Audit report: Old laws are killing devolution

Kakamega governor Wycliffe Oparanya address the media after addressing the county assembly of Busia on the Lake Region Economic Block.

Old laws that are not in tandem with the current constitution have been identified among obstacles to devolution.

An audit of national and county policies and laws has found that outdated laws still governing devolved functions must be addressed for to devolution work. 

The audit found that some of these old laws do not reflect the new roles of county governments

The audit, commissioned by Council of Governors (CoG) and Kenya Law Reform Commission (KLRC) concluded that both levels of government do not have the capacity to develop laws and policies that are compliant with the current constitution. 

Audit areas

It focused on health, public finance management, agriculture, trade and investments, land and physical planning, urban development and natural resource management.

The audit found that there is a persistence of the old order across all the sectors reviewed. It  found that in all the sectors, majority of the laws applicable are older than the current Constitution.

It found that in some instances laws that are passed at the national level contradict each other, revealing low levels of coordination, even among players within the same level of government.

“A glaring example of this is the contradictory and confusing provisions in the laws relating to land,”  states the report.

The audit found out that while the Constitution provided for two transition phases (from 2010 to 2013 and 2013 to 2015) for unpacking and clarifying government competencies at the two levels, this goal was not achieved.

The audit calls for urgent review of all the national laws and regulation relating to health to align them to the Constitution. It also recommends the decentralisation of regulatory services to ensure effective supervision of health service provision across the country.

Further, the audit recommends that, since elections are held in August, the budget cycle should begin earlier (currently, the cycle begins on August 30) in the preceding financial year to ensure that it is passed before the polls.

It calls for a remedy to delays in the passing of the County Allocation of Revenue Act (CARA).

In agriculture, the audit shows that most of the laws governing the sector require an overhaul to comply with the Constitution.

“The Agriculture ministry has many institutions whose mandate overlaps with county governments," states the report.

Infrastructural projects

On infrastructure, the audit recommends a review of the Public Private Partnership Act, 2012 make it easier for both National and County Governments to finance huge infrastructural projects.

Also recommended for review is the Physical Planning Act to reflect extensive post-2010 constitution changes. The audit also found that the Community Land Act which does not reflect the roles of the county governments and the National Land Commission. 

It also recommends that the proposed law on the Ward Development Fund provide for a bottom-up planning and utilisation of the fund to make it a truly grassroot fund.

On trade and investments, the audit recommends a review of the Kenya Accreditation Service (KENAS) and Export Promotion Council (EPC). Micro and Small Enterprises) Bill, (Senate bill No. 12 of 2015) should also  be reviewed

On the National Slum Upgrading and Prevention Policy, the audit recommends that it must include the role of counties in ensuring proper human settlements and housing.

Urban areas

According to the audit, the Urban Areas and Cities Act should also be reviewed to clearly indicate the roles and limits of National Government, county government entities, and the National Land Commission on issues of urban planning and development.

The audit also calls for review of the Forest Conservation and Management Act 2016 to recognise the central role that counties play in conserving forests. It also recommends the review of the Mining Act to provide for cooperation and consultation between the national government and county governments.

The audit found that the Water Act 2016 does not provide clearly for the division and alignment of functions between the national government and the county governments.

Receiving the report, CoG chairman Wycliffe Oparanya said some national laws need to be repealed and others amended to ensure conformity with the Constitution.