How AG shortchanged counties on roads

Attorney General Githu Muigai

There is a deliberate scheme by the National Government, midwifed by the Attorney General and nursed by the National Assembly, to frustrate transfer of the roads function to county governments. The Transition Authority is a silent participant.

According to the Constitution, the roads function is a shared responsibility. The national government is responsible for construction and maintenance of national trunk roads. County governments are responsible for county roads. While this sounds very straightforward, the Constitution does not explicitly define what a national trunk road is as opposed to a county road. It is unfortunate that those who are part of this conspiracy are expected to defend and protect the Constitution and the rights of all Kenyans.

In 2014, county governments petitioned the Senate to intervene and compel the Transition Authority (TA) to transfer county roads to devolved governments. Thirty-nine counties signed this petition.

Senate reviewed the petition and advised on a distinction between national and county roads. Those roads that were classified as A, B and C would remain with the national government. Those classified as D and E would be transferred to devolved governments alongside unclassified roads.

The decision by Senate was a transitional period measure to ensure that counties took control of their constitutional responsibilities. At the same time, it was recommended that a new Roads Bill would be enacted to respond to the devolved governance structure and provide greater clarity on classification of roads. TA was directed to liaise with the Attorney General (AG) to gazette this decision.

This balanced and pragmatic decision would later be contested by the AG and the Transport and Infrastructure Committee of the National Assembly. In an open show of malice and defiance, the AG declined to gazette the Senate decision. The AG’s decision prompted the Council of Governors (COG) to take the matter to court.

In January 2016, the High Court ruled that the AG had acted beyond his powers and violated the principles and objectives of devolution provided under articles 174 and 175 of the constitution. The AG was directed to gazette the transfer of county roads as advised by Senate within 90 days.

Instead of gazetting the transfer as directed by the High Court, the AG went out of his way to encourage the Ministry of Transport and Infrastructure to hurriedly release a new roads classification scheme. This changed the status of most roads and shifted power to the national government. This reclassification was done and gazetted without the satisfactory participation of county governments.

As things stand now, the AG has gazetted the decision of Senate but with a new roads classification scheme that is different from the basis upon which the drafters of the Constitution and the Senate relied. There was neither urgency nor an obligation to release this new classification scheme at a time when Parliament is discussing the Roads Bill that will ultimately lead to a reclassification of roads in the country upon its enactment.

The involvement of the National Assembly in this matter is also suspect. For the record, the High Court ruled that National Assembly has no statutory or constitutional role in the matter of transfer of roads to the counties.

MPs stand to lose control of about Sh30 million that each constituency is allocated annually for roads. National Assembly passed a Roads Bill that creates a new category of roads called Secondary National Trunk Roads. Class C and D roads have now been assigned to this category.

The result of this Roads Bill is that county governments will remain with only class E, while class C and D would be controlled by MPs through a re-baptised CDF and KERRA, while the bulk of the roads budget remains in Nairobi. Because we have a bicameral system, such selfish legislative schemes will not pass unchallenged by the Senate. The reasonable way of solving this impasse is for the complete handover of class D, E and unclassified roads to county governments.

The old classification scheme should be retained in the transition period, and a new classification should be done in an inclusive manner after the enactment of the Roads Bill. The work done by KERRA and the other agency responsible for roads in urban areas (KURA) should be accomplished via an intergovernmental agreement between counties and the national government as provided for in Article 187 of the constitution. Constituency Roads Committees should be disbanded.

For devolution to succeed, we must insist on utmost fidelity from all those whose job it is to protect and defend the constitution. The drafters of the constitution envisaged that by March 2016 all functions that were allocated to the counties would have been fully devolved. It is unfortunate that just days to this deadline we are still playing legal and political games with an intention to frustrate devolution.

As the term of TA comes to an end, we must question whether it did its best to protect the interests of counties, or whether like the AG and the National Assembly it thought its job was to protect the national government. There is no need extending the mandate of an authority that failed to make hay while the sun shone. Senate must now act as an oracle and give this nation a roadmap that will ensure that devolution succeeds and survives the landmines that have been planted by very powerful forces.

The Council of Governors should also not give up its fight to take over its rightful functions. At the end of the day, Wanjiku needs services and would best be served at the lowest level of government possible. This is why Wanjiku overwhelmingly supports devolution. This is why county roads must be handed over to county governments in an undiluted form.