Most counties have failed to enact the necessary laws for devolved functions seven years after the onset of devolution, the Council of Governors (CoG) has said.
The County Policy and Legislation Mapping Report released by CoG notes that only Lamu County has a County Spatial Plan in place, which is one of the requisite legislation for optimal functioning of any county government.
However, it adds that county planning and development is the most legislated, with all counties having County Integrated Development Plans (CIDPs), Annual Development Plans (ADPs) and a County Finance and Appropriation Act.
Proper oversight
The report details the laws, policies and regulations that have been passed by counties from 2013 to May 2019.
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It says most counties do not seem to have a complete suite of basic administrative policies, which pose a challenge to efficiency, transparency and accountability, leading to misuse of executive powers.
“County Assembly scrutiny of statutory instruments is woefully inadequate and urgent measures are required to provide better ways of scrutinising what are essentially departmental, ministerial and gubernatorial edicts,” the report reads.
It adds that counties are over-reliant on the Public Finance Management Act as a basis of developing many regulations, thereby encouraging legislative lethargy by opting for a faster process of regulation without scrutiny.
It further points out that there is a lack of proper oversight on county legislation because the Constitutional Implementation Commission (CIC), which held State agencies accountable on legislation matters, is now defunct.
Although the role was given to the Kenya Law Reform Commission, this was not followed with resources.
The report also found instances where county policies are not linked to national policy frameworks, and an overdependence on CIDPs, which change every five years depending on regime.
Outside of county planning and development, functions with the most requisite legislation include administrative functions, such as development of CIDPs, which exist in 45 counties (96 per cent); trade development regulations exist in 43 counties (91 per cent); control of drugs and pornography exists in 39 counties (83 per cent); and laws around cultural activities, public entertainment and public amenities exist in 38 counties (81 per cent).
Public nuisances
The report notes the most unlegislated function is animal control and welfare, with 40 counties (85 per cent) having no legislation on it.
This is followed by control of air and noise pollution, other public nuisances and outdoor advertising, with 33 counties (70 per cent) having no legislation on it. Thirty-two counties (68 per cent) have no legislation on county public works.
The report adds that most counties have legislated on liquor licensing, though only four have laws around public entertainment and public amenities.
Under the health function, only 10 counties have legislated on solid waste management, while under trade development, eight counties have legislation on local tourism and fair trade practices, with most focusing on trade licensing and a few on co-operatives and markets.
On county planning and development, only Busia has developed legislation on housing, electricity and gas reticulation, and energy regulation.
Further, a majority of counties have more expired bills than pending ones and passed legislation.
Inefficient culture
“This is an inefficient culture of legislating since resources are spent working on and deliberating on bills, only for them to be ‘killed’ after six months or left pending until they legally expire,” the report notes.
The report sought to establish how many policies and laws each county government has in relation to its functions, what is missing from each, and what policy and legislation needs to be developed to fill the gap.
The methodology employed for the assignment was desktop research, where the council received information directly from counties, and relied on information provided by the County Assemblies Forum and the Society of Clerks at the Table on the laws passed and the bills still awaiting debate in the assemblies.
The report notes a lack of policies means there is little incentive and basis for legislative development, with counties legislating in the absence of policies.
“In this second phase of devolution, it is critical that the counties are able to develop policy and legislation for effective and efficient performance of their functions. This will also assist the counties to raise more revenue to facilitate their own operations and ensure service delivery,” it says.
