Showdown looms as Senate seeks to amend devolution laws

By Stephen Makabila  

In December last year, former President Kibaki commended the 10th Parliament for being the most active in the country’s history.

 “Indeed, Parliament has passed over 227 Bills in the last ten years. Last year alone will go down in history as the busiest legislative calendar with over 90 Bills passed,” the former President said during his special address to the House.

Among the over 90 Bills passed by the 10th Parliament last year were the prerequisite laws to implement devolution. These laws provided a legal framework to anchor the country’s transition from a central government to a devolved system.

They included the Public Finance Management Act, County Government Act, Inter-governmental Relations Act, Transition to Devolved Government Act and the Urban Areas and Cities Act.

But the Senate now plans to overhaul devolution laws passed by the 10th Parliament, over glaring loopholes that could derail implementation of devolved units.

The County Government Bill for example caused a standoff between the House and President Kibaki, who rejected attempts to empower the governor to chair the County Security Council.

MPs backed off by reinstating the security function to the national government and deleting another clause that provided for the redeployment of the Provincial Administration to counties.

Senate Majority Leader Kithure Kindiki (Jubilee), told The Standard On Sunday  there were plans to revise devolution laws passed by the 10th Parliament to seal glaring loopholes likely to derail implementation of devolved governments.

Committees

The 47 County governments are also to come under close scrutiny by the Senate, after the planned creation of the Counties Accounts Committee and Counties Investment Committees as additional committees of the House to play an oversight role.

Prof Kindiki noted that devolution laws need to be re-looked at because there are multiple loopholes.

“The loopholes are many but I cannot name them at this stage. We have to revise the laws to operationalise devolution and move forward,” he said.

Lawyer James Mwamu, the President of the East African Law Society  (EALS), says the Senate move could cause friction with the National Assembly.

“We know powers of the Senate were diluted by the 10th Parliament. But although the Senate is the custodian of county governments, they need the same MPs in the lower House to initiate the Bills they are talking about, and the lower House may resist ceding the power it already has,” says Mr Mwamu.

Irrelevant

He however, warns a strong National Assembly could make the Senate irrelevant and senators should fight for their space early enough.

“Senators should push for revision of laws they feel are weak or of ambiguity and watch how the current Parliament will behave. The public will equally be watching whether members of the National Assembly want to frustrate devolution,” added Mwamu who is also a member of the Law Society of Kenya Council.

Confusion has largely clouded take-off of county governments, with power struggle between governors and County Commissioners, complains over poor infrastructures and inadequate funding taking centre stage.

While President Uhuru Kenyatta has declared he would support devolution at all costs, most senators feel the Government should withdraw County Commissioners and give elected governors space to run the counties.

 Machakos Governor Alfred Mutua had earlier hinted to The Standard on Sunday that if pushed to the wall, the 47 governors would seek a constitutional amendment by collecting over a million signatures from the public.

He said the amendment would also seek to clear the air on the role of the Provincial Administration in an era of a devolved system.  “We want a clear and explicit definition of who is in charge at the county,” added Dr Mutua.

They will further seek to increase funding to counties from the national kitty from the current 15 per cent annually to between 35 and 40 per cent.

“Devolution is about money. If you do not have adequate funds under your control, you are not in charge,” he said.

Lack of clarity

Some governors have also indicated they were not ready to have the Treasury carry out the budgeting process for them, and that resources generated at the county level should remain within their, and not forwarded to the Treasury as demanded by the State.

Mwamu concurs that devolution laws are not clear on the relationship between the national government and county governments, and there was lack of clarity on funding of counties and the equalisation fund.

“The 15 per cent allocation of the national revenue to counties is just like what defunct councils used to get under the Local Authority Transfer Fund,” added Mwamu.

Apart from revising devolution Bills, Kindiki has indicated other legislations of priority will be Constitutional Bills to do with the Senate, whose deadline is August 27.

He said most of the Bills to be generated by the Senate would largely depend on the guide of the 6th schedule of the new Constitution.

“We are also going to develop some Bills based on the working manifesto of the Jubilee government, especially when it comes to priority areas,” he added.

Kakamega Senator Bonny Khalwale had earlier said the Senate was keen to thrash out the flaws in the CDF Act, as pointed out by the Commission for Implementation of the Constitution.

Kibaki had emphasised that devolution will bring Government closer to the people and will also facilitate the involvement of wananchi in decision making at all levels of governance.

It remains to be seen how the Senate will go about revising areas of the devolution laws they feel are not strong, and whether Parliament will pass them or not.