Devolution Experts: Implement devolution policy to fix what is ailing County governments in Kenya

The predominant trend established by this assessment is that whereas, substantial progress has been made in the implementation of the devolved system in Kenya through establishment of the County Governments and initial transfers of functions and resources, there are systemic countervailing factors which threaten and are already undermining successful realization of the great promise of developmental devolved governance system for the people of Kenya.

These threats are manifest in the dualistic, double-speak and diametrically opposed rhetorical public statements by the political elite on their commitment to full implementation of the devolved system on the one hand and the actual policy, executive administrative and political choices being made on the other.

As things stand therefore, whereas transition to devolution is in full motion, some components of it are headed in the wrong, if not reverse, direction while others are static. These are presented and analyzed in detail in this report.

In view of the above realities, the assessment proposes that TDF adopts eternal vigilance anchored in multi-agency and multi-level approach as a means of safeguarding the gains for the people of Kenya in the Constitution of Kenya 2010 (CoK 2010) in general and Devolution in particular.

Key issues identified in this report are:

 

1. Devolution Policy

The principal policy on devolved government is being reviewed through a process led by the Ministry of Devolution and Planning.

The rationale for this review is that the TFDG Sessional Paper was formulated prior to the coming into being of the County and National Governments; ‘It has therefore become necessary to revise the policy to address some of the emerging issues that were not adequately addressed when the policy was first developed.

 On 20^th May, 2014, the draft review Sessional paper was subjected to a Stakeholder Roundtable by the CIC at the Kenya School of Government (KSG). The status of the review process could not be ascertained as at the time of this assessment.

The rushed policy review process is deemed premature and suspect.

Further, the policy entertains illegalities by purporting to divest statutory mandate and power from the Transition Authority (TA) and vesting the same in the Ministry of Devolution and Planning (MDP).     

The draft reviewed Sessional Paper is further silent on its consequences on existing devolution statutes such as the County Governments Act, the Urban Areas Act, the Transition to Devolved Government Act and the Inter-Governmental Relations Act.

The actual status of the policy review cannot be readily ascertained, the County Governments Act has been amended to establish the County Development Boards. Constitutionality of this amendment is the subject of judicial proceedings.

There was also the abortive attempt to amend the Transition to Devolved Government Act to disband the TA. This will have the effect of disbanding the TA and creating a dangerous lacuna in the management of the transition process.

This is critical when viewed together with the fact that the CIC’s constitutional and statutory mandate expires on 27^th August 2015.

"We call for the adoption of an agreed devolution policy to avoid the ongoing conflicts between county and national government and to prevent encroachment of county roles by the national institutions."

 

2. Service Delivery Policies and Transfer of Functions

There are concurrent policies and policy review processes at the county and national government levels that have a direct bearing on service delivery in terms of standards and norms. e.g.  health sector management, early childhood development and shift in road infrastructure development which involves concessionning to private entities in partnerships with financial institutions.

Glaring capacity gaps in the origination, formulation, implementation and monitoring and evaluation of policies has so far been isolated as a common factor in all the Counties.

The TA has done initial analysis and unbundling of some of the functions set out in Part 2 of the Fourth Schedule of CoK 2010 in respect of functions assigned County Government. This process is not comprehensive and is informed by historical costs which are widely viewed as understated. The implication of this is that financial resources are being transferred to counties on the basis of historical costing.

Fiscal decentralization is preceding transfer of functions in some cases in violation of the Constitution under Article 10 and Chapter Twelve. 

In some instances transferred functions are not allocated adequate funds leading to incapacity of counties to meet the demands of service delivery.

There is incongruence in the organization of County and National government from the perspective of fiscal planning and service delivery. The county governments are slow in delineating integrated service sectors and have instead adopted the functional areas assigned by the Constitution as the sectors. This lack of clarity is at the centre of conflict between the county and national government over the equitable share of national revenue and the rationale for the ‘Pesa Mashinani’ referendum crusade.

 

We call for a speedy conclusion to  the functional unbundling,, costing and assignment process, there is also need for a clear framework for the transfer and costing of functions

 

3. Administrative and political Capacity

Civic Education: The requirement for Constitution and Devolution Civic Education as contemplated under the County Governments Act has not been effected. The MDP invited bids for Civic Education in June 2014; potential providers have been short listed and prequalified after their financial bids were analyzed. The Status of this process is unclear.

Human Resource Rationalisation: Staff rationalization is currently in progress through biometric registration of public servants at the county and national levels. The TA was established to be an independent arbiter and staff audit in the transition period is part of its mandate under the Transition to Devolved Government Act. There is therefore conflict of interest in this process since MDP is an interested party. It is not clear which institution is providing oversight and quality assurance for the process.

It has further been established that this frosty relationship is also affecting service delivery in counties which are being provided by Non-State Actors. Some these are scaling down or withdrawing from the country all together.

The net effect is that educated and skilled personnel from the Civil Society sector are being rendered jobless and thus contributing to spiralling unemployment in the country; while the economy is losing billions in forex revenue accruing from capital influx from abroad.

We call for an mediation team between civil society and the ministry of devolution and planning to  break the stalemate around design and development of Civic Education Programme on the Constitution and Devolution.

We are already working with the CoG to develop a framework for Civic Education as required of County Governments by the County Governments Act.

We call for a humane reallocation of staff to ensure that jobs are not lost due to an improper process. We call for transparency in the rationalisation process to ensure it is fair and impartial. 

We call for the national government to provide clarity on the framework and content of national governments capacity building initiatives.

 

3. Conflicting  Institutional mandates

There are conflictual institutional and developmental processes at the county level with regards to establishment of County Land Boards and implementation of housing programmes.

It is the mandate of the National Land Commission under the relevant statute to oversee establishment of County Land Management Boards.  There is no clear mechanism for migration from the previous central government appointed boards to those appointed by the National Land Commission. Land rates are some of the sources of revenue for counties. There are court cases arising from this and which are bogging down counties in service delivery.

The Ministry of Land, Housing and Urban Development, through the Directorate of Housing is implementing urban development programmes in counties. It is rolling out public and social housing projects under the public private partnership with service availability payments in a number of urban areas. There is no clear framework within which this is being done considering that the Urban Areas and Cities Act, 2011 is yet to be operationalised to re-classify urban areas and establish Management Boards and Committees.

Proposed strategy:

We urge the ministry of lands and land commission to work together generate a framework for the management of land which respects the functional distinctness of county governments.  

 

4. Rationalisation of Parastatals

There is no clear framework for transferring or management and ownership of sector based companies previously under then central government line ministries such as agriculture, but which have been assigned counties. Tension over control of such firms is predominant with production activities being disrupted.

5. National Government County Administrative structures

The National Government Coordination Act with presidential enhancement of the executive powers of regional and county commissioners to leading power contestations between the county government officers and those of national government in addition to duplication of functions and misplacement of resources.

6. Unbecoming Conduct of Legislatures

There are institutional conflicts at both levels of governments. County Assemblies across the country are the epicentre of this. There has emerged a tendency for unbridled greed for largesse by county assembles across the board.

Some county assemblies demand half of the allocation to a county while others demand to draw up the budget in its entirety by themselves. Some Assemblies are holding County Executive at ransom

The Constitution has established County Assemblies to check excesses of the County Executive and not to have their own excesses. The Constitution does not expect power sharing between the County Executive and County Assembly.

The recall provisions are difficult to apply rendering them impotent.

Proposed strategy:

TDF supports the statutory imposition of budgetary limits on expenditure by institutions of governance, especially the legislatures.

TDF will push for a review of the recall provisions to remove present impediments that have made our legislators untouchables leading them to abuse their powers.

 

 

7. Public Finance

Almost all County Assemblies had passed a uniform Bill establishing County Development Fund. This is one of the grounds on which Prof. Kivutha Kibwana of Makueni County has been impeached. He refused to assent to a similar Bill. Elected MCA’s are also petitioning the Senate and making proposals for amendment to County Assembly Standing Orders to bar nominated MCAs from having a vote.

There presently exist and have been proposed other legislative funds. A high court judgement is awaiting on the constitutionality of the CDF.

There presently does not exist a framework for the management and coordination of conditional grants.

County assemblies are agitating for increased allowances in line with the hefty allowances enjoyed by the National parliament

Proposed strategy:

TDF calls for a halt to the establishment of ward development funds and other funds by legislatures.  we note that these funds like the CDF breach the constitution in many regards and directly undermine devolution.

We also call for a review of allowances to all public bodies and propose a rationalisation strategy. No public officer  should earn more than 10% in allowances in a year.

We call for a framework for the coordination of conditional grants.

8. Gender Representation

The timeline set by the Supreme Court for the progressive realization of the two-thirds gender rule contemplated by Article 100 of CoK 2010 expires on 15^th August 2015.There are a number of processes that have been put in place to formulate legislation and guidelines for operationalizing the requirement. One such process is the initiative by the office of the Attorney General.

Proposed strategy:

We call on the Attorney General to open up the ongoing initiative to ensure widespread representation and fairness.  

9. Embezzlement and Misappropriation of Local Authority assets

There was massive illegal disposal and transfer of assets of the defunct 175 local authorities and misappropriation of billions of shillings during the run-up to and establishment of County Governments after the 4^th March 2013 General Elections.

Perusal of records in Kisumu County indicates that close to Kenya Shillings 800million was embezzled, while whole housing units such as Arina, Lumumba and Ondiek were sold to private individuals.  Although the Kisumu County Government suspended those culpable no prosecutions have been initiated. This applies across the board.

Proposed strategy:

We call upon the EACC and DPP to prosecute those officers who looted public assets during the transition process and we call upon the TA and AG to establish status of recovery efforts in respect of illegally transferred assets.

10. Legislative Review

Whereas a comprehensive legislative review is pending TDF notes that critical amendments such as those on the thresholds for urban areas  are pending. On the other hand other amendments which have been enacted impact unconstitutionally on the devolved system. Key among these is the Cpounty Government Act amended to establish the County Development Boards chaired by Senators. The enactment has been challenged in court.

The Speaker of the National Assembly gave the green light for an amendment to the Constitution in the Constitution (Amendment) Bill, 2014 by Hon. Joe Mutambu. This Bill seeks to reduce the number of counties to 10, scrap Affirmative Action principle, thereby removing the 12 special and the 47 women county representatives’ seats in the National Assembly, the 16 seats for women, and nominated special seats for youth and PWDs in the Senate as well as in the County Assemblies.

This proposed amendment also has a bearing on the Equalization Fund envisaged by the Constitution in Article 204 as an affirmative action mechanism for redressing historically marginalized communities and regions. Although the Bill was eventually withdrawn, there is high likelihood of it being sneaked back into the Assembly.

The speaker has also given the green light for the amendment to the CDF Act to bring the Equalization Fund under the management of MPs and the County Development Boards. This has passed the crucial second reading stage in the National Assembly and has been passed on to the Senate.

Agostino Neto has a Constitutional Amendment Bill seeking to reduce the number of constituencies back to 210.

The National Assembly has established a Select Committee under Hon. Mutava Musyimi to assess the cost implications of implementing the CoK 2010. A budget of Kenya Shilling 80 million has been set aside for this exercise.

The basis for establishing the committee is the reasoning that the Constitution has created too many offices and institutions, which are contributing to the bloated wage bill in the public service. This initiative and that of Hon. Mutambu are related. Sources indicated that at some point in the near future, the two processes will coalesce, leading to justification for amendment to the Constitution. The main motive behind this is recentralization of both state power and control of resources.

Conclusion:

In spite of the teething challenges facing the transition to the devolved governance system, over 70 percent of Kenyans have confidence and are convinced it is a life changing paradigm. A talk with Wajir County for example established that their perception as being outsider pariah region has significantly changed. Part of this is informed by the level of delivery services being experienced in the county since independence. In this regard, the very first bitumen road was inaugurated towards the end of September 2014, fifty years after Kenya’s independence. This public goodwill should be sustained through ensuring delivery of quality services at the County level, assuring accountability and putting in place policy and legislative measures that enhance devolution.

 

Editor: This statement is the outcome of a rapid status assessment of the ongoing implementation of the devolved system in Kenya by Devolution Forum