Draft Interim Report on Devolved Government in Kenya...LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED GOVERNMENT Task Force on Devolved Government of Kenya Mutakha Kangu Lucy

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

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LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON

DEVOLVED GOVERNMENT

Task Force on Devolved Government of Kenya

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 Kipchumba Murkomen

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

Wednesday, 20th April 2011

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 25th 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,

Mutakha Kangu Chairman Task Force on Devolved Government in Kenya

DRAFT FINAL REPORT – FOR TFDG EYES ONLY

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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 ______________________________________

Fatuma 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 ______________________________________

INTERIM REPORT –TFDG CONSULTATION DOCUMENT

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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 INTRODUCTION _______________________________________________ 1

1.2 MANDATE OF THE TASK FORCE _____________________________________ 1

1.3 THE POWERS _________________________________________________ 2

1.4 TERMS OF REFERENCE AND THEIR INTERPRETATION _______________________ 2

1.5 APPROACH TO AND SCOPE OF THE ASSIGNMENT ___________________________ 2

1.6 CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT _____________________ 5

1.7 REPORT PURPOSE ______________________________________________ 5

1.8 ORGANIZATION OF THE REPORT _____________________________________ 6

1.9 THE NEXT STEPS ______________________________________________ 7

2 CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT __________________________________________ 9

2.1 INTRODUCTION _______________________________________________ 9

2.2 THE CENTRALIZED COLONIAL STATE_________________________________ 10

2.3 THE POST-INDEPENDENCE QUASI-FEDERAL SYSTEM ______________________ 11

2.4 PERPETUATION OF THE CENTRALIZED STATE ___________________________ 13

2.5 THE PROBLEM OF CENTRALIZATION _________________________________ 14

2.6 THE PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT ________________ 16 2.6.1 Building Blocks for Cooperative and Competitive Counties __________________________ 17 2.6.2 Growing and Sustaining County Cooperative Competitiveness _______________________ 19 2.6.3 Paradigm Shift in County Public Service Delivery ________________________________ 19 2.6.4 Building and Maintaining Quality Places ______________________________________ 20 2.6.5 Managing Counties for Prosperity __________________________________________ 21

2.7 CONCLUSIONS _______________________________________________ 22 2.7.1 Effective Political Parties _________________________________________________ 23 2.7.2 Leadership, Ethics and Integrity and the Constitution of Kenya 2010 ___________________ 23 2.7.3 Unity in Diversity ______________________________________________________ 26 2.7.4 Skilled Human Resources ________________________________________________ 26 2.7.5 Sustainable and Equalising Funding _________________________________________ 26 2.7.6 Citizen Participation ____________________________________________________ 26

3 CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA ____ 27

3.1 CONCEPT OF A CONSTITUTION _____________________________________ 27

3.2 THE CONCEPT AND THEORY OF DEVOLUTION ___________________________ 27 3.2.1 Independent Commissions as Shared Institutions ________________________________ 28 3.2.2 Independent Offices as Shared Institutions ____________________________________ 30

3.3 OPERATIONALIZATION OF SHARED INSTITUTIONS ________________________ 31


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3.4 THE FORM OF DEVOLUTION ______________________________________ 31 3.4.1 The Principle of Distinctness ______________________________________________ 32 3.4.2 The Principle of Inter-dependence __________________________________________ 32

3.5 OBJECTS AND PRINCIPLES OF DEVOLUTION ____________________________ 34

3.6 ARCHITECTURE AND DESIGN OF DEVOLUTION IN KENYA ____________________ 34

3.7 THE VALUE FOUNDATIONS OF THE CONSTITUTION ________________________ 36 3.7.1 The Fundamental Values and Principles of Good Governance ________________________ 37 3.7.2 Sovereignty of the People ________________________________________________ 39 3.7.3 Service to the People ___________________________________________________ 39 3.7.4 Leadership and Integrity _________________________________________________ 40 3.7.5 Participation and Inclusiveness ____________________________________________ 42 3.7.6 The Important Role of Political Parties _______________________________________ 43

3.8 CONCLUSIONS _______________________________________________ 43

4 LEVELS AND UNITS OF DEVOLVED GOVERNANCE ____________ 44

4.1 INTRODUCTION ______________________________________________ 44

4.2 LOCAL GOVERNANCE ___________________________________________ 44 4.2.1 Principles of Local Governance ____________________________________________ 44 4.2.2 Levels of Governance ___________________________________________________ 46

4.3 RURAL AREAS _______________________________________________ 47

4.4 CITIES AND URBAN AREAS ________________________________________ 47 4.4.1 Cities and Urban Areas in Development ______________________________________ 47 4.4.2 Context of Cities and Urban Areas in Kenya ____________________________________ 49

4.5 CLASSIFICATION OF CITIES AND URBAN AREAS __________________________ 50 4.5.1 Capital City and County of Nairobi __________________________________________ 51 4.5.2 Conferring of City Status _________________________________________________ 52

4.6 CHALLENGES FOR FORTY SEVEN COUNTIES ____________________________ 54 4.6.1 Overview ___________________________________________________________ 54 4.6.2 Structural Overlaps ____________________________________________________ 54 4.6.3 Capacity Building ______________________________________________________ 55 4.6.4 Cross County Planning and Development _____________________________________ 55 4.6.5 Economies of Scale ____________________________________________________ 57

4.7 POLICY AND LEGAL GAPS ________________________________________ 58 4.7.1 Areas for Further Decentralisation __________________________________________ 58 4.7.2 Policy Options and Recommendations _______________________________________ 63

4.8 CONCLUSIONS _______________________________________________ 65 4.8.1 Policy ______________________________________________________________ 65 4.8.2 Legislation __________________________________________________________ 66 4.8.3 Governance __________________________________________________________ 67 4.8.4 Restructuring ________________________________________________________ 68

5 STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE __ 69

5.1 INTRODUCTION ______________________________________________ 69

5.2 PRINCIPLES OF GOVERNANCE _____________________________________ 69

5.3 LEGISLATIVE ARM OF COUNTY GOVERNMENTS __________________________ 70 5.3.1 Introduction _________________________________________________________ 70 5.3.2 Composition, Qualifications and Election of County Assembly Members ________________ 72 5.3.3 Qualifications for Election as a Member of a County Assembly _______________________ 72 5.3.4 Mandate and Functions of the County Assembly _________________________________ 78 5.3.5 Removal from Office ___________________________________________________ 80 5.3.6 Size and Population of a County Ward ________________________________________ 81 5.3.7 The Asymmetrical Transfer of Legislative Functions ______________________________ 83 5.3.8 County Assembly Legislation ______________________________________________ 83 5.3.9 Conflict of Laws _______________________________________________________ 84 5.3.10 Policy Issues and Recommendations on Legislation ______________________________ 84

5.4 EXECUTIVE ARM OF GOVERNMENT __________________________________ 86 5.4.1 Composition and Structure of the County Executive ______________________________ 86


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5.4.2 Election, Appointment and Qualifications of the County Executive ____________________ 89 5.4.3 Mandate and Functions of the County Executive _________________________________ 99 5.4.4 Removal from Office __________________________________________________ 103 5.4.5 Conclusions on the County Executive _______________________________________ 104

5.5 ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT _______________ 105 5.5.1 Historical Context ____________________________________________________ 105 5.5.2 Devolution of Government ______________________________________________ 106

5.6 RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION ___________________ 109 5.6.1 National Administration ________________________________________________ 109 5.6.2 Functions the Proposed National Administration _______________________________ 110 5.6.3 Proposed Structure of the National Administration ______________________________ 112 5.6.4 Security Management in the Counties _______________________________________ 113 5.6.5 Transition Issues _____________________________________________________ 113

5.7 CONCLUSIONS _______________________________________________115

6 FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY IN KENYA ____________________________________ 117

6.1 INTRODUCTION ______________________________________________ 117

6.2 PRINCIPLES OF FUNCTIONAL AND COMPETENCY ASSIGNMENT _______________ 118 6.2.1 General Principles for Functional Distribution _________________________________ 118 6.2.2 Principles and Criteria for Unbundling Functions and Competencies __________________ 124

6.3 FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE _______________ 125 6.3.1 Lessons from Theory and Practice _________________________________________ 125 6.3.2 Consequences of Ineffective Functional and Competency Assignment _________________ 126

6.4 FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA ___________________ 127 6.4.1 The Constitutional Provisions ____________________________________________ 127 6.4.2 Assignation to the Levels of Government in Kenya ______________________________ 130 6.4.3 The Overall Architecture: Modes, Roles and Structure ____________________________ 131 6.4.4 Unbundling of Functional Competencies _____________________________________ 132 6.4.5 Functional Distribution under the Constitution of Kenya 2010 ______________________ 134

6.5 COSTING OF ASSIGNED FUNCTIONS AND COMPETENCIES ___________________ 134

6.6 ORGANIZATIONAL OPTIONS FOR EFFECTIVE SERVICE DELIVERY ______________ 136

6.7 CONCLUSIONS ______________________________________________ 137

7 INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS _______________________________________ 140

7.1 INTRODUCTION _____________________________________________ 140

7.2 INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC SERVICE DELIVERY 141 7.2.1 Why Integrated Development Planning? _____________________________________ 141 7.2.2 Linking Integrated Development Planning and Effective County Governance ____________ 142

7.3 OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT PLANNING ___ 143 7.3.1 Constitutional Basis for Integrated County Development Planning in Kenya _____________ 143 7.3.2 Proposals for Integrated Development Planning in Kenya _________________________ 146

7.4 CONCLUSIONS ______________________________________________ 148

8 INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _ 150

8.1 INTRODUCTION _____________________________________________ 150

8.2 SETTING THE CONTEXT: A BRIEF OVERVIEW OF KENYA’S ADMINISTRATIVE SYSTEM _ 150

8.3 RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS ___________ 152 8.3.1 Rationale for Intergovernmental Relations ___________________________________ 152 8.3.2 Principle of Fidelity to the Nation __________________________________________ 152 8.3.3 Principle of Unity in Diversity ____________________________________________ 152 8.3.4 Principle of Cooperation ________________________________________________ 152 8.3.5 Principle of Interdependence _____________________________________________ 152 8.3.6 Principle of Oversight __________________________________________________ 152

8.4 EMERGING KEY ISSUES ________________________________________ 153


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8.5 MECHANISMS OF CO-ORDINATION AND CO-OPERATION ___________________ 154 8.5.1 National Government and County Government ________________________________ 154 8.5.2 Views Expressed by Kenyans _____________________________________________ 154 8.5.3 Recommendations ____________________________________________________ 155 8.5.4 Inter-County Governmental Relations _______________________________________ 157 8.5.5 Recommendations ____________________________________________________ 158 8.5.6 Intra County Co-operation ______________________________________________ 158 8.5.7 Views Expressed by Kenyans _____________________________________________ 159 8.5.8 Recommendations ____________________________________________________ 159

8.6 CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES ______________________ 160 8.6.1 Concept of Cooperative Government ________________________________________ 160 8.6.2 Need for Joint Committees and Joint Authorities _______________________________ 160 8.6.3 The Role of Senate ____________________________________________________ 160

8.7 INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _______________ 161 8.7.1 Intergovernmental Dispute Resolution ______________________________________ 161 8.7.2 Comparative Experiences of Dispute Resolution Mechanisms in Africa ________________ 162 8.7.3 Recommendations ____________________________________________________ 163

8.8 INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT _______________ 163 8.8.1 Views Expressed by Kenyans _____________________________________________ 164 8.8.2 Recommendations ____________________________________________________ 164

8.9 CONCLUSIONS ______________________________________________ 165

9 CITIZEN PARTICIPATION AND PROTECTION OF MINORITIES AND MARGINALISED GROUPS ________________________________ 166

9.1 INTRODUCTION _____________________________________________ 166

9.2 CONCEPT OF INTEGRATED CITIZEN PARTICIPATION ______________________ 166

9.3 BASIC ELEMENTS OF CITIZEN PARTICIPATION __________________________ 168 9.3.1 Citizen Participation as a Right ___________________________________________ 168 9.3.2 Public Participation as a Function of Transparency in Democratic Governance ___________ 171 9.3.3 Public Participation as an Imperative of Influencing Decision-Making _________________ 172 9.3.4 Access to Information and the Right to Effective Democratic Citizenship _______________ 173 9.3.5 Citizen Participation and Meaningful Dialogue _________________________________ 174 9.3.6 Citizen Participation as a Condition for Accountability ____________________________ 175 9.3.7 Citizen Participation for Transparency ______________________________________ 175 9.3.8 Citizen Participation as a Normative Basis of Equity _____________________________ 176

9.4 PROCESS AND MODALITIES OF PUBLIC PARTICIPATION ____________________ 178

9.5 PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS __ 179 9.5.1 Principles for Protecting and Inclusion of Marginalised Groups _____________________ 179 9.5.2 Definition of Terms ___________________________________________________ 181 9.5.3 Problems Faced by the Minorities and Marginalised Groups & Communities_____________ 186 9.5.4 Solutions Provided Under the New Constitution ________________________________ 190 9.5.5 Recommended Legal, Policy and Institutional Interventions ________________________ 193

9.6 CONCLUSIONS ______________________________________________ 197

10 PUBLIC COMMUNICATION AND CIVIC EDUCATION IN DEVOLVED

GOVERNANCE ________________________________________ 199

10.1 COMMUNICATION AND DEVOLVED GOVERNANCE ______________________ 199 10.1.1 Communication, Information, Governance and Development _______________________ 200 10.1.2 The Media and the Implications of the New Constitution __________________________ 204 10.1.3 Key Issues and Recommendations _________________________________________ 206 10.1.4 Recommendations ____________________________________________________ 209 10.1.5 Outstanding Issues____________________________________________________ 211

10.2 CIVIC EDUCATION ON DEVOLVED GOVERNMENT _______________________ 211 10.2.1 Strategic Communication _______________________________________________ 212 10.2.2 Civic Education on Devolved Government ____________________________________ 212

10.3 CONCLUDING REMARKS ______________________________________ 219

11 BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE _____ 221

11.1 INTRODUCTION ____________________________________________ 221


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11.1.1 Public Service _______________________________________________________ 221 11.1.2 Human Resource Management Issues in the Public Service ________________________ 222

11.2 COMPARATIVE ANALYSIS ______________________________________ 223 11.2.1 Germany __________________________________________________________ 223 11.2.2 United Kingdom _____________________________________________________ 224 11.2.3 South Africa ________________________________________________________ 224

11.3 COUNTY PUBLIC SERVICE _____________________________________ 224 11.3.1 Staffing of County Governments ___________________________________________ 224 11.3.2 Norms and Standards __________________________________________________ 225 11.3.3 Promotion of Values and Principles in the County Public service _____________________ 226 11.3.4 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 INTRODUCTION ____________________________________________ 234 12.1.1 Fiscal Decentralization Conceptual Framework ________________________________ 234 12.1.2 Principles of Public Finance ______________________________________________ 235

12.2 REVENUE ________________________________________________ 236 12.2.1 Inter-Governmental transfers ____________________________________________ 236 12.2.2 The Principle of Funds Must Follow and Match Functions _________________________ 237 12.2.3 County Own Revenues _________________________________________________ 246 12.2.4 Grants and Donations __________________________________________________ 249

12.3 BORROWING ______________________________________________ 250 12.3.1 Internal and External Borrowing __________________________________________ 250 12.3.2 Loan Guarantees _____________________________________________________ 251 12.3.3 Institutional Framework for Coordination of Borrowing and Grants __________________ 251

12.4 PUBLIC DEBT MANAGEMENT IN COUNTIES __________________________ 253 12.4.1 Objectives of Public Debt Management ______________________________________ 254 12.4.2 Principles and Techniques for Public Debt Management __________________________ 254 12.4.3 Framework for County Public Debt Management _______________________________ 255

12.5 PLANNING AND BUDGETING ____________________________________ 255 12.5.1 County Planning and Budgeting Linkages ____________________________________ 255 12.5.2 Budget Process ______________________________________________________ 258

12.6 EXPENDITURE CONTROL ______________________________________ 261 12.6.1 Expenditure Controls Framework __________________________________________ 261 12.6.2 Budgetary Controls ___________________________________________________ 263 12.6.3 Procurement/ Supply Chain Management ____________________________________ 265 12.6.4 Role of Controller of Budget _____________________________________________ 267 12.6.5 Role of Accounting Officer _______________________________________________ 269 12.6.6 Oversight Role of the County Assembly ______________________________________ 271 12.6.7 County Internal Audit Function ___________________________________________ 273

12.7 FINANCIAL REPORTING AND AUDIT _______________________________ 279 12.7.1 County Financial Accounting and Reporting __________________________________ 279 12.7.2 Role of Auditor General ________________________________________________ 282

12.8 FINANCING COUNTY INFRASTRUCTURE AND INVESTMENT _________________ 283 12.8.1 Role of Counties in Infrastructure Development and Delivery _______________________ 283


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12.8.2 Infrastructure Gaps and Equitable Development in Counties _______________________ 284 12.8.3 Approaches for the Development and Financing of County Infrastructure _______________ 284 12.8.4 County Governments Bank and Loans Authority (CGBLA) _________________________ 286 12.8.5 Efficiency, Sufficiency and Optimization of County Infrastructure ____________________ 288

12.9 INSTITUTIONAL AND TRANSITIONAL ISSUES __________________________ 289 12.9.1 Institutions and Funding of Transitional Arrangements ___________________________ 289 12.9.2 Framework for the Audit and Re-Allocation of Existing Infrastructure Assets ____________ 289

12.10 CONCLUSIONS _____________________________________________ 290 12.10.1 Summary ________________________________________________________ 290 12.10.2 Conclusion _______________________________________________________ 292

13 THE TRANSITION ROAD MAP ______________________________________ 294

13.1 INTRODUCTION ____________________________________________ 294

13.2 ORGANIZING THE TRANSITION ROAD MAP __________________________ 295

13.3 TRANSITION AREAS _________________________________________ 296

13.4 PROPOSED ENABLING LEGISLATION _______________________________ 300

13.5 PUBLIC COMMUNICATIONS IN SUPPORT OF THE TRANSITION PROCESS_________ 300

13.6 CONCLUSIONS _____________________________________________ 301

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 African Commission on Human and Peoples Rights

AIA Appropriations in Aid

AIE Authority to incur Expenditure

BOO Build-Own-Operate

BOOT Build-own-operate-transfer

BOT Build Operate Transfer

CBD Central Business District

CCN City Council of Nairobi

CDF Constituency Development Fund

CEDA Convention on the Elimination of All Forms of Discrimination

CIC Constitution Implementation Commission

CILOR Contribution in lieu of rates

CIPFA Chartered Institute of Public Finance and Accountants

COAG the Council of Australian Governments

CoE Committee of Experts

CoK Constitution of Kenya

CP Community Participation

CRA Commission on Revenue Allocation

CSO Civil Society Organisation

EU European Union

GIS Geographic Information System

GJLOS Governance, Justice, Laws and Order Sector

IASB International Accounting Standards Board

ICPAK the Institute of Certified Public Accountants of Kenya

ICT Information and Communication Technology

IEBC Independent Electoral and Boundaries Commission

IFMIS Integrated Financial Management Information System

IFRS International Financial Reporting Standards

IGR Intergovernmental Relations


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IIEC Interim Independent Electoral Commission

ILO International Labour Organisation

IPSAS International Public Sector Accounting Standards

JICA Japan International Cooperation Agency

KACC Kenya Anti-Corruption Commission

KEPSA Kenya Private Sector Alliance

KRA Kenya Revenue Authority

LA/LAs Local Authorities

LASDAP Local Authority Service Delivery Action Plan

LATF Local Authority Transfer Fund

LPAs Local Purchase Orders

LSK Law Society of Kenya

LSOs Local Service Order

MoSPS Ministry of State for Public Service

MPs Members of Parliament

MTEF Medium Term Expenditure Framework

NARC National Rainbow Coalition

NGOs Non-governmental Organisations

NTA National Taxpayers Association

PA Provincial Administration

PCC President‘s Coordinating Council

PCM Project Cycle Management

PETS Public Expenditure Tracking Surveys

PFMR Public Financial Management Reform Programme

PPOA Public Procurement Oversight Authority

PPP Public-private partnerships

PRSP Poverty Reduction Strategy Papers

PSC Public Service Commission

RMLF Road Maintenance Levy Fund

RPRLGSP Rural Poverty Reduction and Local Government Support

Programme


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SALGA South Africa Local Government Association

SMS Short Message Service

SWAP Sector Wide Approaches

TFDG Task Force on Devolved Government

TJRC Truth Justice and Reconciliation Commission

TORs Terms of Reference

UN United Nations

UN-Habitat 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: Kenya‘s Projected Population Growth Pattern ______________________ 17

Figure 2.2: Building Blocks for Cooperative Competitive Counties in Kenya __________ 18

Figure 2.3: Challenge of Kenya‘s 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: Fiscal Decentralisation Conceptual Framework __________________ 235

Figure 12.2: Institutional Framework for Coordination of Borrowing and Donor Grants 253

Figure 12.3: Planning & Budgeting Framework ___________________________ 256

Figure 12.4: SWAP MTEF Framework _________________________________ 260

Figure 12.5: Financial Control Systems in County Governments ________________ 262

Figure 12.6: County Infrastructure Financing and Development ________________ 286

Figure 13.1: Conceptualizing the Transition Process to Full Establishment of County

Governments _________________________________________ 295


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LIST OF TABLES

Table 1.1: Summary of the Thematic Areas ________________________________ 3

Table 1.2: Synopsis of Key Work Activities and Deliverables from the Terms of Reference 4

Table 5.1: Advantages and Disadvantages of the Simple and Absolute Majority Electoral

Systems _______________________________________________ 97

Table 6.1: Dealing with lack of clarity in functional assignment between different levels of

government ____________________________________________ 126

Table 6.2: Constitution of Kenya, 2010 Provisions relevant to Functional Assignment and

Public Service Delivery ____________________________________ 127

Table 6.3: Disaggregating the Competencies for Public Service Delivery ___________ 133

Table 6.4: Suggested Definition of Competencies __________________________ 133

Table 7.1: Key Constitutional Provisions relevant to Integrated County Development

Planning in Kenya _______________________________________ 143

Table 12.1: SWAP Process _________________________________________ 259

Table 12.2: County Infrastructure facilities that can be commercialized or developed

through public-private partnerships __________________________ 288

Table 13.1: Transition in Phase 1 ____________________________________ 297

Table 13.2: Transition in Phase 2 ____________________________________ 298

Table 13.3: 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 TASK FORCE MANDATE, TERMS OF REFERENCE

AND THEIR INTERPRETATION

1.1 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 3rd

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. Undertake stakeholder and public consultation to develop consensus on

options of structures and institutions of devolved government.

f. Recommend policy frameworks for implementation of devolved government as

provided for in the Constitution.

g. 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

f. Nominate acting –chairperson from amongst the members in the absence of

the Chairperson.

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;

d. the taxes and charges that each County may impose;

e. 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;

f. assistance to County governments in building their capacity to govern

effectively and provide the services for which they are responsible; and

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. 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.

2. 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.

3. Working Retreats: working retreats were used to consolidate issues and

prepare the various outputs required of the TFDG.

4. Consultation Meetings: the TFDG held working consultations with various

government ministries, development partners and non-state actor groups to

develop understanding of the issues.

5. 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.

6. 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

# THEMATIC GROUP NAME AREAS OF FOCUS

1 Financial resources and management and

transitional issues Financial resources and management

Transitional issues

2 Cooperative and inter-governmental

relations and levels of governance, cities and urban areas

Cooperative and intergovernmental relations levels of governance

Cities and urban areas

3 Citizen participation, protection of

marginalized groups and communities,

political governance and leadership and communication and civic education

Public participation and protection of

marginalized groups and communities

Political governance and leadership

4 Public administration, human resource,

capacity building and functional distribution and service delivery.

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. Cooperative Government, Inter-Governmental Relations and Levels of

Governance

2. Functions of and Service Delivery by County Governments

3. Financial Resources and Management in County Governments

4. Political Governance, Leadership, Accountability and Integrity in County

Governments

5. 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 (WP) Description Key deliverables

Work Package 1 Prepare a detailed work plan indicating the detailed milestones and timelines and present to the same to the Steering Committee.

Detailed Work Plan

Work Package 2 Undertake studies and make proposals for effective implementation of devolution structures consistent with the provisions of the Constitution.

Internal and External Study Reports

Minutes of Meetings

Work Package 3 Commission studies or researches as are necessary for the effective execution of its mandate.

Internal and External Study Reports

Work Package 4 With reference to specific provisions of the Constitution, collect and collate public views on how implementation of the devolved government should be structured.

Consultation Concept Note

County Consultation Reports

Work Package 5 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.

County Visits

International Symposium Proceedings

Work Package 6 Make proposals on appropriate legislation to anchor and implement the devolved government; and

Drafting Instructions

Draft Bills

Work Package 7 Make monthly reports or as may be required by the Steering Committee.

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


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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 CONTEXT AND PROMISE OF DEVELOPMENTAL

DEVOLVED GOVERNMENT

2.1 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

injustices; and cut-throat

political competition and

intolerance2. Box 2.1

summarises some of the

perspective of citizen‘s about

this history.

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

BOX 2.1: COUNTY VISIT SUBMISSIONS ON THE HISTORICAL PERSPECTIVE

Struggle for a constitution that addresses equity

and equality for all

Poor services, insecurity, poverty, discrimination in appointments to key state jobs

Country divided based on inequalities in social, economic, political development

Discriminatory policies have contributed to underdevelopment of the northern Kenya sub-region

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 system-

achieved 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; extra-

judicial 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 façade of

constitutional democracy-all the institutions, processes and procedures but with no

practice of the values of constitutional democracy - as having ‗constitutions without

constitutionalism‘8.

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 country‘s 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

developmental devolved

government must yield

functional development

for the estimated 64

million Kenyans in the

year 2030 (see Figure

2.1). By this we mean that

the era where hospitals,

schools and other

facilities were built,

without the requisite

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.

BOX 2.1: COUNTY VISIT SUBMISSIONS ON EXPECTATIONS OF DEVOLVED GOVERNMENT

Devolved government should lead to national renewal

Nation built on equity and equality for all Kenyans

An inclusive nation where everyone feels they belong

Equal opportunity for all

Design of policies that reduce inequality in the country

Ensure positive relations between the people and their

leaders

Reduce the adverse effects of politics on governance

Bring the government closer to the people

Devolved governments as a platform for accessing

rights enshrined in the constitution


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Figure 2.1: Kenya’s 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 metropolitan-

region. All public policies are created by local governments with narrow


Page | 18

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 world‟s population already lives in cities, generating more than 80

per cent of global GDP today. Only 600 urban centers, with a fifth of the

world‟s 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 wouldn‟t

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 co

Draft Interim Report on Devolved Government in Kenya...LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED GOVERNMENT Task Force on Devolved Government of Kenya Mutakha Kangu Lucy

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