency, banking (including central banking), the incorporation and regulation of banking, insurance and financial corporations. National statistics and data on population, the economy and society generally Intellectual property rights Labour standards Consumer protection, including standards for social security and professional pension plans. Education policy, standards, curricula, examinations & granting of university charters Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions. Promotion of sports and sports education Transport and Road traffic communications Construction and operation of generally national trunk roads Standards for the construction and maintenance of other Roads by counties; Railways; Pipelines; Marine navigation; Civil aviation; Space travel; Postal services; Telecommunications; and Radio and television broadcasting. National public works Housing Housing policy
E C/S C/S E E
E E E C/S E
C/S C/S E C/S C/S C/S
C/S C/S C/S E
E E E E E E E E E C/S C/S
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FUNCTION E Exclusive Land R Residual C/S Concurrent or Shared General principles of land planning and the co-ordination of planning by the counties Protection of the environment and natural resources with a view to establishing a durable and sustainable system of development Fishing, hunting and gathering; Protection of animals and wildlife; Water protection, securing sufficient residual water, hydraulic engineering and the safety of dams Energy policy Health policy National referral health facilities County health facilities and pharmacies; Ambulance services; Promotion of primary health care; Licensing and control of undertakings that sell food to the public; Veterinary services (excluding regulation of the profession); Cemeteries, funeral parlours and crematoria; and Refuse removal, refuse dumps and solid waste disposal.
LEVEL OF GOVERNMENT National County
NATURE OF FUNCTION C/S
Environment
C/S
C/S C/S C/S
Health County Health Services
C/S E E E E E E
E E E C/S C/S E E E E E E E E E E E E
Disaster management Ancient and historical monuments of national importance Elections National elections Agriculture Agricultural policy Crop and animal husbandry Livestock sale yards County abattoirs Plant and animal disease control; and fisheries Veterinary Veterinary policy Capacity building and technical assistance to the counties. Public investment National betting, casinos and other forms of gambling Tourism policy and development. Control of air pollution, noise pollution, other public nuisances and outdoor advertising
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ANNEX 5:
METHOD
REVIEW OF METHODS FOR COSTING DELIVERY OF DEVOLVED SERVICES

ADVANTAGES DISADVANTAGES WHEN IT IS MOST USEFUL When there is limited data on expenditure assignments, standards and unit costs When quick reforms are pursued, as the method may be preferred to other existing and more random, arbitrary and non-transparent principles In cases where the future assignment of tasks is likely to change, but where it is hard to predict the outcome In case where there has been no costing of actual services In case where there is time for this kind of exercise, which requires significant input and time REQUIREMENTS AND ISSUES TO BE CONSIDERED A crude guess has to be made on finances that accords with the division of tasks across the tiers of governance Should the local share be linked to public revenues (and which) or GDP? COUNTRY EXAMPLES
APPROACH
Relative Share
Rough division of the total public revenues and expenditures across tiers of governance using international data and crude common sense estimates or fixed percentage of GDP or public revenues
Quick results Transparent Affordable results as the method divides the available funds across the tiers of governance
Not related to the actual costs of local service delivery / expenditure needs Does not ensure that the funding covers the mandatory functions (will often lead to many unfunded mandates) Cannot be used for planning & budgeting purposes and efficiency initiatives May be static and gradually without relations to the actual division of function if not updated over time
Ghana (in the determination of the Distruict Assemblies Common Fund which is at the moment 7.5% of public revenues Cambodia (CS Fund) which has been set between 2.5-3.0% of the national budget
Historical Data
Review of the existing costs of all services and other functions prior to the decentralisation at various tiers. It reviews the costs of all services at all tiers of governance
Provides a baseline for future calculations when tasks are transferred; adjustments are then made at the margin It is easier to get reliable information on costs of services prior than after decentralisation has just taken place It avoids the issue of unclear mandatory functions, as it deals with the existing division in practice Useful for planning and budgeting purposes Useful to estimate realistic and affordable standards.
It is hard to link the results directly to the grant system, as it is not based on the legal framework, but prevailing practice. It does not, if a stand-alone exercise provides an answer of the costs of a decentralised system, required grants etc., as this system has not been defined. Costs may not be the same when functions are transferred to the LG levels. The process of decentralisation is already on-going in most countries.
Requires data on budget and accounts, on service standards on costing etc. Is a first step which may later be supplemented with a review of cost in cases where the assignments are changed and /or where assignments are clarified
Philippine with the calculations made to determine the Internal Revenue Allotments (IRA) (grant). However, the calculations in the Philippines went beyond this rude calculation. Spain has used some variant of this approach as well (Bahl &Vazquez, 2006)
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METHOD
APPROACH
ADVANTAGES
DISADVANTAGES
WHEN IT IS MOST USEFUL In systems where final decisions on decentralisation and major standards have been made and when fundamental reforms are on the agenda
REQUIREMENTS AND ISSUES TO BE CONSIDERED Clarify mandatory functions with no ambiguity Clarify service standards (is very demanding) Make realistic phasing
COUNTRY EXAMPLES
Full BottomUp Costing
Review the costs of the devolved units mandatory functions as they are supposed to be or expected to be after final decisions about the decentralisation and assignment of functions have been made real costing of all services by use of a bottom-up approach studying cost of services Review of selected localised services as they are delivered in practice (and cost the real expenditure needs of these) Only facilitates up to the main service delivery level of government are included in the costs and only core basic services which will be decentralised, by use of combination of existing expenditure and actual needs
May provide information of use for determining the future size of the grants to devolved units (fiscal gap analysis) Useful for planning & budgeting purposes
Hard to predict the outcome of future assignments The costing cannot contribute to the dialogue, and assumptions may not be fulfilled; Very labour intensive and time consuming Standards are often not available for the costing May lead to unaffordable results
Indonesia Started in Yemen, but not completed
Full BottomUp Costing plus Historical Data
Provides a baseline for future calculations when tasks are transferred, adjustments at the margin can be made It is easier to get reliable information on the costs of services prior than just after decentralisation has taken place It partly solves the problem of unclear mandatory functions, as it deals with the existing division in practices and the costing does not depend on the assignment Useful for planning & budgeting purposes
It is hard to link the results directly to the grant system, as it is not based on the legal framework, but on prevailing practice If it is a stand alone exercise, it does not provide the answers about the costs of a decentralised system, required grants etc. s this system has not been defined It requires significant input and surveys It is a very demanding method, which is very labour intensive Standards are often not available for the costing
In cases where the future assignment os tasks is likely to change, but where it is hard to predict the outcome In cases where there have been no costings of actual services It is a good starting point for the full costing methods
Requires data on budgets and accounts, on service standards, on costing etc. Is a first step which has to be supplemented with a review of cost in cases where the assignment is changes and/or where assignments are clarified
Latvia (studies in 1998-2000)
Estonia (1999-2000) Uganda Local Govern ment Finance Commission (Revenue Share Studies from 2001-20003)
Source: Adapted from Steffensen, Jesper (2010) Overview of Costing Methods for LG Expenditures. Fiscal Decentralisation and Sector Funding Principles and Practices: Annex 2: Page | 313
ANNEX 6:
PROVISIONAL SIMULATIONS OF HORIZONTAL REVENUE SHARING SCENARIOS
The scenarios presented here are for illustration purposes to facilitate focussed discussion on the issue of the formula and the accompanying variables that would feasibly be used to share revenue allotted to counties between counties. The simulation exercise makes the following assumptions: Population is based on 2009 census - No growth factor Urban population is core urban plus peri-urban populations of urban centres (KNBS) Base amount of 15% share is Kshs 105.5 bn, based on forward estimates in 2011-1 Budget Policy Statement. The amount projected to apply to the 2012/13 year when 15% share will be paid for the first time The following Counties were purposively selected, namely Isiolo, Kakamega, Lamu, Marsabit, Meru, Mombasa, Murang'a,
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Nairobi and Narok. The guiding criteria to have counties that as far as possible are representative of a lot of the issues that citizens during the county visits suggested to be the variable though which revenue would be shared. These were population, urbanization, size of county and contribution to the economy. The scenarios developed were as follows: Population - 100% shared on total population Population and Urbanization - 80% shared on total population, 20% on urban population Population and Size of County - 80% shared on total population, 20% on land RGDP-S - Simulated regional GDP based on county share of Single Business Permit fees (by existing local authorities)
The results were as follows suggest that larger counties in terms of population get more from a population based formula, which is to be expected. If on the other end a derivation formula is applied to the sharing of revenue, then Nairobi and other counties that have more own revenue, would receive more.
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ANNEX 7:
County
PROVISIONAL COUNTY PROFILES

Constituencies (No.) 5 5 6 5 4 4 6 2 2 9 3 9 5 4 7 6 6 3 2 2 6 5 3 4 4 Districts (No.) 6 4 9 7 5 7 6 3 5 11 5 10 6 5 10 6 16 3 5 2 8 9 6 4 7 Local Authorities (No.) 4 4 7 7 4 3 7 1 2 6 6 8 5 4 10 5 4 2 3 1 5 3 2 3 2 Total Pop '09 422,372 585,072 1,375,063 743,946 516,212 623,060 366,620 143,294 687,312 1,660,651 897,453 1,639,116 1,109,735 528,054 1,030,212 1,351,620 1,012,709 649,931 399,227 101,539 1,098,584 884,527 1,025,756 369,998 215,970 Area in Sq. Km 6,498.5 1,592.3 3,032.2 1,695.0 2,818.0 44,175.0 1,169.9 25,336.1 21,901.0 3,051.2 3,358.0 2,968.9 12,609.7 1,479.1 1,155.6 3,036.7 30,496.5 8,270.2 9,461.9 6,273.1 6,208.2 8,008.7 25,991.5 3,029.8 31,713.2 Rural Pop Urban Pop Density Poverty Property Tax SBP
Baringo Bomet Bungoma Busia Embu Garissa Homa Bay Isiolo Kajiado Kakamega Kericho Kiambu Kilifi Kirinyaga Kisii Kisumu Kitui Kwale Laikipia Lamu Machakos Makueni Mandera Elgeyo / Marakwet Marsabit
369,614 499,484 1,098,549 624,041 443,312 490,194 307,327 90,417 475,765 1,469,472 632,538 836,239 838,591 444,650 800,001 897,080 923,142 545,869 319,459 81,301 579,284 790,396 835,669 316,370 156,176
52,758 85,588 276,514 119,905 72,900 132,866 59,293 52,877 211,547 191,179 264,915 802,877 271,144 83,404 230,211 454,540 89,567 104,062 79,768 20,238 519,300 94,131 190,087 53,628 59,794
65.0 367.4 453.5 438.9 183.2 14.1 313.4 5.7 31.4 544.3 267.3 552.1 88.0 357.0 891.5 445.1 33.2 78.6 42.2 16.2 177.0 110.4 39.5 122.1 6.8
48.2 54.3 62.3 64.8 56.4 72.7 72.7 52.4 47.5 65.2 42.3 33.6 67.3 51.9 64.0 66.9 61.8 64.3 54.5 44.4 60.5 60.4 72.7 42.6 51.1
3,471,896 9,252,396 17,022,412 6,232,147 8,842,304 0 4,938,713 1,588,837 26,014,130 23,562,853 81,751,635 90,104,874 60,738,373 7,946,360 12,097,290 80,476,720 4,785,093 52,139,190 36,602,009 8,604,545 105,293,008 478,566 0 2,515,138 0
14,181,137 16,766,555 43,907,714 23,846,175 37,364,008 7,706,261 8,846,838 1,548,208 38,215,688 36,869,437 21,631,904 162,226,098 43,362,872 45,896,667 31,393,035 60,992,271 42,750,932 13,094,302 34,397,603 3,941,634 74,776,173 28,593,123 2,446,430 8,155,440 6,086,948
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County
Constituencies (No.) 7 5 4 6 8 6 4 3 3 4 6 3 2 5 4 3 2 3 3 3 4 4
Districts (No.) 8 7 4 8 9 9 5 4 4 7 8 4 3 6 4 3 4 3 6 3 4 8
Local Authorities (No.) 4 5 2 7 1 4 3 3 4 3 4 3 2 7 3 1 4 2 2 3 3 1
Total Pop '09 1,591,533 1,131,633 939,370 926747 3,514,612 1,227,082 752,965 576,388 720,322 596,268 693,558 645,879 223,947 842,304 284,657 240,075 130,098 1,093,289 930,595 894,179 554,622 661,941
Area in Sq. Km 8,025.5 3,659.1 218.9 2,133.3 3,729.7 4,460.5 2,884.2 15,074.7 1,061.3 3,245.3 3,337.1 13,686.2 21,022.2 2,530.4 17,084.0 38,436.9 1,549.5 5,353.9 107,928.3 3,345.2 530.9 56,685.8
Rural Pop
Urban Pop
Density
Poverty
Property Tax
SBP
Meru Migori Mombasa Murang'a Nairobi Nakuru Nandi Narok Nyamira Nyandarua Nyeri West Pokot Samburu Siaya Taita / Taveta Tana River TharakaNithi Trans Nzoia Turkana Uasin Gishu Vihiga Wajir
1,352,999 874,392
238,534 257,241 939,370
198.3 309.3 4292.1 434.4 942.3 275.1 261.1 38.2 678.7 183.7 207.8 47.2 10.7 332.9 16.7 6.2 84.0 204.2 8.6 267.3 1044.7 11.7
50.7 56.2 44.2 34.1 44.8 48.5 43.0 59.7 49.2 46.2 39.0 55.2 38.2 70.8 56.9 64.5 58.3 47.6 61.5 50.8 65.6 72.7
11,325,394 1,226,333 457,182,230 9,609,528 1,773,629,923 113,925,889 9,237,412 0 475,782 6,689,098 22,015,561 9,547,870 0 2,569,444 5,495,467 4,095,554 0 15,220,641 0 130,994,966 1,448,442 0
73,049,101 22,087,747 263,133,595 52,032,449 832,202,732 154,855,794 14,751,860 9,563,555 8,587,436 41,600,154 58,428,813 6,584,696 5,127,819 25,031,079 17,100,849 1,978,520 2,947,066 28,122,163 8,285,380 56,205,916 14,962,663 1,719,050
778,814 274,368.00 724,252 679,615 526,475 601,778 488,231 529,082 607,803 185,255 731,444 213,734 208,712 121,563 952,967 840,278 547,072 401,102 584,724
147,933 3,240,244 502,830 73,350 49,913 118,544 108,037 164,476 38,076 38,692 110,860 70,923 31,363 8,535 140,322 90,317 347,107 153,520 77,217
Total
210
286
175
38,610,097
581,313
27,089,600
11,520,497
2,592
3,219,148,023
2,507,355,890
Page | 317
BIBLIOGRAPHY
TO BE INSERTED IN FINAL REPORT
Page | 318
ENDNOTES
1
The Fourth Cabinet Meeting of 2010 was held on 17 th August 2010 during which Cabinet Memorandum Cab (10) 55, was jointly submitted by the Deputy Prime Minister and Minister for Finance, the Minister for Justice, National Cohesion and Constitutional Affairs and the Attorney General, Cabinet under item (v) directed each lead Ministry to commence on drafting the relevant Bills so that the implementation dates set out in the new Constitution are strictly adhered to.
2
See SID, Readings on Inequality in Kenya: Sectoral Dynamics and Perspectives, SID, 2006.Particularly Kanyingas paper titled Governance Institutions and Inequality in Kenya p.
3 4 5 6 7 8 9 10 11 12 13
To be added See, Ghai & McAuslan, Public law and political change in Kenya ibid Wanyande. P: Evolution of governance practice in Kenya; an overview in Bujra (ed) p.43 Ghai the problematique .. Ogendo O, Constitutions Without Constitutionalism: Reflections on an African Political Paradox Ibid note 2 p.48-49 See Kangu M See Mbai C, Accountability in Governance in Bujra (ed) Democratic Transition in Kenya, ACEG, Nairobi, 2005 p.105 Mitullah ( )
Mitullah, W ( ) Local Level Governance in Kenya a Review and Critic of Key Issues in Bujra (ed) Democratic Transition in Kenya,170.
14 15
Dobbs, Richard et. al. (2011) Urban world; Mapping the economic power of cities. McKinsey Global Institute. March Katz, 2008 Adopted from Asian Development Bank (2008) HM Government (2009) World Class Places: The Governments Strategy for improving the quality of place. Current one is the Political Parties Act, Chapter 7A UNDP, United Nations Development Programme Policy Document. (UNDP) ,1997 Ciulla J, Leadership Ethics: Mapping the Territory, Business Quarterly( 1995), p.5:5-24 George, B,(2003) Authentic leadership. San Francisco: Jossey Bass Edid M, IWS Issue Brief- Ethical leadership and the price of bad behaviour, Cornel University ILR School,2004 p.2
2011
16 17 18
http://www.communities.gov.uk/publications/planningandbuilding/worldclassplaces
19 20 21 22 23 24
Annex 3 provides an initial Provisional Summary of the International Conventions and Agreements to which Kenya is signatory that have an immediate implication on the operationalization of County Governments
25 26 27
Draft Kenya Local Government Bill, 2009 What is Good Governance. UNESCAP, 2009. Accessed 4th April 2010
Because the term good governance can be focused on any one form of governance, aid organizations and the authorities of developed countries will often focus the meaning of good governance to a set of requirements that conform to the organizations agenda, making "good governance" imply many different things in many different contexts.
28
29
http://www.42explore2.com/patriot.htm Accessed 29th March 2011
The World Bank defines decentralization as the transfer of authority and responsibility for public functions from central government to intermediate and local governments or quasi-independent government organizations. There are 3 distinct types of decentralization; de-concentration, delegation and devolution; these 3 have different characteristics, policy implications and conditions for success. In this paper we speak of devolution. In devolution, central government transfers authority for decision making, finance and management to quasi autonomous units of local government with corporate status.
30 31 32 33 34 35 36 37 38 39 40 41
Article174(a) of the Constitution Article174(c) Article174(d) Article174(f) Article174(i) Article175(a) Article176 (l) Article 177(l) Article 193(1)(a) Article 193 1(c) http://en.wikipedia.org/wiki/Closed_list Article 193(2)
Page | 319
42 43 44 45 46 47 48 49 50 51 52 53 54 55 56
Article 193(3) Article 178(1) Article 178(2) (a) Article 178(2) (b) Article185 (1) Article185(3) Article 185(4) Article 200 Article 194(1)(a) Article 194(1)(b) Article 194 (10)(d) Article 194(1)(e)(i) Article 194(1)(e)(ii) Article 89(3)
Article89(5) of the Constitution provides that the number of inhabitants of each constituency shall be as nearly as possible equal to the population quota but that the same may vary taking into account geographical features and urban centres, community of interest, historical, economic and cultural ties and means of communication. Such variance however must not be more than forty per cent for cities and sparsely populated areas and thirty per cent for other areas.
57
58 59 60 61 62 63 64 65
http://en.wikipedia.org/wiki/Asymmetric_federalismAccessed 29th March 2011 Article 191(1) Article 191(2)(a) Article 191(3) Article 191(3) (c) Article 191(2) (b) Article 175 See Articles 176 and 179 to 183 of the Constitution on the County Executive establishment.
Under Article 180(5) the qualifications and disqualifications for election of Governor are the same that apply to County Assembly members and are provided for in Article 193, including for independent candidates being supported by 500 registered voters in a ward.
66 67 68 69
Article 38 (3) Under Articles 24 and 25 of the Constitution Articles 99 (1)(b) and 193(1)(b)
This section has borrowed heavily from the IDEA publication, Andrew Reynolds et al, Electoral System Design: The New International IDEA Handbook, , IDEA, Stockholm,2005 70 Such as the Alternative Vote and the Two-Round System. The IDEA Handbook provides details on how these systems work.
71 72
Article 197(2)
Article 1 (3)(b) of the Constitution states that the sovereign power of the people of Kenya is delegated to the national Executive and the Executive structures in the County governments, and in Article 10 one of the national values and principles of governance that is provided for is the sharing and devolution of power.
73 74
In Article 179 These functions are provided in Article 183 and are mainly implementing County and national legislation, and managing and coordinating the County administration and its departments.
75 76 77 78 79
Article 183(3) Article 185(3) &(4) Under Article 179 (7) of the Constitution In Article 200
The Act also abolished the graduated personal tax, a major revenue source for Local Authorities thus drastically reducing their financial independence.
80 81
Functions are taken to refer those assigned under Schedule 4 of the Constitution of Kenya
Competencies or responsibilities refer to the powers given to a public authority in respect of a specific activity key to ensuring the provision of a public service. This would refer to powers of planning, regulating, setting standards, constructing, financing, managing, monitoring & evaluating; sanctioning or intervening in any way to ensure that a function assigned to it is discharged
82 83
Parrado (2005)
The problem usually is not that concurrent functions are present. The issue normally arises in the manner in which the implementation of concurrent functions is implemented. It is this process that must be managed to ensure that objects of devolution are achieved in a low conflict environment.
Page | 320
84 85 86 87 88 89 90 91 92 93
Hermann et. al. ( ) Ferazzi (2008) Steytler ( ) Further options for delivering services are discussed The Rio Declaration of 1992 See generally Art.1 of the Constitution. See US Civil Rights Act of 1964, 29 C.F.R. 1608.1. U.S. Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination (1981) Art.260 of the Constitution.
Report of the African Commissions Working Group of Experts on Indigenous Populations/Communities presented to the African Commission on Human and Peoples Rights at its 28th ordinary session 2005.
94
Prof. Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human Rights Council: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.
95
Article 1 of the ILO Convention No.I69 concerning Indigenous and Tribal Peoples in Independent Countries available at <http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm> (accessed on 20 January 2010).
96 97 98 99 100
See Barume, AK, Land Rights of Indigenous People in Africa, IWGIA Document 115, Copenhagen (2010). Report Op. cited. Id. Id.
Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human Rights Council: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.
101 102
ACHPR.
Report of the African Commissions Working Group of Experts on Indigenous Populations/Communities presented to the African Commission on Human and Peoples Rights at its 28th ordinary session 2005.
103 104 105
See BarumeOp cited.
Ibid.
Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities (1979) E/CN.4/Sub.2/384/Rev.1 at 96.
106
See definition by Minority Rights Group International available at <http://www.minorityrights.org/566/who-are-
minorities/who-are-minorities.html> (accessed on 3 December 2010).

107
Article 2 (1) to 2 (4) of the National and Ethnic Minorities and Regional Languages Act of Poland. Article 2.1 of the Polish Act provides that: A national minority, as defined by this Act, shall be a group of Polish citizens who jointly fulfil the following conditions: 1) is numerically smaller than the rest of the population of the Republic of Poland; 2) significantly differs from the remaining citizens in its language, culture or tradition; 3) strives to preserve its language, culture or tradition; 4) is aware of its own historical, national community, and is oriented towards its expression and protection; 5) its ancestors have been living on the present territory of the Republic of Poland for at least 100 years; 6) identifies itself with a nation organized in its own state. Article 2.2 of the Act provides: The following minorities shall be recognized as national minorities: 1) Byelorussians; 2) Czechs; 3) Lithuanians; 4) Germans; 5) Armenians; 6) Russians; 7) Slovaks; 8) Ukrainians; 9) Jews. Article 2.3 of the Act provides: An ethnic minority, as defined by this Act, shall be a group of Polish citizens who jointly fulfil the following conditions: 1) is numerically smaller than the rest of the population of the Republic of Poland; 2) significantly differs from the remaining citizens in its language, culture or tradition; 3) strives to preserve its language, culture or tradition; 4) is aware of its own historical, national community, and is oriented towards its expression and protection; 5) its ancestors have been living on the present territory of the Republic of Poland for at least 100 years; 6) does not identify itself with a nation organized in its own state. Article 2.4 of the Act provides. The following minorities shall be recognized as ethnic minorities: 1) the Karaim; 2) the Lemko; 3) the Roma; 4) the Tartar. 108 Van Der Bakeninfra note 29
109
See ACHPR Case 276 / 2003 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Before that there was failed national case of William YatichSitetalia& 72001 Others V Baringo Country Council & 2 Others [2002] eKLR.klr 110 Ol Ole Njogo and 7 others v the Honourable AG and 20 others case No. 91 of 1912 (5 EALR.70) 111 See HCCA 635/97: Joseph Letuya and 21 others Vs Attorney General and 5 others, HCCA 228/2001: Joseph Letuya and 21 others Vs the Minister for Environment and Natural Resources and HCCA 238/99 & Appeal No. 98/2000: Francis Kemei and 9 others Vs Attorney General and 3 others Judicial Review No. 421/2002: Republic Vs Minister for Environment and lands officials.
Page | 321
112
See Kiptum Y and Odhiambo, C Safeguarding Sengwer Territory, Land, Culture & Natural Resources :Participatory 3Dimensional Modelling of Cherangany Hills available at <http://www.iapad.org/publications/ppgis/p3dm_sengwer_people.pdf accessed 3rd Dec.2010> quoting C.H Adams, Acting PC Rift Valley in his testimony to the Kenya Land Commission (Carter Commission) of 1932.
113 114
Captain A.R Mahony, the DC West Suk in a meeting in Kapenguria on 17th of September 1935.
Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human Rights Council: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.
115
N, Ramakantan, Federalism, Decentralization and Democratization in a Multicultural Polity: Some Critical Issues in the State of Federalism in India, IFF Summer University 2008 Paper for Week 2 available at <http://www.federalism.ch/files/FileDownload/887/Remakantan_India.pdf> (accessed on 10 January2011).
116 117 118 119 120 121 122
Michael Keating, Federalism and the Balance of Power in European States SIGMA/ OECD, (2006):37. Prof. Keating Op. cited. Prof. Keating Op. cited. Article 174 of the Constitution of Kenya 2010. RamakantanOp. cited.
Ibid.
Christophe Van der Beken, Ethiopia: Constitutional Protection of Ethnic Minorities at the Regional Level , Afrika
Focus, Vol. 20, Nr. 1-2, 2007, pp. 105-151. 123 Ibid.
124
See Polish 1992 Education Ministers Resolution on the Organisation of Educational Programmes Enabling Minority Pupils to retain their Sense of National, Ethnic and Linguistic Identity.
125
Philip Lee, The Illustration of Democracy. In the Democratization of Communication (1985): Published on behalf of the World Association for Christian Communication pp 3 - 8
126 127 128
Ibid Pg. 2 Ibid Pg. 3
Kibisu Kabatesi, Press Law: Some Home Truths; in Democratization and Law Reform in Kenya (1997), ClariPress.pp 185-221 129 See Ochilo, The Role of the media in Democratic Transition in Kenya; in Governance and Transitional Politics in Kenya (2008)Nairobi University Press
130 131
Constitution of Kenya (2010), pp. 27-29: Printed by the Government Printer, Nairobi
See Hedebro (1982), The Role of Communication and Politics(1998) in Media and Sustainable Development, ACCE: Nairobi pp 226
132 133
Ibid Pg. 227
Shramm (1964), The Role of Communication and Politics(1998) in Media and Sustainable Development, ACCE: Nairobi pp 227 134 Uche (1991) Communication and Development in Military Political Culture. A case study of Nigerian Public campaign for Social Change In Media and Sustainable Development, ACCE: Nairobi pp 227
135 136 137 138 139 140
Ibid Pg. 227 Ibid Pg. 228 Ibid Pg. 228 See the Constitution of Kenya (2011) Ibid Karima et al
KarimaBounermra et al.The Role of ICTs in Science and Technology in Africa. In African Renaissance (1999), Mafumbe Publishing , South Africa
141
There were 4 Agenda Items, namely 1) Immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration 2) Immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration 3) How to overcome the then prevailing political crisis; and
142
This is expected to arise because local service providers are expected to be closer and therefore more responsive to needs; and in the process promotes higher accountability and efficiency.
143
This principle policy and decision making should be made and services should be provided at the lowest level of government unless there are compelling reasons for assigning the tasks the higher level of government. 144 See Annex 4 for some analysis of the implications of various simulations and types of formula on revenue sharing outcomes.
145
Pareto principle is named after the social economist Vilfredo Pareto (1848 -1923) who stated that if we can find a way of making to make some people better off without making anybody else worse off, we have a Pareto Improvement
146
See the Deloitte final evaluation repot for the GJLOS reform programme 2010
Page | 322
147
PMBOK is short for Project Management Body of Knowledge, a project management guide, and internationally recognized standards, that provide fundamentals of project management.
148
Statement issued by Chartered Institute of Public Finance and Accountants (CIPFA) of United Kingdom (2006)
Page | 323

Interim Report On Devolved Government

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INTERIM REPORT OF THE TASK FORCE ON DEVOLVED GOVERNMENT

A Report on the Implementation of Devolved Government in Kenya

WEDNESDAY, APRIL 20, 2011

DRAFT FINAL REPORT FOR TFDG EYES ONLY

LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED GOVERNMENT

Task Force on Devolved Government of Kenya

Mutakha Kangu Chairman Task Force on Devolved Government in Kenya

DRAFT FINAL REPORT FOR TFDG EYES ONLY

SIGNATURE PAGE FOR TASK FORCE MEMBERS

Lucy Muthoni Kambuni

Fatma Ali Saman

INTERIM REPORT TFDG CONSULTATION DOCUMENT

Onesimus Kipchumba Murkomen

Polycarp J.O. Ochilo

Antony Oteng Ombwayo

INTERIM REPORT TFDG CONSULTATION DOCUMENT

INTERIM REPORT TFDG CONSULTATION DOCUMENT

2 CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT ___________________________________________________________ 9

2.6.1 2.6.2 2.6.3 2.6.4 2.6.5

CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA ______ 27

INTERIM REPORT TFDG CONSULTATION DOCUMENT 3.3 3.4

OPERATIONALIZATION OF SHARED INSTITUTIONS ________________________ 31 THE FORM OF DEVOLUTION ______________________________________ 31

3.5 3.6 3.7

LEVELS AND UNITS OF DEVOLVED GOVERNANCE ___________________ 44

RURAL AREAS _______________________________________________ 47 CITIES AND URBAN AREAS ________________________________________ 47

CLASSIFICATION OF CITIES AND URBAN AREAS __________________________ 50

CHALLENGES FOR FORTY SEVEN COUNTIES ____________________________ 54

4.6.1 4.6.2 4.6.3 4.6.4 4.6.5

POLICY AND LEGAL GAPS ________________________________________ 58

4.8.1 4.8.2 4.8.3 4.8.4

STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE ____ 69

EXECUTIVE ARM OF GOVERNMENT __________________________________ 86

INTERIM REPORT TFDG CONSULTATION DOCUMENT

ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT _______________ 105

RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION ___________________ 109

FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE _______________ 125

FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA ___________________ 127

6.4.1 6.4.2 6.4.3 6.4.4 6.4.5

6.5 6.6 6.7

7 INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS ________________________________________________________ 140

OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT PLANNING ___ 143

CONCLUSIONS ______________________________________________ 148

INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION ___ 150

8.3.1 8.3.2 8.3.3 8.3.4 8.3.5 8.3.6

8.5.1 8.5.2 8.5.3 8.5.4 8.5.5 8.5.6 8.5.7 8.5.8

CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES ______________________ 160

8.6.1 8.6.2 8.6.3

INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _______________ 161

INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT _______________ 163

CONCLUSIONS ______________________________________________ 165

9.3.1 9.3.2 9.3.3 9.3.4 9.3.5 9.3.6 9.3.7 9.3.8

CONCLUSIONS ______________________________________________ 197

10 PUBLIC COMMUNICATION AND CIVIC EDUCATION IN DEVOLVED GOVERNANCE _________________________________________________________ 199

COMMUNICATION AND DEVOLVED GOVERNANCE ______________________ 199

CIVIC EDUCATION ON DEVOLVED GOVERNMENT _______________________ 211

CONCLUDING REMARKS ______________________________________ 219

INTERIM REPORT TFDG CONSULTATION DOCUMENT

BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE _________ 221

COMPARATIVE ANALYSIS ______________________________________ 223

COUNTY PUBLIC SERVICE _____________________________________ 224

TRANSITIONING FROM THE CURRENT PUBLIC SERVICE___________________ 227

CONCLUSIONS _____________________________________________ 232

OPERATIONALIZATION OF SHARED INSTITUTIONS 31 THE FORM OF DEVOLUTION ______________ 31

RURAL AREAS _______ 47 CITIES AND URBAN AREAS 47

BIBLIOGRAPHY 318 ENDNOTES_____ 319