Challenges Facing Devolution in Kenya A Comparative Study for HRM

of devolution visible across the Commonwealth4 and Africa.5 The concept of devolution has also been constitutionalised in the world’s oldest Constitution’s.6 The concept of devolution ta

APRIL 2014

Ondigi Calvin Nyambane

ondigi@outlook.com 4/1/2014

CHALLENGES FACING DEVOLUTION IN KENYA: A

COMPARATIVE STUDY

ABSTRACT

At independence in 1963, Kenya inherited a highly centralised bureaucracy from the colonial administration which was chiefly sustained through the institution of provincial administration to facilitate direct rule and govern alongside civil service This system termed ‘majimbo’ failed later because

it was not based on a sound principle of political governance among other problems including financial independence Kenya afterwards adopted the system of Local Government which was the country’s most substantive experience with devolution prior to the promulgation of a new Constitution on 27 th August

2010 This Constitution came at a time when Kenya was mature and prepared for a radical change from the centralised systems the colonialists had nurtured The Constitution designed an impeccable devolution structure that was primarily to ensure power was brought nearer to the people who would

in return exercise that power for the development of their own good But devolution was being implemented all over again and the transition process has been problematic So far therefore, devolution has been facing a number of challenges that has been the sole reason for under optimisation of its performance The fact that it is to its extent nascent, it has been subject to intergovernmental, administrative, legislative, policy, institutional among other conflicts The discourse that follows seeks

to address these challenges vis-à-vis other countries especially how they have addressed such challenges and how their devolution structures is distinguishes itself from the Kenyan system To prevent devolution from collapsing just as those of the yesteryears, it calls for a proper investigation on these issues and how such issues may be addressed So far, a number of legislative, policy and institutional measures have been put in place to address these issues including the formation of a taskforce to address the attendant pitfalls on devolution so far, the previous numerous devolution bills that were yet to be enacted have been passed as law and various forums to sensitize the citizens on devolution have been steered

LIST OF CASES

1 Isaac Aluoch v Independent Electoral and Boundaries Commission and 19 others Supreme Court of

Kenya Petition No 2 of 2013

2 Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot

Lidubwi Kihusa & 5 others [2012] eKLR

3 Hon Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs and another, Petition

No 198 of 2011 Consolidated with Petition No 166 of 2011 And 172 of 2011; [2012] eKLR

4 Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with

Patrick Njuguna & another v the Attorney General & another [2011] eKLR

5 Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High

Court Petition No 44 of 2011

6 In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate

Sup Ct Appl No 2 of 2012

7 The Speaker of the Senate & the Senate of the Republic of Kenya v the Attorney General & the Speaker

of the National Assembly (2013) eKLR (Supreme Court Advisory Opinion Reference No 2 of 2013)

8 Isaac Aluoch v Independent Electoral and Boundaries Commission and 19 others Supreme Court of

Kenya Petition No 2 of 2013

9 Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot

Lidubwi Kihusa & 5 others [2012] eKLR

10 Hon Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs and another, Petition

No 198 of 2011 Consolidated with Petition No 166 of 2011 And 172 of 2011; [2012] eKLR

11 Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with

Patrick Njuguna & another v the Attorney General & another [2011] eKLR

12 Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High

Court Petition No 44 of 2011

13 In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate

Sup Ct Appl No 2 of 2012

14 The Speaker of the Senate & the Senate of the Republic of Kenya v the Attorney General & the Speaker

of the National Assembly (2013) eKLR (Supreme Court Advisory Opinion Reference No 2 of 2013)

LIST OF STATUTES

1 Constitution of Kenya of 2010

2 County Government Act, No 17 of 2012

3 Transition to Devolved Government Act, No 1 of 2012

4 Inter-governmental Relations Act No of 2012

5 Urban Areas and Cities Act No of 2012

6 County Government Financial Management Act No of 2012

7 The National Financial Management Bill

8 Chiefs Act, Cap 128, Laws of Kenya

9 Elections Act, No 24 of 2011

10 International Covenant on Civil and Political Rights UN General Assembly Resolution 2200A (XXI)

CONTENTS

ABSTRACT i

LIST OF CASES ii

LIST OF STATUTES iii

CONTENTS iv

1 INTRODUCTION 1

2 LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA 3

2.1 Objects and Principles of Devolved Government 3

2.2 County Governments 4

2.3 Functions and Powers of County Governments 5

2.4 The Boundaries of Counties 6

2.5 Relationships between Governments 6

2.6 Suspension of County Governments 6

3 ATTENDANT PITFALLS OF DEVOLUTION IN KENYA 7

3.1 Devolution and Human Rights 7

3.2 Devolution and Separation of Powers 9

3.3 Devolution and Optimality 9

3.4 Devolution and the issues of Housing and Staffing 10

3.5 Devolution and Revenue Allocation and Expenditure 11

3.6 Devolution and the Transfer of Functions and Resources 12

3.7 Devolution and Health Care 12

3.8 Devolution Participation and Ignorance 14

3.9 Devolution and Kenyan Business 14

4 A COMPARATIVE ANALYSIS OF DEVOLUTION: LESSONS LEARNED FROM SOUTH AFRICA 15

4.1 Infrastructure 15

4.2 Capacity building 15

4.3 Finance 16

4.4 Legislation 16

4.5 Transformation 16

5 CONCLUSION AND RECOMMENDATION 17

5.1 CONCLUSION 17

5.2 RECOMMENDATION 17

5.2.1 Civic education 17

5.2.2 Safeguarding integrity in the process 18

5.2.3 Capacity for implementation 18

5.2.4 Financing 18

5.2.5 Oversight framework 18

5.2.6 The regional integration process 19

6 BIBLIOGRAPHY 20

A BOOKS 20

B REPORTS 20

C NEWSPAPER ARTICLES 20

D WEBSITE ARTICLES 20

© Ondigi Calvin Nyambane

of devolution visible across the Commonwealth4 and Africa.5 The concept of devolution has also been constitutionalised in the world’s oldest Constitution’s.6

The concept of devolution takes the form of confederal systems which permit independent political units

to come together for strictly limited purposes7, federal system which has government like units exercising powers delegated to it by the people and decentralised systems which is issue based.8 These systems provide for a distinct structure with responsibilities, functions, inter-relations, financial and resource control and system of representation.9 In Kenya, this concept is not nascent being a constitutionally devolved State at independence Constitutional power was transferred to the respective regions which enjoyed tax concession and financial powers This system of devolution was popularly

dubbed majimbo a constitutional term for a federalist system.10 It was however abolished de jure

1 Bryan A Garner, Black’s Law Dictionary 9 th Edition 518

2 Constitution of Kenya Review Commission (hereinafter CKRC) Main Report (2005) 223-242

3 Katalin T, ‘the Impact of Decentralisation on Social Policy’, LGPA/OSI, Budapest, 2003 The author argues verbatim that,

‘… decentralization which provides that power over the production and delivery of goods and services should be handled over to the lowest unit capable of dealing with associated costs and benefits

4 Canada, India, Malaysia, Australia, South Africa, Nigeria, Pakistan and Britain

5 Nigerian and Ethiopian federations

6 United States of America, Switzerland and Canada whose Constitutions are federal

7 The most extensive systems of devolution are those associated with systems of government whereby several states unite as

is the case in Switzerland and the emerging European Union Such purposes include foreign affairs, defence and/or economics

8 Ibid note 2 at 233

9 Ibid at 234

10 SID Constitution Working Papers No 4, ‘Devolution in Kenya’s new Constitution’ 26

through a National Assembly decision and [has] faced criticism on its practicability on the ground that

it resulted to divisions of the country into autonomous ethnic homelands.11

The Independence Constitution of 1963, [with amendments] did not make direct provisions for

devolution but some aspects of devolution were inherent For instance, there was a system of local government12 whose primary function was to inter alia render services to residents including markets,

social welfare, liquor sales regulations and land use planning.13With respect to funding, the central government played this role though it has been criticised that lack of constitutional protection exposed the system to manipulation, corruption and unbridled plenary powers to the minister of local government.14 There was also a system of provincial administration to deconsecrate the powers in the central government It was responsible for providing leadership, policy direction and secure environment in order to achieve social, economic and political stability.15 The system was criticised for being authoritarian and paternalistic entrenched with corruption, misuse of power and abuse of citizens’ rights.16

Progressively, Kenya promulgated a transformative new Constitution on 27th August 2010 which paved way for the realization of the quest for a devolved system of governance.17 This has definitely come with

a tonne of challenges considering the fact that implementation of the entire devolution process has been barely three years The following discourse proceeds to root out this challenges facing devolution in Kenya vis-à-vis other countries and how such challenge has been countered in other jurisdictions But first, it sets the Constitutional foundation of devolution in Kenya as provided under the Constitution of Kenya, 2010

16 Supra note 2 at 233

17 Gabriel Lubale, ‘An introduction to the County Governments of Kenya’ (as of 12 September 2012) <> at 7 February 2014

2 LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA

The legal framework within which devolved government evolves and derives its mandate include the Constitution of Kenya of 2010, County Government Act,18 Transition to Devolved Government Act,19

Inter-governmental Relations Act,20 Urban Areas and Cities Act21 and the County Government Financial Management Act.22 However, for the purpose of this research, the provisions of the Constitution seem most appropriate and thus, the discussion will be tied to the provisions thereunder

2.1 Objects and Principles of Devolved Government

The objects are to promote democratic and accountable exercise of power, foster national unity; give powers of self-governance to the people and enhance the participation,23allow communities to manage their own affairs and further their development, protect and promote the interests and rights of minorities and marginalised communities, promote social and economic development and the provision

of services throughout Kenya, ensure equitable sharing of national and local resources throughout Kenya, facilitate the decentralisation of State organs, and enhance checks and balances and the separation of powers.24 Moreover, democratic principles, the doctrine of separation of powers, the principle of financial independence and the two-third gender rule25 apply

21 No of 2012 Article 184 of the Constitution recognises the unique nature of urban areas and cities and provides for implementation of an additional legislation to establish criteria for classification, principles of governance and management and participation by residence in governance of such areas, consequently, this statute lays specific emphasis on the classification and establishment of urban areas, their management, as well as effective governance within counties

22 No of 2012 Seeks to enhance management of finances at the county government It complements the National Financial Management Bill It gives details of how funds should be managed at the County and sub-county levels

23 Ministry of Justice and Constitutional Affairs and Commission for the Implementation of the Constitution, ‘Report of the Conference on Development of a Public Participation Framework’ (24-26 September 2012) 1-4

24 Article 174

25 Article 197 reiterates this position that not more than two-thirds of the members of any county assembly or executive committee shall be of the same gender

2.2 County Governments

A county government for each county consists of a county assembly and a county executive that decentralise its functions and the provision of its services.26 The membership of the county assembly is for five years, unless declared vacant,27 and consists of qualified members28 elected by the registered voters of the wards, the number of special seat members necessary to ensure the realisation of the two-thirds gender rule, the number of members of marginalised groups including persons with disabilities and youth and the Speaker29 who is an ex official member.30

The legislative authority of a county is vested in, and exercised by its county assembly which may make laws for is effective functions and powers, exercise the principle of separation of powers over the county executive committee and receive and approve plans and policies.31Besides, it has power to summon witnesses32and is require to publish its county legislation in the Gazette for it to take effect.33The executive authority of the county is vested in and exercised by a county executive committee consisting

of the county governor and his deputy as elected34 who acts in the capacity of chief executives of the county and members appointed by the county governor with approval of the assembly, from among persons who are not members of the assembly Such membership is limited,35 are accountable to the county governor for the performance of their functions and exercise of their powers, hold office as long

26 Article 176

27 The member either dies, absent for eight sitting without permission, removed under Article 80, resigns from party or as a member, term lapses or terminated on grounds under Article 193(2).; See also article 194

28 Article 193 provides for the requirements for a ‘qualified’ and ‘non-qualified’ member

29 Article 178 provides for the election of a speaker by the county assembly from among persons who are not members of assembly who shall preside over the county assembly or another member of the assembly in case of his absence

30 The members of special seats and marginalised groups shall be nominated by political parties in proportion to the seats received in that election in that county by each political party in accordance with Article 90

31 Such plans include for the management and exploitation of the county’s resources and development and management of its infrastructure and institutions See Article 185 of the Constitution of Kenya See County Government Act for the principles

of County planning and development facilitation, objectives of county planning, obligation to plan by the country, planning

in the country, integrating national and county planning and types and purposes of county plans

as county governor is in office36and may prepare proposed legislation for consideration by the county assembly and prepare full and regular reports on matters relating to the county to the county assembly37even during transition.38

2.3 Functions and Powers of County Governments

Concurrent, original39and transfer powers are permissible.40The functions of the national government include matters that concern the general nation41 while the county government specifically include county health services, control of pollution and public nuisances, cultural activities, public entertainment and amenities, county transport, animal control and welfare, trade development and regulation, county planning and development, pre-primary education, village polytechnics, home craft centres and childcare facilities, implementation of specific national government policies on natural resources and environmental conservation, county public works and services, firefighting services and disaster management, drugs and pornography control, coordinating participation in governance at the local level and assisting in to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level

36 Article 182 provides that a vacancy in the office of county governor arises where the holder of the office either; dies, resigns

in writing addressed to the speaker of the county assembly, ceases to be elected county governor under Article 180 (2) [Where s/he is no longer eligible for election as a member of the county assembly], is convicted of an offence punishable by imprisonment for least twelve months or is removed from office under this Constitution

37 Article 183 Other main functions include to: implement county legislation; implement, within the county, national legislation to the extent that the legislation so requires; manage and coordinate the functions of the county administration and its departments; and perform any other functions conferred on it by this Constitution or national legislation

38 Article 198

39 Article 186(2) provides that a function or power that is conferred on more than one level of government is a function or power within both levels of government while subsection 3 adds that any function or power not assigned by this Constitution

or national legislation to a county is a function or power of the national government Where concurrent jurisdiction results

to conflict of laws, national law making provisions for such issues prevails over county legislation as provided under Article

2.4 The Boundaries of Counties

Boundaries may be altered but through a resolution entered by both levels of Parliament.42Such boundaries are required to take into account the population density and demographic trends, physical and human infrastructure, historical and cultural ties; the cost of administration, the views of the communities affected, the objects of devolution of government, and geographical features as was upheld

by the Supreme Court in the landmark decision between Isaac Aluoch v Independent Electoral and

Boundaries Commission and 19 others 43 The taskforce that was commissioned to perform this duty had previously erred which failed to give due regard to matters relating to the sizes of the boundaries which left some counties marginalised.44 Importantly, public participation is crucial in determining electoral boundaries.45

2.5 Relationships between Governments

Cooperation is demanded between both levels of governments to the functional and institutional integrity of the other with respect of its constitutional status and institutions through assistance, support and consultation and liaise for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.46 Disputes should be settled reasonably and alternative dispute resolution is encouraged.47 The national government may intervene by appropriate and necessary measures where the county government is unable to perform or does not operate a financial management system that is not founded on law

2.6 Suspension of County Governments

A county government may be suspended by the President in an emergency arising out of internal conflict

or war or any other exceptional circumstances However, this is only effected after an independent

42 Article 188

43 Supreme Court of Kenya Petition No 2 of 2013

44 East African Centre for Law and Justice, ‘Devolution (Implementation and Challenges) (as of 26 October 2011) <> 7 February 2014

45 See Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & 5

others [2012] eKLR

46 Article 189

47 Article 189(3) and (4) is in line with judicial principle under Article 159(2) (c) of the Constitution which provides that such alternative dispute resolution mechanisms to include negotiation, mediation and arbitration

commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified and the Senate authorises the suspension The Senate may however terminate the suspension at any time and such suspension shall not extend beyond a period of ninety days after which the relevant county government shall be held.48

3 ATTENDANT PITFALLS OF DEVOLUTION IN KENYA

Considering the fact that devolution is fairly new, it is grappling with a number of challenges For the purpose of addressing these, the subsequent paragraphs categorise this challenges into specific subsections which include devolution vis-à-vis pitfalls emerging from the Constitution or other relevant legislations on the devolution process including human rights, affirmative action, from the society general including the issue of participation, and ignorance and from the broader universal issues including the transaction of business

3.1 Devolution and Human Rights

According to Mutakha Kangu, county governments have a role in the delivery of social justice which is the primary objective of devolution49and is a measures to address systematic ethno-regional discrimination and inequality but has been challenged in the following ways.50First, devolution has been accused to be against certain inalienable rights51 including the principles of non-discriminatory and equality52 where it seeks to place academic qualifications for persons seeking the positions of Governor for instance.53The court affirmed that, the inclusion of academic qualification not only discriminated directly on the basis of status and social origin but considering the statistics on girl-child and women

48 Article 192

49 Sheila Masinde in Kenya National Commission on Human Rights ‘Nguzo za Haki’ (April 2012) Issue 11 the Devolution Issue

1 See also Article 174 of the Constitution of Kenya, 2010

50 The Equal Rights Trust & Kenya National Human Rights Commission, ‘In the Spirit of Harambee: Addressing

Discrimination and Inequality in Kenya’ XXII, 34, 258

51 They belong innately to individuals rather than being the product of state benevolence See supra note 10 at 25

52 Article 27 of the Constitution of Kenya, 2010

53 See section 24(2) (c) of the Elections Act, No 24 of 2011