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A DRAFT POPULAR VERSION OF THE

INTERIM REPORT OF THE TASK FORCE ON

DEVOLVED GOVERNMENT

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ACKNOWLEGEMENTS

In carrying out its mandate as stipulated in Gazette Notice no 12876 of 2010, the taskforce members

benefited from the generous contributions of many individuals and organizations.

We would like in particular thank the Office of the President, Office of the Prime Minister, and the Hon

Deputy Prime Minister and Minister for Local Government Hon Musalia Mudavadi for giving us the

opportunity to serve this country in this crucial process of implementing the Constitution of Kenya,

2010.

The Task Force assignment successfully progressed with the financial and moral support from many

development partners and other non-government actors. We wish to warmly recognize the generous

financial support of all donors who contributed to the basket fund.

We are particularly indebted to UNDP for providing the initial funding, coordinating development

partner support and making a deliberate effort to see to it that the Task Force was always facilitated.

We also acknowledge the support of Friedrich Ebert Foundation and the media fraternity who

supported mobilization efforts during stakeholder consultations.

To the people of Kenya, localised in the various counties, we acknowledge with gratitude your positive

responses during the county visits. We thank you for providing your views, without which, this

Interim Report would be the lesser for it.

There are many other people and organizations that provided support, encouragement, and ideas

during the research, consultations and collection of information for this report. It may not be possible

to thank them all by name, but their help and invaluable contribution is appreciated. This

notwithstanding, the task force is grateful to all members of the public, Civil Society Organizations

(CBOs), Private Sector practitioners, and other organized groups who have contributed invaluable

insight by providing testimonies and attending the task force public hearings and meetings, and

submitting written comments, memoranda, and/or recommendations. All these informed our report

within the limits of the constitution.

Last but not least, the Task Force would like to acknowledge the invaluable contributions of Steering

Committee, Joint Secretaries, the Secretariat, Programme Officers, and the Research Assistants,

including the Rapporteurs and Hansard Reporters.

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ACKNOWLEGEMENTS .................................................................................................................................................................................... 2

TABLE OF CONTENTS.......................................................................................................................................................................................3

CHAPTER ONE: TASK FORCE MANDATE, TERMS OF REFERENCE AND THEIR INTERPRETATION............................ 7

INTRODUCTION ...................................................................................................................................................................................................... 7

REPORT PURPOSE ................................................................................................................................................................................................. 9

ORGANIZATION OF THE REPORT ........................................................................................................................................................................ 9

CHAPTER TWO: CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT .................................. 11

CHAPTER THREE: CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA ....................................................... 15

CHAPTER FOUR : LEVELS AND UNITS OF DEVOLVED GOVERNANCE .................................................................................. 21

CHAPTER FIVE: THE STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE .............................................. 22

Devolution of Government............................................................................................................................................................... 25

RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION .......................................................................................................................... 27

Proposed Structure of the National Administration ............................................................................................................. 27

Security Management in the Counties ........................................................................................................................................ 28

CONCLUDING REMARKS .................................................................................................................................................................................... 29

CHAPTER SIX: FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY IN

KENYA..................................................................................................................................................................................................................28

Policy Options and Recommendations.................................................................................................................................29

CHAPTER SEVEN: INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS ....................... 33

Place of Integrated Development Planning............................................................................................................................... 33

Constitutional Basis for Integrated County Development Planning in Kenya............................................................ 34

CHAPTER EIGHT: INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION....................................................34

A BRIEF OVERVIEW OF KENYA’S ADMINISTRATIVE SYSTEM ..................................................................................................................... 36

RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS ...................................................................................................... 37

Rationale for Intergovernmental Relations .............................................................................................................................. 37

Principle of Fidelity to the Nation ................................................................................................................................................. 37

Principle of Unity in Diversity ........................................................................................................................................................ 37

Principle of Cooperation ................................................................................................................................................................... 37

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Principle of Interdependence ......................................................................................................................................................... 37

Principle of Oversight ........................................................................................................................................................................ 38

MECHANISMS OF CO-ORDINATION AND CO-OPERATION ........................................................................................................................... 38

National Government and County Government ...................................................................................................................... 38

Recommendations ............................................................................................................................................................................... 38

Inter-County Government Co-operation .................................................................................................................................... 39


Intra County Co-operation ............................................................................................................................................................... 39


CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES ................................................................................................................................... 40

Concept of Cooperative Government .......................................................................................................................................... 40

The Role of Senate ............................................................................................................................................................................... 41

Intergovernmental Dispute Resolution ...................................................................................................................................... 41

RECOMMENDATIONS ........................................................................................................................................................................ 41

INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT ............................................................................................................... 42


CHAPTER NINE: CITIZEN PARTICIPATION AND THE PROTECTION OF MARGINALIZED GROUPS...........................41

CITIZEN PARTICIPATION.............................................................................................................................................................................41

PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS ............................................................................ 45

Definition of Terms ............................................................................................................................................................................. 45

Problems Faced by the Minorities and Marginalised Groups & Communities........................................................... 47

Solutions Provided Under the New Constitution ................................................................................................................... 48

Recommended Legal, Policy and Institutional Interventions ........................................................................................... 48

CHAPTER TEN: COMMUNICATION AND CIVIC EDUCATION........................................................................................................46

PUBLIC COMMUNICATION..........................................................................................................................................................................48

CIVIC EDUCATION ON DEVOLVED GOVERNMENT...........................................................................................................................52

CHAPTER ELEVEN: BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE..............................................................57

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Overview.........................................................................................................................................................................................................57

Conclusion and Recommendations........................................................................................................................................59

CHAPTER TWELVE; COUNTY GOVERNMENT FINANCIAL RESOURCES AND THEIR MANAGEMENT .................... 620

Fiscal Decentralization Conceptual Framework ................................................................................................................... 620

Principles of Public Finance .......................................................................................................................................................... 641

REVENUE ........................................................................................................................................................................................................... 642

Inter-Governmental transfers ...................................................................................................................................................... 642

The Principle of Funds Must Follow and Match Functions .............................................................................................. 685

County Own Revenues ..................................................................................................................................................................... 696

Grants and Donations ............................................................................................................................................ 69

BORROWING, GUARANTEES AND DONOR GRANTS ...................................................................................................................................... 69

Consideration of Loan Guarantees ....................................................................................................................... 69

Institutional Framework for Coordination of Borrowing and Grants ............................................................. 730

PUBLIC DEBT MANAGEMENT IN COUNTIES ................................................................................................................................................. 742

PLANNING AND BUDGETING....................................................................................................................................................................... 752

County Planning and Budgeting Linkages ......................................................................................................... 752

EXPENDITURE CONTROL ................................................................................................................................................................................. 764

Expenditure Controls Framework ..................................................................................................................... 764

Procurement/ Supply Chain Management ........................................................................................................ 775

Role of Controller of Budget ............................................................................................................................... 775

Role of Accounting Officer .................................................................................................................................. 785

Oversight Role of the County Assembly ............................................................................................................. 786

County Internal Audit Function .......................................................................................................................... 786

FINANCIAL REPORTING AND AUDIT.............................................................................................................................................................. 796

County Financial Accounting and Reporting ..................................................................................................... 796

Role of Auditor General ....................................................................................................................................... 797

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FINANCING COUNTY INFRASTRUCTURE ....................................................................................................................................................... 807

Role of Counties in Infrastructure Development and Delivery ........................................................................ 807

Approaches for the Development and Financing of County Infrastructure ................................................... 808

COUNTY PUBLIC FINANCE MANAGEMENT LEGISLATION .......................................................................................................................... 830

CHAPTER THIRTEEN: THE TRANSITION ROAD MAP ................................................................................................................. 851

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CHAPTER ONE: TASK FORCE MANDATE, TERMS OF REFERENCE AND THEIR INTERPRETATION

INTRODUCTION

Pursuant to the Constitution of Kenya, 2010 (CoK, 2010) and a decision of the Fourth Cabinet

Meeting1 of 17th August 2010, the Deputy Prime Minister and Minister for Local Government

established the Task Force on Devolved Government (TFDG) on the 22nd October 2010 through

Gazette Notice 12876 dated 25th October 2010. The purpose of the task force was to help think

through the implementation of the devolution process and advise the government on policy and legal

frameworks of devolving power, resources and responsibilities to the people of Kenya for effective

local development.

MANDATE OF THE ASK TASKFORCE

The overall mandate of the Task Force is to propose implementation mechanisms for the devolved

system of government as envisaged in the Constitution of Kenya, 2010. The specific terms of

reference (ToRs) of the Task Force as set out in the Gazette Notice are:

a. Prepare a detailed work plan indicating the detailed milestones and timelines and present to

the same to the Steering Committee.

b. Undertake studies and make proposals for effective implementation of devolution structures

consistent with the provisions of the Constitution.

c. Commission studies or researches as are necessary for the effective execution of its mandate.

d. With reference to specific provisions of the Constitution, collect and collate public views on

how implementation of the devolved government should be structured.

e. Undertake stakeholder and public consultation to develop consensus on options of structures

and institutions of devolved government.

f. Recommend policy frameworks for implementation of devolved government as provided for in

the Constitution

g. Make proposals on appropriate legislation to anchor and implement the devolved government;

and

h. Make monthly reports or as may be required by the Steering Committee.

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THE POWERS

The powers of the Task Force were to:

a. Nominate acting –chairperson from amongst the members in the absence of the Chairperson.

b. Hold meetings, public forums or consultations as it shall deem necessary.

c. Hold meetings in any part of the country and shall ensure views from all the counties are

received and considered.

d. In consultation with the Steering Committee, co-opt local and international experts in

particular areas of need as may be necessary.

e. Commission studies or researches to institutions or individuals with requisite expertise, as

required to undertake its tasks; and

f. Co-ordinate and consult with relevant ministries, departments and agencies in order to access

all relevant information, documentation and studies as are relevant to enable the Task Force

execute its mandate.

The task force made an outline of thematic areas as follows

Summary of the Thematic Areas;

To guide the county consultations, the TFDG deliberated and agreed on the following areas of focus,

namely:

1. Cooperative Government, Inter-Governmental Relations and Levels of Governance

2. Functions of and Service Delivery by County Governments

3. Financial Resources and Management in County Governments

4. Political Governance, Leadership, Accountability and Integrity in County Governments

5. Citizen Participation and Oversight, Protection of Minorities and Marginalized Groups and

Communication and Civic Education

CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT

In implementing this assignment the TFDG experienced a number of challenges. These included the

time constraint of having to implement a comprehensive assignment over a period of nine months.

The start-up delays, arising out of the need to quickly affect a fund raising strategy for the various

activities, made this challenge more onerous. One of the key mandates of the TFDG was to collect

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views from citizens on the mandate. The experience from the field clearly showed that civic education

on the provisions and implications of the Constitution of Kenya, 2010 was wanting. To overcome this

challenge, the County Consultation Teams included within their programme a short rendition of the

provisions of the CoK, 2010 in respect of devolved government.

REPORT PURPOSE

The purpose of this Interim Report of the Task Force on Devolved Government (ITFR) is to provide

the initial feedback to the Deputy Prime Minister and Minister for Local Government on the proposed

measures to operationalize Devolved Governments as envisaged under the Constitution of Kenya.

ORGANIZATION OF THE REPORT

This Interim Report of the Task Force on Devolved Government (ITFR) is organized into fourteen,

closely related and interrelated chapters. The chapters are organized around specific themes, which

are key building blocks for effecting the operationalising effective developmental devolved

government in Kenya. Chapter one lays the foundational basis for devolution in Kenya.

Chapters Two and Three lay the basis for an identification of the reasons why Kenya’s adopted a new

constitutional framework founded upon a devolved framework. The chapters also establishes the

basis of the constitution, the basis upon which this new devolved framework is conceptualized and

elaborated in the subsequent sections. Furthermore, the two chapters also elaborate on shared

institutions between the national and county governments. It makes the case as to why these

institutions should be deemed to be shared and therefore, how they should be constituted and

managed and/or the mechanisms of their decision making processes. Chapter Four discusses the

levels and units of governance within the forty-seven (47) devolved units. The chapters finds the

place of urban areas within county governments. Chapter Five discusses the structures and

institutions of governance established for governance of the counties, including an elaboration of the

legislative and administrative frameworks. Chapter Six discusses the assignment of functions to the

various levels of governance and their implications for public service delivery. It proposes the

framework for effective and efficient functional and competency assignment. Chapter Seven makes a

case for integrated development planning in the county governments and the linkages to national

level planning. It identifies the instruments and mechanisms that need to be put in place to achieve

this critical building block for devolved government. Chapter Eight dwells on the intergovernmental

relations and dispute resolution framework so critical for effective performance of the devolved

entities. Chapter Nine discusses, emphasizes and elaborates on the framework effective citizen

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participation in the processes and institutions of devolved government. It makes a linkage between

citizen participation as a mechanism of including citizens in county governance processes as well as

being an instrument for the protection of minorities and marginalised groups. Chapter Ten brings to

the fore the importance of public communication and civic education for enhancing the

implementation of devolved government. Chapter Eleven, on the basis of the previous chapters,

discusses the imperatives of building and effective county public service, including an elaboration of

measures to deal with transition from current structures as well as incentivizing opportunities in the

nascent county public service.

Chapter Twelve focuses on county financial resources, their management structures, responsive

mechanisms to the status of counties and the imperatives of the Constitution of Kenya. Chapter

Thirteen summarizes and integrates the conclusions and recommendations from the various chapters,

including a rationalization and integration of the various policies, legal, regulatory and administrative

proposals made. Chapter Fourteen then ties all these up by proposing the transition mechanisms as

the new devolved units are founded and operationalised.

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CHAPTER TWO: CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT

Introduction - Kenya is emerging from a state of bad governance demonstrated by widespread

corruption, ethnic conflicts, insecurity, political uncertainty; and poverty among others. Poor

governance has resulted in, among other negative outcomes, the alienation of large portions of the

society from the mainstream economy; the squandering of public resources leading to low levels of

development and massive poverty, ethic animosity due to perceptions of historical injustices; and cut-

throat political competition and intolerance

COUNTY VISIT SUBMISSIONS ON THE HISTORICAL PERSPECTIVE

Struggle for a constitution that addresses equity and equality for all

Poor services, insecurity, poverty, discrimination in appointments to key state jobs

Country divided based on inequalities in social, economic, political development

Discriminatory policies have contributed to underdevelopment of the northern Kenya sub-

region

Skewed relationships between the people and their leader,

Kenya is in urgent need for a more intense shift towards a focus on development. No one is more

aware of this need than the citizen’s as was discerned from the county visit submissions. They

made it clear that the mission for the counties would and should be that of achieving positive

development outcomes for the citizen.

COUNTY VISIT SUBMISSIONS ON EXPECTATIONS OF DEVOLVED GOVERNMENT

Devolved government should lead to national renewal

Nation built on equity and equality for all Kenyans

An inclusive nation where everyone feels they belong

Equal opportunity for all

Design of policies that reduce inequality in the country

Ensure positive relations between the people and their leaders

Reduce the adverse effects of politics on governance

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Bring the government closer to the people

Devolved governments as a platform for accessing rights enshrined in the constitution

The centralized colonial state - The colonial government which was primarily established for the

purposes of exploitation and plunder, established highly centralized, brutal and racist state machinery

for facilitating its colonial functions.

The post-independence Quasi federal state - At independence Kenya adopted a fairly progressive

liberal constitution whose primary features were: an extensive bill of rights; a bi-cameral parliament;

devolved government; separation of powers between the arms of government; judicial independence;

and a multi-party political system2. One of the key features of the independence constitution was the

semi-federal system of government.

Perpetuation of the centralized - The dream of a constitutionalist state was never realized in Kenya.

The independent constitution was amended to remove virtually all the checks on executive power

thereby putting to rest the notion of constitutionalism- limited government. Executive power however

continued to be legitimized ostensibly through the constitution.

The main problem of centralization of power in Kenya is that it led to the capture of the state by a few

political elites. These elites were able to control both political and economic power in the entire

country.

The Promise of Developmental devolved government - Kenya is in urgent need for a more intense

shift towards a focus on development. No one is more aware of this need than the citizens as was

discerned from the county visit submissions. They made it clear that the mission for the counties

would and should be that of achieving positive development outcomes for the citizens. Some of these

outcomes included job creation, harnessing local potential, integrating the counties with the nation,

amongst others. it is on this basis that the counties will be premised on the foundations of

developmental devolved government committed to incorporating citizen participation to determine

inclusive and sustainable mechanisms for growing county competitiveness, building and maintaining

quality places, promoting inclusive growth and generally managing counties for prosperity.

Building blocks for cooperative and competitive counties

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The prosperity of the new counties and therefore that of the Kenyan people, individually and as a

whole is dependent on enhancing access to opportunity to all citizens while ensuring adequate

environmental protection. As nation’s struggle to attain and maintain economic competitiveness, the

constraining effect of administrative boundaries becomes a matter of concern

Growing and sustaining county cooperative competitiveness - The ability of the new counties to

create wealth and enhance welfare outcomes of their citizens will depend on how well they are able to

leverage the endowments, natural and otherwise, within the national, regional and global operating

contexts. Attracting the jobs that improve welfare for citizens will not be achieved through lone

ranger efforts.

Paradigm shift in county service delivery - The effectiveness and efficiency with which public

services are provided to support inclusive growth, economic innovation and competitiveness and

maintaining quality places will be key to the success of the counties. Public services have been

defined as any of the common, everyday services provided by national and local governments with the

aim of improving social welfare. They are used jointly by many citizen- consumers simultaneously and

users cannot readily be excluded. Market mechanisms of demand and supply are inadequate for

supplying public goods and services.

Unity in diversity - Kenya is a diverse country in many respects, ranging from geographical and

rainfall endowments to population distribution amongst others. Of critical concern is the extent to

which inequality in developmental terms continue to create social and political tensions that act as a

constraint to economic development. One of the challenges of county governments will be to ensure

that national unity is upheld and maintained.

Skilled Human Resources - A review of developmental discourse suggests that the human resource,

appropriately skilled is key to harnessing other endowments or lack thereof to drive development. It

will be important that national and county governments, working in concert, move towards equalising

the level of human resource skills across and within the counties.

Sustainable and Equalising Funding - Given the diverse developmental conditions in the country, it

will be critical, and in adherence to the need to build a more equal society the funding mechanisms

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and instruments should not only ensure a predictable and sustained flow of funds to counties, they

should also ensure that county governments are actively directed to ensure that revenue due is

collected.

Citizen Participation - The foundations of the Constitution are to ensure effective citizen

participation in facets of governance, to which the county governments must respond. The importance

of participatory governance is embedded in almost all chapters of this report with one chapter fully

dedicated to them.

CONCLUDING REMARKS

The new constitution seeks to reverse the centralized and non participatory governance paradigm by

institutionalizing and embracing a governance and leadership system based on integrity. It does this

primarily by: establishing an enabling normative framework; creating relevant governance

institutions; creating checks and balances on the exercise of executive power; providing for facilitative

legislation; enhancing public participation in governance as a bulwark against abuse of power and

tightening the process of recruitment, and retention of critical public officers.

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CHAPTER THREE: CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA

Concept of a constitution – the constitution organizes and manages governance and state power. It

defines, distributes and constrains the use of state power. It is a power map to be followed in

constructing a society and running the affairs of state.

Concept and theory of devolution – a devolved government follows the multi-dimensional

approach to the organization and management of governance and state power. It seeks to

organize governance and manage state power both vertically and horizontally and thus to define,

distribute and constrain the use of state power both vertically and horizontally. Under this

system, one creates two or more levels of government that are to co-ordinate, but not subordinate to

each other. None of the levels of government is a mere agent of the other. Each is created and

Protected by the constitution. The functions each performs are set out and defined by the

Constitution. The resources each uses to discharge these functions are also provided for in

Accordance with constitutional provisions. The system is founded on the concept of a combination of

self-governance at the local level and shared governance at the national level.

Independent commissions as shared institutions – Because of the shared nature of governance, a

number of independent institutions are established in the the constitution of Kenya, which in a

number of respects can be perceived as shared institutions. Most of these commissions render

services to both levels of government. These commissions are so important in the operationalization

and functioning of devolution that they cannot risk losing their independence and becoming

controlled by only one level of government. As such, they are to be regarded as shared institutions

which must be answerable and accountable to both levels of government. They must never regard

themselves as institutions of the national level of government but as independent state organs.

Independent offices shared institutions – Apart from the established commissions, there are also

independent offices which are also conceptualized as shared institutions. Indeed these offices will be

expected to render very important services to the Kenyan people; and by all means cannot be seen as

offices belonging to and controlled by one level of government. They must be seen as having been

conceptualized and designed as shared institutions, which serve both levels of government and ought

to be completely independent of the two levels of government.

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Operationalization of Shared institutions - The shared institutions and offices’ operationalization

ought to recognize and emphasize the fact that these institutions and offices are shared. A number of

factors may need to be taken into account in this exercise. First and foremost, their composition may

be made representative of both levels of government to ensure their independence and to avoid their

being unduly controlled by only one level of government. This can be done with those whose

composition is supposed to be provided for by an Act of Parliament. Secondly, processes of appointing

their members could be structured in such manner as to involve representatives of county

governments. Interviewing panels could be made to include representatives of county governments or

associations of counties. Thirdly, in the daily operations of these shared institutions, provision could

be made calling for a cooperative relationship between them and the county governments as well as

the national government. Such cooperation should involve consultation and negotiations with county

governments or associations of county governments whenever certain decisions have to be made.

The form of devolution - The starting point is to appreciate the fact that there is no uniform form of

devolution. Different variants exist and each country for one reason or another adopts a variant that is

unique to itself. This therefore, requires that we examine the Kenyan devolution to be able to know its

form and to understand the relational principles informing it. The Kenyan devolution as established

by article 6(2) and operationalized by article 189 may be said to be a cooperative form of government

based on a number of relational principles.

The principle of distinctness - It was observed that when defining devolution under this system of

government, the constitution creates two or more levels of government which are to coordinate and

not subordinate to each other. Article 6(2) provides in this regard that the governments at the

national and county levels are distinct. This connotes a measure of equality and autonomy among the

two levels at least in the sense of each one of them being created by the constitution as opposed to

being created by another level of government. None is created and therefore can be abolished by

another level of government. However, as will be noted when discussing other principles, this is not

absolute autonomy as the governments are also inter-dependent.

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The principle of inter-dependence – In the definition of the devolution, it was observed that this is a

system which combines self-government at the local level and shared government at the national

level. Because of this concept of shared-ness the system in its relational functioning becomes inter-

dependent. Inter-dependence is necessitated by a number of factors. Firstly, is the fact that the

consumers of the services rendered by the two levels of government are the same citizens of Kenya

although located in different parts of the country; secondly, in the distribution of functions, quite a

number of functions are concurrent in nature. Thirdly, other functions are assigned on the basis of

national government formulating national policy and setting national standards while the county level

is assigned the implementation functions. Inter-dependence then becomes the foundation of the

concept of cooperative government.

The principle of oversight - It has already been noted that in the assignment of functions one

approach that is often used is to assign to the national level of government the functions of

formulation of national policies and setting of the national standards while the county level of

government is assigned the function of implementing those policies and standards. Because of this the

policy formulation and the standards setting functions of the national function must include a certain

measure of monitoring and evaluation, which creates an oversight relational aspect.

Objects and Principles of devolution - In creating a devolved system of government, the new

constitution at article 174 identifies a number of things as the objects of devolved government. These

are the promotion of democratic and accountable exercise of power; the fostering of national unity by

recognizing diversity; the giving of powers of self-governance to the people and enhancing of the

participation of the people in the exercise of the powers of the state and in making decisions affecting

them; the recognizing of the right of communities to manage their own affairs and to further their

development; the protection and promotion of the interests and rights of minorities and marginalized

communities; the promotion of social and economic development and the provision of proximate,

easily accessible services throughout Kenya; the ensuring of equitable sharing of national and local

resources throughout Kenya, the facilitation of the decentralization of state organs, their functions

and services, from the capital of Kenya; and the enhancement of checks and balances and the

separation of powers.

Architecture and design of devolution in Kenya - The Success of devolution depends on a proper

architecture and design of the system. The constitution is a comprehensive totality that is interlinked,

interlocked and interdependent. Hence, devolution permeates all the other parts of the constitution.

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Identified among these very important aspects is the concept of the value foundations of the

constitution. These are very important because they are overarching and permeate all other aspects of

the governance system, including devolution.

The value foundations of the constitution -

Strong value systems comprise the foundation of the constitution. It identifies, and establishes certain

values as the foundation of the governance system that the Kenyan people have put in place, to lead a

system of good governance.

The fundamental values and principles of good governance - the concept of government as an

instrument in the service of the welfare of the people is the main and fundamental value embedded in

the constitution. These are one, the sovereignty of the people as the source of all authority to govern.

Two, that all governments are established and instituted by the people to serve the welfare of the

people. Three, that those to whom authority of government is delegated to administer on behalf of the

people; do so during the pleasure of the people; during a limited period of time; and during their good

behavior. Four, which openness, transparency, and accountability as opposed to secrecy in

governance, is central. Five that leadership ought to be based on the principles of integrity and service

to the people.

The sovereignty of the people - Article 4 declares Kenya a sovereign republic, which shall be a multi-

party democratic state founded on the values and principles of governance referred to in article 10.

The preamble to the constitution on the other hand, recognizes the concept of the sovereignty of the

people. It notes that “we the people of Kenya” are sovereign and have an inalienable right to establish

and determine the form of governance of our country. Article 1 declares that all sovereign power

belongs to the people of Kenya and shall be exercised only in accordance with the constitution. The

people are therefore, sovereign and they normally express their will about how they would like to be

governed through the constitution.

Service to the welfare of the people - The preamble recognizes that in establishing and determining

the form of government, the Kenyan people intended it to serve only one purpose; “the nurturing and

protecting the well-being of the individual, the family, communities and nation”. The executive

chapter puts emphasis on this concept of service to the welfare of the people and declares at article

129(2) that “Executive authority shall be exercised in a manner compatible with the principle of

service to the people of Kenya, and for their well-being and benefit.”

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Leadership and integrity under Chapter six - a good constitution ought to set out integrity

standards against which the behavior of the leaders can be evaluated. Chapter six of the constitution

seeks to do this. It identifies and sets out certain integrity standards that, it is believed, if well

observed would lead to the proper service of the welfare of the people by the leaders.

Participation and inclusiveness; - Inclusiveness and protection of minorities and marginalized

groups at both levels of government is a value that encourages participation. The constitution is

providing a major paradigm shift from a system of extreme exclusion and marginalization to a system

that puts emphasis on inclusion and participation of all sectors of the society in the affairs and

benefits of governance

The important role of political parties - the constitution plays a very important role in governance.

As proposals are made on devolution it should be borne in mind that there is need to address these

problems of political parties to ensure that the gains of the new constitution are not undermined by

the poor practices of political parties. As we implement leadership and integrity, we should place

some obligations on political parties to ensure that in nominating candidates to leadership positions,

they play a role and ensure that the country and the counties get leaders of very high integrity.

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CHAPTER FOUR: LEVELS AND UNITS OF DEVOLVED GOVERNANCE

Overview

This chapter discusses the Kenya design of devolution which has two levels, National and County

governments, with a major focus on further decentralisation highlighting units of County

governments. The chapter begins by providing an overview of local governance highlighting the

principles of local governance, including decentralization followed by a discussion of the two levels of

government. This is followed by discussion of cities and urban areas as units of governance, including

the role of cities in development, context, classification, and the city of Nairobi. The third sub section

discusses the challenges of the 47 counties, while fourth sub-section pulls out policy and legal gaps

and provides policy options and recommendations. The last sub section concludes and highlights

outstanding issues.

The levels and units of governance discussed in this chapter takes into consideration Article 176(2) on

the decentralisation of functions and services and Articles 184 on the establishment of urban areas

and cities. In order to contextualise levels and units of decentralisation, principles of local governance

are discussed. The chapter acknowledges the rapid urban growth and conceptualises Counties as

having both urban and rural areas deserving different forms of governance.

Units of Further Decentralisation

It is proposed that one level (Sub-county) of administrative and service delivery be established under

the county through legislation. At a practical level, the sub-county level is the constituency which can

either be urban or rural in nature. Suggestions have been given on how the sub-counties will provide

services and how they will be managed. It is expected that the County Governments will further

decentralise services to the lower levels of ward/location and village/sub location. This will ensure

efficient service delivery and effective participation of citizens as embedded in the Kenya Constitution

2010. The decentralised units are expected to operate on the principles of efficiency, effectiveness,

equity; accountability and citizen participation among others.

Classification of Cities

Conceptually within the County and related decentralised units there will be pockets of small, medium

and large cities. Different forms of governance framework is proposed for each of the units of

decentralisation, with cities and urban areas being classified into three categories, large with over

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300,000 population; medium with between 50 to 299,999 and small with 30,000 to 49,999

population. The city of Nairobi and Mombasa which also double as counties is separately provided for.

Challenges of County Governments

The chapter also discusses the challenges of decentralisation, mentioning issues of restructuring of

the provincial administration and taking into account the functions of national government which will

be performed by line ministries. Other challenges covered include overlapping structures, capacity of

the counties, cross county planning and development, and economies of scale challenges. Overlap

occur in cases of cities and urban areas which are located within Counties, and also have

constituencies and wards.

Policy Options and Recommendations

Policy options and recommendations to be considered for effective implementation of the levels and

units of governance are provided. This include a suggestion for the development of National guiding

principles for further decentralization in all County Governments; development of a Devolution Act,

National Cities and Urban Areas Act and development of a County Municipal Act by County

Governments.

The Devolution Act and policy is expected to provide for further decentralization in both urban and

rural parts of Counties among others. The same law should also provide direction for rationalization

and fit of other prevailing governance structures operating at County level, including Provincial

Administration and line Ministries.

National Cities and Urban Areas Act will provide for classification, structures, management and

relationship with decentralised units and the County. The County Municipal Act will provide a

mechanism/body for designation of cities and urban areas. Once a criterion is developed, the body can

reassess the existing cities and urban areas and reclassify them accordingly. In terms of procedure,

urban areas which qualify can apply to the established body for status upgrading.

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CHAPTER FIVE: THE STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE

THE COUNTY ASSEMBLY

Chapter 5 elaborates on the structures and institutions of the county government. It offers a detailed

discussion on the arrangement, composition and configuration of the County Assembly and the

County Executive. The chapter deals with the qualifications, election and removal of the County

Assembly as well as the speaker of the County Assembly, the Governor, Deputy Governor and County

Executive Committee members. It gives a detailed overview of the mandate and functions of the

County Assembly, and the County Executive. This discussion is undertaken on the premise that the

constitution provides that the County Assembly shall play a legislative and oversight role over the

County Executive which shall be the implementing arm of the County Government.

On the County Assembly, the fact that elected members of local authorities have hitherto operated

without specific duties and responsibilities is discussed and attempts have been made to define

precise tasks for them. This is critical because the public holds the view that Article 104 which

provides for a recall of a member of parliament should also apply to members of a county assembly.

To implement the recall provision requires an objective standard and criteria. Defining duties for

assembly members shall also improve on service delivery and accountability to the citizens..

On basic educational qualifications, there is unanimity of opinion that a County Assembly member

should be a holder of a Form Four Certificate while the Speaker should be one learned in law. The

public view is that all serving members of the assembly should be residents of the county with a

manifest interest in the local affairs of the community. It is agreed that all elected and appointed

members of the County Government should be persons with high integrity and without a criminal

record. Party nominations to the County Assembly should be on the basis of closed party lists

tendered to the Election Management Body before a general election.

A few issues remain unsettled on the County Assembly. It is yet to be agreed on whether the IEBC

should conduct party nominations and also whether the Deputy Speaker’s position should be a

permanent position.

THE COUNTY EXECUTIVE

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The County Executive will have political responsibility and accountability to the County Assembly and

citizens for service delivery. We recommend decentralizing of Executive functions for efficiency by

way of delegation of functions to Executive Sub-Committees and by way of legal provision for transfer

of Executive power to other semi-government agencies (parastatals or Boards) through

corporatization, or to the private sector from beginning to end privatization.

The qualities of the County Executive will fall into two basic categories, capacity and integrity. It is

important here to note that the requirements of competence and suitability which is one of the

principles of leadership and ethics can only be operationalised through educational and professional

qualifications. These qualifications must also be read in the light of the functions that the County

Executive will be required to perform. We recommend the following minimum educational and

professional qualifications of the Governor, Deputy Governor and Executive Committee : at least a first

degree from a recognised university and knowledge and experience of not less than five years. In

addition the Governor and Deputy Governor should not be from the same gender, and no more than

two-thirds of the Executive Committee should be from one gender.

Integrity aspects will be addressed by an ethics law that will provide standards of ethical conduct by

which public officials should operate. This law will address the following aspects: conflicts of interest,

gifts, financial disclosure, (gifts and financial disclosure are subcategories of conflicts of interest),

ethics oversight and vetting procedures). Issue:

While the direct election of the Governor increases the degree of accountability to voters, the

legitimacy accorded an incumbent Governor will be shaped by the Governor’s apparent scope of

victory. From the views given by the public on election of the Governor, it was clear that there was

consensus that a plurality/majority electoral system was preferred. The principle of such a system is

that after votes have been cast and totalled, the candidate with the most votes is declared the winner.

However, there were differing views as to whether the majority that was required is a simple majority

or an absolute majority. There were various proposal made on the majoritarian proportions needed

for the election of the Governor from the county hearings:

1. An Absolute majority of 50% + 1 votes

2. An Absolute majority of 50% + 1 votes and at least 25% votes cast in half of the ward in the

county

3. At least 25% of votes cast in half of the wards in the county

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What is important to note is that there are only two options: a simple majority or an absolute majority

of any of the above three variants. We recommend that the Governor be elected either by a simple

majority or by at least 25% votes cast in more than half of the wards in the county.

There is a clear constitutional requirement for a balanced executive committee composed of

representation from different regions, ethnic or religious groups from a county. The Constitution also

requires approval of County Executive appointments by the County Assembly. We recommend two

additional safeguards. The first safeguard is for the legislative framework to specifically provide for a

pluralistic Executive Committee in terms of gender, minorities and region representation. The second

safeguard is the specific qualifications already provided for the Executive Committee members to

ensure that appointment is based on expertise rather than corruption, favouritism, or nepotism.

The legal framework should focus on the role of the County Executive Committee as policy makers

and political representatives, rather than giving them powers and responsibilities that will result in

their micro-managing of the County and assuming the management responsibilities of the County

administration. We therefore recommend that the roles of the Executive Committee will be as follows:

political responsibility, decision making, policy formulation and oversight, County administration

establishment and providing checks and balances by way of veto powers over legislation passed by

the County Assembly.

Finally, legislation will elaborate on the procedure of removal of a County Governor through an

impeachment procedure. This will require an absolute majority of the members of the County

Assembly. Procedures in the legislation will also provide for additional circumstances when Executive

Committee members should leave office.

ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT

Devolution of Government

Administrative decentralization refers to decentralization of the control of staff and human resources

in general to sub-national governments. In the context of devolution this aspect of decentralization

usually receives less attention than political and fiscal decentralization. This is a misnomer given that

human resource and institutional development ultimately have the highest impact on the

performance of County governments. It is thus important that the design and structure of the County

administration is given the due attention it deserves. In reviewing the likely organizational structure

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of counties it is important to distinguish between political structure, the supporting administration

and the linkage between the County governments and the national government.

Unlike the current local authorities the Constitution establishes a clear Executive structure for County

Governments (Article 179). This comprises the Governor, Deputy Governor and an Executive of at

most 10 members who together form the County Executive committee. The Governor is the chief

Executive of the County and is responsible for the appointment and supervision of the members of the

Executive committee. The County Executive is responsible for implementation of policies of national

and county governments, supervision and coordination of county administration and submission of

legislation to County Assembly. The County Executive has full control of the County public servants as

provided by Article 235(1) of the Constitution. This is important because these responsibilities are

essentially the elements that signify the autonomy of counties in decision making regarding delivery

of services related to the assigned functions.

The County Administration

In designing County administration emphasis must be placed on effective organizational structure

with well-defined responsibilities assignments. It is thus envisaged that the Governor and the Deputy

Governor will supervise the Executive committee members who will be responsible for one or more

departments of the county. The Governor will appoint one of the members of the Chief Executive

Officer/Accounting Officer of the county government. Other members and all staff will be accountable

to the county CEO. Units under each department will be headed by senior professionals with

qualifications that in some cases will be prescribed by national regulations to ensure that service

delivery is according to national standards.

Each county is expected to establish its own Public Service Commission for the purpose of exercising

functions provided for in Article 235(1). It is recommended that a Commission made up of the

Executive committee member and an equal number of members of the public appointed by

professional bodies and associations and chaired by the Deputy Governor be established. The

Commission will operate on a part time basis under an Act of Parliament provided for by Article 235

and with terms and conditions determined by the Salaries and Remuneration Commission.

It is proposed that counties decentralize to three units below the County, namely the sub-County and

the ward County government administrative and technical staff should be posted only to these two

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levels outside the county headquarters. The village elders, the assistant chiefs and the chiefs should

support the County governments and their offices at the lowest services delivery points. At each sub-

County, it is proposed that County Assembly members constitute themselves into a committee to

supervise the County Executive at that level. Assembly members play the same role at the ward level

under legislation to be passed by County Assemblies.

RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION

Provincial Administration is one of the departments in the Office of the President. It is not provided

for by the constitution and has been operating under a Presidential Executive order since the 1960s.

The Department is now staffed by about 12,344 officers stationed in all counties, districts, divisions,

locations and sub-locations of the Republic.

Articles 262 (the Sixth Schedule) section 17 of Constitution 2010 provides that this department be

restructured to ensure that its functions are in line with the new system of devolved government. This

is necessary to ensure that as it performs its functions it does not in any way infringe on the functions

of county governments, but work with County governments to effectively deliver services to Kenyans.

The restructured Provincial Administration will facilitate the attainment of the President’s

responsibilities as provided by Article 131(2), Article 132 (3) (b) and Article 132 (4) (a). This would

be in line with the requirement that all state organs should where necessary provide services in all

parts of the country (Article 6(3).

Proposed Structure of the National Administration

It is proposed that the restructured provincial administration be renamed national administration.

The structure of the national administration has not been agreed. Several options on the structure of

the proposed national administration have been proposed as follows:

i. Option 1: call for the national administration to exist side by side with the county

administration. This option proposes that the national administration be represented at three

levels by a county administrator at the county level, a district administrator at the sub-county

and chief at the ward level. This would make it unnecessary for the county government to

establish an administration at that level. Under this option the chief would report to both

governments although being a national government officer.

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ii. Option 2: The structure remains the same as in option 1, but the chief is part of the county

administration and therefore the national government does not have to be represented at this

level. The functions of national government are proposed to be carried out through

assignments to the county administration.

iii. Option 3: national government is only represented in counties by technical officers and the

heads of the technical units working and coordinating with their equivalents in the county

departments. This option does not contemplate an administration for the coordination of

national government functions.

Consultations are ongoing in terms of these proposals, taking cognisance of Section 17 of the Sixth

Schedule of the Constitution.

Security Management in the Counties

Although the constitution allocates the function of security management to the National Government,

it is important to provide for a forum where the County Government can discuss their security

challenges and present them to the relevant National security organs for appropriate action and

feedback. The National Police Service Bill provides for a County Policing Authority which will be

chaired by the Governor with the mandate to identify security priorities and challenges within the

County and advise the National Security Organs for appropriate action.

Because national security is broader than policing, it is important for national security architecture to

be developed within the framework of the National Security Council to provide a platform for the

County Government to discuss their security challenges with the National Security Organs in the

County. This platform should be organized in the spirit of community partnership with

police/security organs which are critical in effective security management.

It is therefore, recommended that, the National Government initiates consultations with key national

security actors so as to develop a national security bill and architecture that provides for a

partnership between the National Government and County Government in the management of

security in the county. In this regard it is envisaged that the security architecture in the County should

provide for a policy organ chaired by the Governor and an operational security organ to take

operational decisions and action.

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CONCLUDING REMARKS

It has been shown that county governments have powers to decide on their administrative structures,

including exclusive control of its public service. The structure is expected to be designed around

functions that the counties identify as important for their development. The structure is also expected

to be cascaded to lower administrative units, primarily the sub-county, the ward and the village where

necessary.

It is proposed that during the transition, before county governments appoint their own staff national

staff is retained in counties. This is necessary to ensure that service delivery is not interrupted.

Thereafter county governments through their Public Service Commissions will appoint their own

staff.

In the case of the Provincial administration and the security arrangements in counties, it is proposed

that a taskforce be established to restructure the system; and, an evaluation be undertaken to

establish the optimal staff establishment after the proposed restructuring.

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CHAPTER SIX: FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY IN

KENYA

Overview

This chapter discusses principles of functions and competency assignment, including the principles of

subsidiarity and transferability of functions; criteria for unbundling functions and competencies;

consequences of ineffective functional and competency assignment; categories of functions, including

inclusive, concurrent and residual function; functional distribution under the Constitution of Kenya

2010; and organisational options for effective service deliver.

Realization of developmental devolved government in a manner that supports the overall objectives

of the Constitution of Kenya, 2010 will require efforts aimed at building new and strengthening

existing institutions. The devolution effort will require transparent effort to assign functions,

competencies and responsibilities to multiple tiers of government and administration, non-state

actors and private companies to fulfil the functions in a manner that delivers the requisite public

services. These multiple sets of acts must be configured to work in a coherent, coordinated and

cooperative manner through clear definition and appropriate assignation of functions.

Key issues in respect of service delivery based on the functional assignment include:

1. Achieve clarity in the functional assignment through unbundling and assigning competencies

between the national and county governments;

2. Determine the service level gaps in respect of each competency;

3. Determine the expected performance level;

4. Assign funds to levels of government according to their service delivery mandates;

5. Identify the capacity constraints;

6. Develop a short, medium to long term capacity building programme

7. Review the organisation of national government (ministries/departments) to reflect the

optimal assignment of functions as anticipated under the CoK 2010

The issues involved in closing the service delivery gap revolve around understanding the existing

service level gaps at the national, county and between county levels. Based on nationally accepted

standards, a county level of service gap analysis is required. The competencies to close these gaps

must have assigned funding, which must assure optimal vertical and horizontal balancing to avoid

political and macroeconomic instability.

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Exclusive functions can be performed by only one level of government; concurrent functions can be

performed by two or more levels of government; while residual functions reside with the original

level of government which existed before the creation of the other levels of government.

The organisational options for effective delivery discussed in the chapter include public sector, private

sector, community and public private forms of service delivery. The manner in which the public sector

is organized for service delivery is important. Options which both the national and county

governments could in addition feasibly use to deconcentrate delivery of public services in a manner

that is efficient and effective are discussed. A key question is the interface if any with the national

administration and the embedding of mechanisms for effective citizen participation. One option is the

establishment of central government offices in counties to implement national policies on behalf of

the national government, where these are not delegated to county governments. Administrative

coordinating mechanisms would need to be put in place to avoid conflict with county governments

when legitimately executing their mandates.

Functional responsibilities are what role players – governments at all levels and non-government

institutions – are expected to do in the process of delivering a country’s public services. Clarity in this

framework is key to effective identification of and allocation of other resources such as staffing and

financial resources. Where functional assignment is not properly done, public services will be

inefficiently provided and scarce resources inappropriately utilized. A major consequence of this lies

in the resultant lack of competitiveness of local and sub-national economies as well as provision of

public services in a manner that is unresponsive to the welfare needs of citizens. It can and usually

exacerbates lack of inclusiveness and can over the long term act as a threat to national cohesion.

Policy Options and Recommendations

The Constitution of Kenya, 2010 has made major strides in responding to the nation’s governance

challenges. This notwithstanding, the assignment of functions to the national and county

governments through other provision of the CoK, 2010 and especially the Fourth Schedule point to the

need for a unifying framework for the progressive transfer of functions. It is therefore proposed that

a Framework Policy Paper on Functional and Competency Assignment be developed to act as the

reference point for efforts aimed at transferring functions in government.

To avoid a multiplicity of uncoordinated efforts across the public sector, it is proposed that the

Executive lead a unified process of distribution of functions, competencies and responsibilities

between the national and county governments in the first instance. This process should be, in the first

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phase, largely administrative and guided by the Cabinet Committee on Implementation of the

Constitution as the final policy decision point. This committee will be supported by a mirror

committee of Permanent Secretaries, who will in turn work through a Technical

The Technical Working Group (TWG) will guide actual implementation through sectorally defined

functional and competency assignment teams (FACTs). The main implementation document for these

teams will be the Framework Policy Paper on Functional and Competency Assignment and their main

outputs will be Draft Sector Functional and Competency Assignment Policy Papers that will be

cascaded up to the Cabinet for approval. This will form the principal basis for transfer of functions in

the public sector.

In order to anchor the process and to accord with good international practice, it is proposed that the

Devolution Bill be formulated to incorporate matters pertaining to transfer of functions. In addition,

this process must be supported by a targeted public communication and engagement strategy

supportive of the goals of the functional and competency reassignment exercise.

The main outstanding issues are the finalisation of the framework policy paper for functional

assignment, its approval and implementation to rationalise functional assignment within government.

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CHAPTER SEVEN: INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED GOVERNMENTS

INTRODUCTION

Integrated development planning is important for enhancing the efficiency and effectiveness of public

policy. In the context of devolved government it will be instrumental in ensuring that the envisaged

development is leveraged so that resources available to the County Governments address the needs of

citizens. A key concern for effective and efficient integrated development planning is an

understanding of Kenya’s human settlement pattern. Kenya’s population is expected to reach 64

million persons by the year 2030 and will be largely youthful and significantly urbanized.

Settlement dynamics exerts extreme pressure on the country’s natural resource base and ultimately

food security and sustainable development. The differential population growth rates and distribution

also have implications for the functional boundaries for service delivery. Rapid urbanization and in

particular growth of these urban areas beyond political-administrative areas will promote through

efficient service delivery.

Integrated development planning should therefore address the emerging issues related to

demographic patterns, urban-rural linkages, challenges of urban sprawl and service provision across

county boundaries. This will require creation of supportive policy and institutional frameworks.

INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC SERVICE DELIVERY

Place of Integrated Development Planning

Integrated development planning is a process through which devolved governments can actualise

their short, medium and long-term plans. The resultant plans are comprehensive, strategic planning

frameworks that will assist counties to achieve their developmental mandate. They will assist the

devolved governments to align national and devolved government development and to align spending

priorities, and financial and institutional resources behind county policies and programmes. The plans

will also serve as a basis for engagement between local government and the citizenry at the local level,

and with various stakeholders and interest groups. This is important because participatory and

accountable government only has meaning if it is related to plans and resource allocations.

The counties face challenges in addressing the development constraints arising from the demands of

the new constitution and improving the welfare of their citizens. The imperative of building attractive

and sustainable settlements to improve the livelihoods of local communities is necessary. These

challenges, including uncoordinated planning and development, could be addressed by harmonising

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sectoral, national, and local planning processes. This will achieved by developing a clear and

compelling economic and social vision for their areas.

Constitutional Basis for Integrated County Development Planning in Kenya

The Constitution assigns development planning to both levels of government. County governments

are in particular assigned county planning and development, including statistics, land survey and

mapping, boundaries and fencing, housing, electricity and gas reticulation and energy regulation.

Other functions areas that would require planning that are assigned to counties include county

transport, country agriculture, county health services, as well as trade development and regulation. In

respect the counties have the necessary functions to influence county economic development,

including the progressive realization of the provisions of the Bill of Rights.

If counties are to benefit from integrated development planning, there will be need for legal and

institutional mechanisms to foster and guide the progressive realization of a society led by planning.

In this regard, it is proposed that a County Development Planning & Facilitation Bill, 2011 to provide a

general framework for integrating economic and spatial planning be passed. The objectives of this Bill

should be to facilitate and guide the development a strategic, integrated development planning

framework for counties in Kenya. The legislation will in particular:

provide for clear spatial objectives, including land use and settlement patterns;

require them to develop clear service delivery objectives in terms of standards and levels of

services as well as time bound plans for their achievement;

link national, regional, county, sub-county and ward level planning and development control

activities

The legislation will require that county plans are linked to national development vision and strategy

and that plans are coordinated at the national and county levels. The bill will require that the

following instruments be compulsory requirement for all county governments, namely:

County Spatial Plan: this will provide a spatial expression of the social and economic

development programme of the county, with clear statements of how it is aligned to and at the

regional and national level in a manner that harmonizes the sustainable development of the

county and Kenya. It forms the basis for other sub-county plans and will be a prerequisite for

appropriation of resources.

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County Institutional Plan: this will elaborate the capacity building measures required to

strengthen County Level institutions, organisations, laws, regulations and processes, in a

manner that will lead to the effective application of the plans;

County Human Resources Plan: will focus of enhancing the skills levels within the county to

enable adherence and achievement of county and national development imperatives;

County Performance Management Framework: will be designed to facilitate the objectives

of the county as articulated in the County Spatial Plan by ensuring that it responds to the needs

of individuals and communities; prioritises actions and activities including resource acquisition

and utilization; promotes accountability for public service delivery; ensures citizens get value

for money and motivates county staff to strive for enhanced performance.

It is proposed that County Government plans are translated to 5-year delivery programs and projects.

More importantly, county plans will a major tool for budget and expenditures by county governments.

In the transition process, the inaugural Governors should be mandated to develop plans and have

them approved by the count assemblies within the first 12 months. Each county Governor would in

addition be required to make an annual “State of the County Report” that would provide indications as

to progress in achieving the plans by their administration, including a statement of the challenges they

face.

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CHAPTER EIGHT: INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION

INTRODUCTION

Devolution constitutes a strong anchor against concentration of power in the Executive and engenders

co-operative governance. It also accommodates diverse interests and avails an environment of public

participation by the people in the manner they are governed. The Constitution provides for National

and County Governments as distinct and yet interdependent levels. The principle of cooperative

government regulates the relationship between and requires integrity at each level of government. In

addition, government activities must be coordinated in order to avoid the wastage of scant resources.

Where conflicts occur, these ought to firstly, be resolved through alternative dispute resolution

processes with court action being the last resort. Functions and responsibilities too must be

deliberately and rationally distributed in order to enhance the efficiency and effectiveness of

government as a whole.

A BRIEF OVERVIEW OF KENYA’S ADMINISTRATIVE SYSTEM

Kenya’s administrative system, prior to the adoption of the new Constitution, was informed by its

strong centric policies within a unitary system of government. Central government was supreme and

Kenya’s post-independence administrative experience was characterized by delegation of powers to

sub-national units at six levels, namely, sub-locational, locational, division, district, provincial and

national. The official rationale, particularly during the nineties, was that national unity could only be

harnessed through a strict central ordering of politics and the economy. In this regard, local

government became an effective mechanism for limited decentralization with the center retaining

complete control over local authorities. The defining elements of the new constitutional order are co-

operative government and citizen participation throughout the administrative and legislative

processes.

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RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS

Rationale for Intergovernmental Relations

Article 186 of the Constitution provides for the functions and powers of the National and County

Governments respectively and the powers within the concurrent jurisdiction of each of those levels of

government. Both governments cannot, therefore, execute their constitutional mandates without

supportive structures for intergovernmental co-operation.

Principle of Fidelity to the Nation

Article 10 (2) of the Constitution states that the national values and principles of governance include

patriotism, national unity, sharing and devolution of power, the rule of law, democracy and

participation of the people. This is the principle that requires the people of Kenya to understand that

we are united in diversity, the operationalization of County Governments notwithstanding.

Principle of Unity in Diversity

In the preamble to the Constitution, the people of Kenya express pride in their ethnic, cultural and

religious diversity and declare the determination to live in peace and unity as one indivisible

sovereign nation.

Principle of Cooperation

Article 189 of the Constitution provides for mechanisms of cooperation between the levels of

government. The new political system requires duty bearers to work in consultation, exchange

information, and have respect for organs, institutions and structures as the law provides. Such

cooperation includes fostering national unity, harmonizing policy formulation, coordinating of socio-

economic policies, implementing of legislation, enhancing capacity and facilitating National and

County Governments’ operations. This principle assumes importance in view of the need to manage

shared resources between the Counties.

Principle of Interdependence

Article 6 of the Constitution provides for interdependence in the operations of the two levels of

government. These are distinct and inter-dependent and shall conduct their mutual relations on the

basis of consultation and cooperation.

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Principle of Oversight

Article 174 states that the objects of devolution of government are to promote democratic and

accountable exercise of power and, to enhance checks and balances and the separation of powers.

This principle requires that both levels play an oversight role and as a result protect and uphold the

Constitution.

MECHANISMS OF CO-ORDINATION AND CO-OPERATION

National Government and County Government

The areas of potential conflict between the two levels of Government include issues relating to

financial management and resource allocation criteria and intervention in and suspension of Counties

by National Government. There is a likelihood of abuse of power by National Government when

exercising oversight authority over County Governments. The County Governments could, also, abuse

the powers granted to them by the Constitution and therefore fail to deliver services to the citizenry.

Mechanisms of co-operation and co-ordination must address those concerns.

Recommendations

We recommend;

1. An intergovernmental relations legislation and where practicable, concrete decision-making

mandates be assigned

2. An intergovernmental/co-operative National Government ministry and corresponding County

departments / ministries to co-ordinate matters of intergovernmental co-operation

3. A policy direction that National Government should endeavor to focus on policy formulation

and enhancing the capacity of the County Governments, while the latter concentrate on

implementation of projects and efficient delivery of services

4. National Government provides transitional model legislation where practicable pending the

enactment by the County Assemblies of their own context specific legislation

5. An association of organized municipal authorities be underpinned in the intergovernmental

relations legislation

6. A National and County coordinating council be established comprising the National President,

Deputy President, Cabinet Secretaries, the 47 County Governors and the Chairperson of the

association of the organized municipal authorities

7. The County Executive ministries be coordinates to the national ministries where practicable.

Sectoral Forums/Working Groups comprising of Cabinet Secretaries, the corresponding County

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Executives be established in order to facilitate and co-ordinate the execution of national

government functions (police services, health, education, immigration and citizenship etc)

within the Counties

8. The Committees of the County Assembly coordinate to the National Assembly Committees

where practicable. Working Groups be established

Inter-County Government Co-operation

The areas of potential conflict between the County Governments include issues related to utilization of

trans-county shared natural resources (forests, game reserves, rivers, lakes etc), sharing of existing

assets in the provincial headquarters and developing joint infrastructure projects (roads and water

projects). This requires the establishment of joint fora for co-ordination.

Recommendations

1. The enactment of intergovernmental relations legislation to guide inter county co-operation

2. The incorporation of legislation by reference be underpinned in the intergovernmental

relations legislation to enable Counties that are subject to the asymmetrical devolution of the

legislative function or those that are yet to legislate a particular law to adopt the legislation of

another County on a related field

3. There be established a Council of Counties comprising the 47 Governors with the chair on

rotational basis, and shall hold a minimum of two sittings per year. Its steering committee be

composed of senior public servants responsible for intergovernmental affairs from each

County. This would report to the National and County Co-ordinating Council on matters of

national concern and progress on the implementation of national policy and legislation within

the County

4. Additional fora to address issues of trans-county concerns be constituted on a needs basis

5. An inter-municipality forum comprising the elected representatives to convene at least twice a

year

Intra County Co-operation

The County Government comprises of the County Executive and the County Assembly. There are

other elective positions including the Senators and the Members of the National Assembly. It is also

envisaged that some sub county units (cities and urban areas) will have elected members. It is,

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therefore, imperative that mechanisms of co-operation and co-ordination be established in order to

improve service delivery.

The principle that the devolution design ought to assume a broad institutional interpretation requires

that public participation including also the involvement of non-state actors is emphasized. In this

regard, also, the role of the public private partnerships is critical.

Recommendations

1. The relationship between the Senate and the County Assembly be coordinated by requiring the

County Assembly to provide full and regular reports to the Senate on a bi-annual basis and the

Senate to in turn provide the County Assembly with feedback on a bi-annual basis

2. Members of the National Assembly in their specific County be required to attend at least three

County Assembly meetings a year but without the right to vote

3. An intra-County forum comprising of the Senator, Governor and Members of the National and

County Assemblies be established to hold consultative meetings on a bi-annual basis

4. An inter-municipality forum be established between the County government and its sub units

5. County working groups comprising representatives of Civil Society Organizations, Community

Based Organizations (with representation of minority and marginalized groups), private

sector, professional associations and respective County Executive technocrats be established

CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES

Concept of Cooperative Government

Article 189 of the Constitution lays the framework for cooperation between National and County

Governments. Each level of government is supposed to perform its functions in a manner that

respects the functional and institutional integrity of the government at the other level. The

government at either level is supposed to assist, support and consult and as appropriate implement

legislation of the other level.

Need for Joint Committees and Joint Authorities

The Constitution provides for the formation of Joint Committees and Joint Authorities to facilitate co-

operation at both levels and also inter county co-ordination in the performance of functions and

exercise of power.

We recommend that the Joint Committees and Joint Authorities be inclusive in representation by:

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1. Having representatives of both levels of Government and representatives for County

Governments be nominated by the Council of Counties, approved by the Senate, and

appointed by the Governor

2. Representatives of the National Government will be nominated by the relevant Cabinet

Secretary / competent authority, approved by the National Assembly and appointed by the

President.

The Role of Senate

Article 96 of the Constitution provides for the role of the Senate. The Senate, inter alia, represents

Counties and serves to protect their interests and their governments. It participates in the law-

making function of Parliament by considering, debating and approving Bills concerning counties in

accordance with the Constitution. It is also involved in determining the basis of revenue sharing in the

Counties and also exercises oversight over the same. Structured engagements between the Senators

and the Counties are, therefore, an imperative in order to assure effective citizen representation.

INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION

Intergovernmental Dispute Resolution

Article 189 of the Constitution provides that both Governments shall exercise their powers in a

manner that respects the functional and institutional integrity of each level. It further states that

Governments shall make every reasonable effort to settle disputes by alternative dispute resolution

mechanisms, including negotiation, mediation and arbitration.

The potential areas of conflict include the exercise of functions that lie within the concurrent

jurisdiction, allocation of resources and national government intervention and suspension of a County

Government. Agreements between Governments that exclude key partners could also strain relations.

The signatories to such agreements also need to be determined. Shared resources, if not properly

managed, could occasion inter-county conflicts and conversely, well managed joint activities between

Counties will enhance mutual co-operation. At the intra county level also, poor governance and a

leadership disconnected from the citizenry could fuel discontentment.

RECOMMENDATIONS

1. The intergovernmental relations legislation makes provisions for, inter alia,

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a. The “National Arbitration Council” and dispute resolution managers and functions

assigned

b. Protocols and codes of conduct

c. Village Council of Elders and specify their mandate

d. A dispute resolution role for some cadre of the restructured Provincial administration,

for example, the Chiefs

e. Counties submit draft legislation to the Kenya Law Reform Commission in order to

assure that conflict of laws on account of concurrency of functions is detected early and

appropriate measures taken to avert the potential conflict

2. There be specification of signatories to National and County Government agreements and

designation of agreements that must be approved by Cabinet, those that are concluded on the

basis of a signature by the Cabinet Secretary responsible for intergovernmental affairs and

those where the signature of the sector Cabinet Secretary will suffice

3. A Requirement that cities and municipalities be included as signatories to agreements

concluded through municipal infrastructure programmes

4. Require that for purposes of co-ordination of the exercise of concurrent jurisdiction, both

Governments define and agree upon their respective roles and responsibilities

5. Require that Counties enter into horizontal agreements that address trans-border issues and

clarify signatories

6. Provide for the granting of incentives for Counties to undertake joint projects

7. Provide that Counties enact legislation to guide the conclusion of inter-county agreements

INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT

Article 190 provides that National Government may intervene if a County Government is unable to

perform its functions or fails to operate a financial management system that complies with the

requirements prescribed by national legislation. Intervention by National Government must therefore

only occur in the most clear of circumstances. The interim arrangement during the suspension must

also reflect the oversight role of the National Executive and at the same time provide assurance to the

affected County that the object and principles of devolved government are not eroded.

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Recommendations

1. With regard to intervention in Counties by National Government, the Council of Counties be

consulted and involved in decision-making

2. A Commission be established to run the affairs of the County during its suspension. Its

composition includes as chair, the Governor of a well-managed County nominated by the

Council of Counties, approved by Senate and appointed by the President, representatives of the

Public Service Commission (PSC), the Kenya Private Sector Alliance (KEPSA), the Institute of

Certified Public Accountants in Kenya (ICPAK), the Law Society of Kenya (LSK), Civil Society

Organizations and the Attorney General.

CHAPTER NINE: CITIZEN PARTICIPATION AND THE PROTECTION OF MARGINALIZED GROUPS

CITIZEN PARTICIPATION

This part of the Interim Report by the Taskforce on Devolved Government seeks to present a

conceptual framework and normative implications on the basis of which citizen participation ought to

be understood and the underlying theory and practice of popular democracy should find

implementation space, particularly within the context of the new constitution in general and more

specifically within the realm of the implementation of the devolved system of governance.

But more particularly it seeks to locate service delivery as both the rationale for and the red meat of

citizen participation at any level of government. It also seeks to provide a conceptual overview of the

good governance implications of citizen participation, the corresponding strategic objectives of citizen

empowerment and operational modalities of direct citizen involvement in public affairs. This is done

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for purposes of underscoring its cross-cutting importance for good governance in open and

sustainable societies. The section thus succeeds demonstrating the crosscutting character of citizen

participation as an essential element in democratic development of sustainable societies.

Public participation in governance, in whatever form, is an approach to citizen empowerment that is

increasingly becoming a vital element of democratic theory and practice. Inspired by the spirit of the

African Charter on popular participation in development and transformation, the basic principles

underlying the practice of stakeholder engagement informs the treatment of citizen participation as a

crosscutting issue that needs to be mainstreamed in all aspects of governance. As a central principle of

public policy-making, it presupposes that all levels of government should seek to build citizen and

stakeholder involvement into their respective policy making processes and activities. This means that

if public participation is to be real and effective, sovereign citizens need to be involved in the design

and rolling out of the entailed process in order to obviate the formalistic trappings of democracy.

Relying on the rich and practical views generated during the public hearings and later collated and

triangulated against other sources of information on different aspects of citizen participation, the

section ends up suggesting broad-based modalities of citizen participation and the relevant statutory

instruments that will be required to anchor such modalities on a terra firma of constitutional

guarantees provided by the Kenyan constitution. Such modalities include: referenda, social budgeting,

petitions, County fora, public barazas, neighbourhood Associations, Town Hall meetings, monthly

revenue and expenditure reports, public access to contractor/supplier profiles, quarterly

development status reports, notice board announcement on job opportunities for citizens to and act

on, access use of ICT and web based public monitoring platforms. etc. The purpose is to:Improve

citizen-state engagement through the use of real time information about the status, and quality of

service delivery in local communities, Empower citizens with the requisite tools and channels to

actively advocate for the deliver of essential services, Motivate governments to act in response to

citizen’s demands, complaints and requests; Leverage the media, evidence-based advocacy and when

necessary, the systematic , progressions of citizen’s inputs up the administrative and legislative ranks,

to amplify these citizen’s voices and add pressure to relevant decision makers to act and address these

service delivery deficits.

By enhancing the accountability, transparency, responsiveness and hence legitimacy of the obtaining

political system, there cannot be any doubt that an effective citizen participation has the effect of

strengthening state sector by affording it the necessary democratic legitimacy through citizen respect

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for and positive engagement with public authority. In the end this will improve the ability of the state

to govern and to command voluntary obedience from its citizens.

It is suggested that a policy framework addressing the broad features of citizen participation be

developed at the national level to provide the framework conditions on the basis of which legislative

measures should be undertaken at the county levels to guarantee citizen participation spaces on the

strength of which to influence public decision making processes. Such measures should be

mainstreamed in the functional and sectoral jurisdictions like planning, budgeting ( finance),

environmental protection, legislation ( county Assembly standing orders) etc. This is envisaged to

avoid coming up with an omnibus legislative instrument which fail to address the specific citizen

participation challenges faced by Kenyans at various sectoral and jurisdictional levels.

PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS

The Constitution of Kenya 2010 (the Constitution) provides a legal framework for the recognition and

protection of the rights of the minorities and the marginalised communities and groups (herein after

referred to as the marginalised). The Constitution introduces a right based approach to development,

that is, an approach where everyone is entitled to development as a right and not as a favour from the

state.

The principles that guide this area are public participation and affirmative action. Article 10 of the

Constitution recognises public participation as a core value and principles that guide the

interpretation and application of the Constitution. Affirmative action is often used to denote a positive

step taken to reverse or mitigate past discrimination and historical injustices. Affirmative action

performs three key functions; First its remedies past discrimination through programs that can

benefit individuals or society as a whole. Article 56 of the Constitution provides for both. Second,

affirmative action enhances diversity so that a state will be able to grow with better values, peace and

stability. Third, affirmative action increases political power of the marginalised thus enabling them to

influence decision making.

Definition of Terms

Article 260 of the Constitution defines marginalised community as: a community that, because of its

relatively small population or for any other reason, has been unable to fully participate in the

integrated social and economic life of Kenya as a whole; a traditional community that, out of a need or

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desire to preserve its unique culture and identity from assimilation, has remained outside the

integrated social and economic life of Kenya as a whole; an indigenous community that has retained

and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or

pastoral persons and communities, whether they are—nomadic; or a settled community that, because

of its relative geographic isolation, has experienced only marginal participation in the integrated

social and economic life of Kenya as a whole.

Under the existing international legal framework, there is no definition of indigenous people or

communities. But there are indicative characteristics that can define such a group. According to the

ILO Convention No. 169 Indigenous and Tribal Peoples Convention, the following characteristics

define indigenous peoples; Traditional life styles; Culture and way of life different from the other

segments of the national population, e.g. in their ways of making a living, language, customs, etc.; Own

social organization and political institutions; and Living in historical continuity in a certain area, or

before others “invaded” or came to the area. In addition, such group must be non-dominant. There are

factors that can point to the concept of non-dominance. They are; Numerical inferiority; their ways of

life and social organisation; and their distinctive cultures.

Article 260 of the Constitution defines a marginalized group as a group of people who, because of laws

or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one

or more of the grounds in Article 27 (4); i.e. any ground, including race, sex, pregnancy, marital status,

health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress,

language or birth. In this case women, youth and people living with disabilities are considered

marginalised groups in Kenya.

There is generally no single agreed definition of minorities in international law. But all definition is

based on relative numerical disadvantage based on age, sex, religion, ethnicity, race etc. There are two

ways of defining minorities. First are national minorities who are afforded protection for being a

minority in relation to the national demographics. The second is by looking at the minorities within

the geographical boundaries of the County. In the case of devolved units there is need to protect

minorities based on the demographics in a County. However to benefit from such protection8 and

affirmative action programs one must have substantial ties with the County.

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There are the various factors are that must be considered in determining minority groups: poverty

index, numerical inferiority, climatic conditions, baseline data, infrastructure development, economic

status, historical Injustices, Special groupings e.g. persons living with disabilities, language, religion

and age.

Problems Faced by the Minorities and Marginalised Groups & Communities

There are many problems currently faced by these groups include: First Loss of land rights, historical

land injustices and exploitation of resources without their participation or accruing the benefits. This

is illustrated by numerous court cases involving such groups as the Maasai, Endorois, Ogiek among

others.

Second, is the government biased development policies. In Kenya, development has been projected as

a favour that is only extended to those who have the numbers to influence those in power to extend

development to them in exchange for votes. Third, is lack political representation, recognition and

participation is another problem. By virtue of their numbers, the minority and marginalized

communities are unable to succeed having one of their representatives garner an elective office.

Fourth is the problem of the denial of cultural rights. The minority indigenous groups have suffered

loss of culture as a result of the domination by the other communities and in some cases through

forced integration.

Fifth is also the problem of insecurity as areas occupied by the minority and marginalised

communities have serious insecurity problems.

Sixth, the minority groups are also often excluded in accessing employment opportunities. In a

country that largely relies on numerical strengths, the majority groups domineer over the minority.

Other problems include: Being subjected to cultural beliefs and practices that subordinate them;

Exclusion from leadership and decision making; Lack of access to property; Discriminative laws and

policies; Lack of affirmative action; Human trafficking and prostitution especially on the part of

women and young girls; Violence especially against women and disabled; Restriction of the freedom

of movement and expression especially among the disabled.; Inequality in attaining citizenship

especially among women.

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Solutions Provided Under the New Constitution

Devolution is seen as a solution under Article 174 of the Constitution of Kenya. This provides that the

objective of devolution is to facilitate diversity, sharing of resources and participation and protection

of disadvantaged groups. But without further units of decentralisation devolution may lead to further

marginalisation. In the Kenyan case this remains a key issue especially in counties with ethnic

minorities such as Bungoma, Elgeyo-Marakwet, Migori, Tharaka-Nithi among others.

Article 10 of the Constitution provides the protection of marginalized as one of the national values,

Article 27 of the Constitution outlaws discrimination, Article 56 provides for affirmative action

programs for the minority and marginalised groups and communities, Article 91 mandate political

parties to respect and include marginalised groups in leadership and Article 200 provide that one

principle governing public finance is the protection of the marginalised.

Recommended Legal, Policy and Institutional Interventions

First, units of decentralisations should be created considering the needs of marginalised groups. The

boundaries of these authorities should take cognizance of the interests of minority and marginalized

communities so that some authorities are curved specifically for such interest groups.

Second, there should be mandatory county development plans that will have specific procedures for

involving marginalised groups and communities. The process and implementation of the plans should

involve these disadvantaged groups. Budgeting processes should also involve them. There should be

mandatory monitoring and evaluation mechanisms that will target disadvantaged groups.

Third, marginalised groups and communities should be involved in county governance and public

service through targeted nominations in line with the affirmative action requirements of Article 56.

Fourth, delimitation of Wards should consider creation of wards that will target minority and

marginalised groups to ensure that they are able to elect a representative to the county assembly

instead of relying only on nominations.

Fifth, the Kenya Human Rights and Equality Commission National Equal Opportunities to come up

with Policy to guide the all country in the issues of protecting marginalised groups. They should also

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have officers that will monitor protection of marginalised groups at the County. A department within

the commission should be created that is focused on marginalised groups and communities. The

County government should establish a department that deals specifically on issues of marginalised

groups and communities and to advice the county government on the appropriate measures to be

undertaken in line with national policies and legislations.

Sixth, the County Government as a Facilitator of Minority and Marginalised Groups Rights should

ensure that: Indigenous peoples are allowed to maintain their distinct identities, to maintain their

languages, and to maintain the integrity of their relationship with their traditional lands. Thus,

developmental acts by the County governments must not violate these rights. County governments

should facilitate the attainment of such rights. What are the policies on education in mother tongue?

In this case, Counties are key in so far as pre-primary education is concerned as being at the centre in

relation to national legislation and policies.

Counties should also protect marginalized groups from harmful and repugnant cultural beliefs and

practices. They should work towards changing attitudes and perception of members of the public

regarding marginalized groups through such acts as the naming of streets and towns using minority

languages.

Counties should invest in culture and cultural activities with special consideration for the minorities.

The County government is empowered by the Constitution and allocated the resources to manage

minority issues under Schedule IV of the Constitution.

There must also be a deliberate effort to allow the minority and the marginalized to access

employment opportunities in the County.

Finally, Counties should protect of intellectual property of minority and marginalized communities,

including sciences, technologies, medicines, and knowledge of flora and fauna as well as arts and

performances.

Recommended Legislations

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In terms of legislative proposals is recommended that a Minorities and Marginalized Communities Act

be enacted to: define minorities and marginalized communities; Consolidate the benefits accorded to

these groups ; Provide legal and institutional mechanisms for realizing the benefits outlined in Art.56

and 204 of the Constitution.

Other legislations relating to Marginalized groups shall be provided for in the respective laws e.g.

Persons with Disability Act of 2003, and international conventions ratified by Kenya such as the

Convention on the Elimination of All Forms of Discrimination (CEDA) and the UN Convention on the

Rights of Persons with Disabilities. Other legislation on youth can be enacted.

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CHAPTER TEN: COMMUNICATION AND CIVIC EDUCATION

PUBLIC COMMUNICATION

The centrality of communication to the promotion of good governance and citizens’ participation is

now an accepted principle internationally. The role of communication is demonstrated in countries

that observe the rule of law, principles of participation and respect of the basic rights of citizen

participation as key components of a democratic society.

The role of public communication and information needs to be seen and understood as overarching to

all governmental activities and interventions. Thus, public communication and provision of

information to citizens must be integrated into national and counties’ democratic and development

agenda. This is critical in creating the interface between the various existing communication

structures such as the media and their roles in enhancing citizens’ participation, feedback and the

media’s role in awareness creation, analysis, interpretation and continuous rationalization of

development issues nationally and at the county levels.

Communication and information are variables that are constantly needed by people in a democratic

society at all levels for purposes of governance and development. Similarly, general communication

and provision of information is recognized as a critical ingredient to the practice of democracy.

Peoples’ participation in governance and decision making processes can be greatly improved through

institutionalized and professionally structured communication.

All forms of development are intrinsically linked to democratic governance and the existing political

elasticity that allows full participation of citizens in national and county government respectively. The

promotion of development activities and goals, in one way or another will require the inclusion and

full integration of communication and information.

Populations in counties live largely in the rural areas which are at times far apart due to their

geographical locations and infrastructural arrangements; this continues to separate them. It is thus

recommended that the counties embrace the role of the media as agents for transmitting information

and news needed to balance the knowledge gap and stimulate the levels of interest and participation

in specific counties and nationally.

During the county consultations it was evident that members of the public are fairly clear on the

expected role of communication, information, the media and IT in the promotion of governance in the

counties. The role of communication is also understood as being critical in the analysis, interpretation,

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rationalisation and demystification of various development agendas that are key at both national level

and within the counties.

In this regard, it is proposed that all counties embrace the role of communication and information in

the promotion of development and structures, channels and information outlets be created in all the

counties.

The current Constitution has made significant attempt in making fundamental constitutional

provisions on; the freedom of expression in Article 33 (1) to (3), freedom of the media in Article 34 (1)

to (3), access to information in Article 35 (1) to (3) and freedom of association in Article 36 (1) to (3).

Furthermore, the Bill of Rights applies to all law and binds all state organs and all persons-Chapter 4

Article 20 (1). These provisions when taken together with the provisions in Article 33 to Article 36 (1)

to (3) provide critical and significant constitutional guarantees on the press freedom, access to

information and freedom of expression. It is therefore envisaged that the counties and national

Government should formulate policies and enact the necessary legislation and amendments of the

various existing Acts so far identified to bring them in line with the current constitutional

requirements.

On the other hand, private media outlets and those owned by various interest groups must make all

the necessary legal adjustments as well so as to create greater communication flexibility, space and

enhanced role of the media in aiding participatory democracy. However, continuous attempts must be

made in tackling factors that continue to limit the functional roles of the media both at the national

and county levels. These include; the political interference with the work of the media, concentration

of media ownership in the hands of few people, legal limitations, human expertise, access to news

print due to the fact that the bulk of the material are imported, economic limitations, ideological

influence on editorial contents, the cost of sourcing contemporary media related technology and

training needs for the future.

Some of the key issues and recommendations are as follows: Communication, information and the

various media channels play a critical role in the promotion of good governance and the development,

thus the following are some key recommendations, possible policy options and legal matters relevant

to the communication, information and governance:

That public communication, information and the media should be made an integral part of democratic

governance and at the same time play an overarching role in the various aspects of government at the

national and county levels.

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Broad public policies and extensive legal provisions based on the media ownership, questions of cross

–media ownership and self regulations should be in place. Also

there is need to develop public policy framework for the counties with regards to guidance on the

relevant types of media to be created at the county levels and why? And that critical attention be given

to traditional media as well.

Public and legal policy relating to the editorial policies regarding content should be put in place and

Public policy on the creation and development of the various relevant community media channels and

language of choice be instituted.

A county plan for building information and communication infrastructure in the counties be

established and the need to Adopt policies that shall eliminate or reduce import tariffs, taxes and

other legal barriers to the use of ICTs at county levels.

Establish an enabling environment to foster the flow of development information and communication

at all levels of the counties, implement policies that seek to computerize and promote the use of ICTs

in Government services at all county levels

Conduct as need may arise, communication and information needs analysis to determine

requirements and set up information and communication services in key sectors in the various

counties as per priorities

Identify and develop IT application areas with the highest impact on socio-economic development at

the county levels and take steps to facilitate the establishment of locally based low cost and widely

accessible Internet services and indigenous African information content in the counties

Prepare and adopt plans in the counties that seek to develop human resources in ICT, and adopt at the

various counties policies and strategies that seek to increase access to communication and

information facilities with priorities given to serving rural parts of counties, grassroots and the

marginalized groups such as women, youth, aged, minorities, and children.

Key Issues and recommendations include the following: It has been widely agreed that the critical

roles played by communication, information and the various media channels in the promotion of good

governance and the development.

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These functions may for example relate to;

Principle roles of communication in governance and participation in development, the principle

relating to the role of Communication and information in the promotion of development, Principles

relating to the freedom of the media

Article 34(1) states in part that freedom and independence of electronic, print and all the other types

of the media is granted and that the state shall not exercise control over or interfere with any person

engaged in broadcasting the production of circulation of any publication or dissemination on

information by any media or penalize any person for any opinion or view or content of any broadcast,

publication or dissemination

Principles relating to the access to information-Article 35(1) states that every citizen has the right of

access to information held by the state and Principles relating to freedom of association.

This is provided for under Article 36(1) to 3, where the right of association which includes the right to

form join or participate in the activities and other rights are recognized.

We recommend that the use the constitutional provision under the following articles:

Article 33(1) to (5), 34 (1) to 4, Article 35(1) to 3 and Article 36(1) to 3 and suggest a way of

operationalising these provisions to inform the various relevant laws that might have been envisaged

by these constitutional provisions.

It is also recommended that thorough legal review be done of existing laws for purpose of amending

them so that they conform to the provisions of the current constitution. These Acts are: The

Defamation Act, Preservation of Public Security Act, Chiefs Authority Act, Official Secrets Act, Treason

and Sedition Acts provided for under the penal code section 57 (1), The Prohibited Publications Act

as provided for under section52(1) and 2, Films and Stage Plays Act, Communications Commission

Act, Kenya Broadcasting Corporation Act, the Freedom of Information Bill

Some of the policy issues that we recommend include;

Public communication and information be integrated in various aspects of governance as an

overarching principle. There should be policy that deals with the question of media ownership and

communication outlets at the county outlet as well as Policies on deregulation and regulation of media

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mechanism, editorial, IT- information Technology and community media(ie community radio,

community theatre groups and regulation of the media

In terms of legislation is proposed that an overarching organic law be enacted at the national level

linked to the constitutional provisions and the Bill of Rights specifically on:

(a) Freedom of Expression as detailed under Art.33 (1) to (3)

(b) Freedom of the Media as detailed under Art. 34 (1) to (5)

(c) Access to Information as detailed under Art.35 (1) to (3)

(d) Freedom of Association as detailed under Art. 36 (1) to (3)

There is need to review the existing Acts of Parliament in the area of communication and information

to ensure that they take into account the current constitutional provisions in Art 33(1) to (3), Art 34

(1) to (5), Art 35 (1) to (3) and Art. 36 (1) to (3)

CIVIC EDUCATION ON DEVOLVED GOVERNMENT

Civic education is political education or, the cultivation of the virtues, knowledge, and skills necessary

for political participation. It integrates both formal settings (schools) and informal settings (families,

communities, libraries, houses of worship, workplaces, civic organizations, unions, sports teams,

campaigns and elections, mass media).

Integrated civic education is a key factor in building a symbiotic culture of accountable government

and responsive citizens this is why The Task Force has been mandated to ensure that policy and

legislative frameworks that anchor devolution are buttressed with civic education to enable Kenyans

understand, embrace, support, promote, and protect the gains of devolution.

Civic education is critical in post-Constitution making and Constitution implementation phase in

Kenya due to: Conflictual referendum where political positions for and against were adopted, a large

mass of the population remain ignorant of the constitutional provisions, lack of experience with a new

system ushering in major institutional, structural and political changes, a volatile political situation

where changes will have an unprecedented impact on the countries’ future and the need to sustain

democracy, because of its combination of numerous and more varied points of shared common

interest and its requirement of continuous readjustment through meeting the new situations

produced by varied intercourse.

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Civic education on devolution is critical in enhancing Kenyans’ participation in the success of the

devolved system particularly in post-implementation legislative phase. This will help enhance

Kenyans’ passionate participation in the economic and the political socialization of the devolved

system.

Civic education should therefore be accessible to all the diversity of Kenyan people. The information

conveyed should be sensitive and collaborating the Constitution and related legislation; and designed

on the basis of relevance to building a united Kenya. Of particular importance is the need to create a

culture in which Kenyans are encouraged to participate in self-actualization.

The main objective of civic education is to convey knowledge of Kenya’s political system and context.

This will include information on the devolved system of government; the nature, powers and

operations of the National and County institutional offices (distribution of functions); inter-

governmental and intra-County relationships; allocation and distribution of resources; and structures

and institutions of devolved government, among others, including transitional issues related to

elections, the principal economic, social and political issues facing County administration.

Through civic education, Kenyans can be taken out of a narrow circle of personal and family

selfishness, to the comprehension of joint interests, the management of joint concerns so that they

may act from public or semi-public motives which unite instead of isolating them from one another.

There is the inspirational notion that through devolution, Kenyans will act through justly

administered institutions that will stabilize and perpetuate the good society.

Civic education on devolution will be used to describe and explain the constitutional provisions on

devolution; the legal, structural governance and political changes; and for the dissemination of

information, materials and programmes designed to inform the people about the changes, their rights

and responsibilities; and the specific and mechanics of County governance and relationships with the

National government.

This will inherently involve providing information on who is responsible for what functions.

Additionally, civic education may incorporate voter education; who will be candidates; where and

how to register; political parties lists; how electors can check the voter lists to ensure they have been

duly included; what type of elections are being held; where, when and how to vote; and how to file

complaints.

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Information will be made available and accessible to all so as to achieve universal coverage of the

Country allowing for use of different languages in a county, even if there is only one official language.

Specially target groups will be; minorities, internally displaced persons, the youth and other

marginalized segments of society.

Information will be relayed in; informal settings, educational institutions, through live, interactive

coverage on national TV stations, online blogs and online interactive questionnaires.

Stakeholders will be engaged in the development of a sensitive message that disseminates a positive

image of devolution through mobilizing public opinion in favour of maintaining the tempo of

reconstruction under devolution, integrating the media to play a key role in breaking down negative

stereotypes against devolution and encouraging Kenyans’ full participation and mobilizing the

international community to make constructive contributions to civic education, drawing on its

substantial experience in promoting democratic participation worldwide.

Because Kenya is emerging from conflict, civic education on devolution curriculum should motivate all

Kenyans to positively support and promote the ideas of devolution.

It should also begin with an explanation of the National Accord of February 2008 and the attendant

mechanisms such as the Krigler and Waki Reports; the institutional reform process setting in place

the Interim Independent Electoral Commission (IIEC); Committee of Experts (CoE); the Interim

Independent Boundaries Commission (IIBC); Truth Justice and Reconciliation Commission (TJRC);

and National Cohesion and Integration Commission; the outcomes of these Commissions and how

they have contributed to the reform process.

It should describe the constitution-making process, culminating in the new Constitution focusing

citizen desire for a democratic and equitable society, human rights of all citizens (especially their civil

and political rights with regard to governance); desire for full participation in the political process and

finally it should highlight the importance of citizen knowledge and expertise in the areas of

reconstruction and national reconciliation, as well as the importance of citizen equal involvement in

the political process.

On policy issues, it is proposed that a national comprehensive curriculum on Civic Education on

devolution should be developed through partnership of the government and non-state actors, policy

should ensure that the material developed for civic education is accurate, relevant and politically

neutral.

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All materials should be reviewed to ensure they are politically neutral and gender-sensitive, sufficient

resources should be provided to ensure such programmes reach all citizens, and all people should

have access to civic education on devolution.

Special civic education programmes should be initiated targeting women, minorities, displaced

persons, youth, and people with disabilities, and others less likely to access mainstream delivery.

Gender-sensitisation programmes be developed for personnel responsible for civic and voter

education and all civic education programmes should be monitored.

Devolution messages should highlight the capacities of devolution institutions, encourage and

promote citizen’s full participation in the devolution implementation process, the country’s leadership

and citizens need to understand that deviation from set principles and objects of devolution are not

acceptable and constitute fraudulent impunity and linkages should be created between civic

education and training for the public servants and politicians.

With regard to legislation, it is proposed that the national law entrench the permanent creation of

National Civic Education Body. Existing legislation be reviewed to take into account the proposed

curriculum suggested for national civic education e.g. The Education Act, the NGO Act and the

Communication Commission Act

There are several outstanding issue son civic education, these include; comparative models for civic

education, integration of civic education on devolution in national civic education on the constitution,

legislation on civic education is required and design of civic education curriculum.

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CHAPTER ELEVEN: BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE

Overview

This chapter covers a review of general principles of staff establishment and regulation of service;

challenges in human resource management; county public service, including staffing of county

governments; norms and standards; promotion of values and principles in county public service; staff

audits; harmonization of terms and conditions of services; protection of accrued pensions, other

benefits and training as well as capacity building of staff in the county public service.

The principles of staff establishment and regulation of the service revolve around the issues of

appointment, disciplinary control and transfer of public officers while those of management and

administration basically focus on formulation and implementation of policies intended to facilitate

delivery of public services. These include terms and conditions of service of employees.

These principles will form the primary basis for formulation of a human resource management and

development framework in county governments. Various provisions in the Constitution especially on

Public Service, Public Finance and Devolved Government will have profound implications on this

framework. The public service both at the national and county levels is expected to contribute to the

achievement of the economic, social and political aspirations as articulated in various government

policies. The ability of the Service to effectively play this role will significantly depend on the form

and nature of the restructuring that it will have to undergo.

The governance of the public service is a shared responsibility between various institutions. In a

number of countries, these institutions play complementary but distinct roles in ensuring the

establishment, regulation and management of the public service within certain general principles. The

principles include objective, fair and competitive recruitment criteria, performance management and

evaluation, and consistent disciplinary processes among others. The staffing and abolishment of

offices in the service of county governments will be guided by optimum number of staff and skills mix

required to perform the functions assigned to county governments under the fourth schedule of the

constitution.

In the Commonwealth and a number of other countries, Service Commissions or equivalent

institutions are constitutionally responsible for staffing of the public service while formulation and

implementation of policies on terms and conditions of service is the responsibility of the relevant

ministry or department in the Executive. Whether or not the shared responsibility is carried out at

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national government or devolved levels of government depends on the constitutional provisions in

respective countries.

Conclusion and Recommendations

The current institutional, governance and human resource structures which were developed and

evolved under a different constitutional and legal order need to be reformed to be in tandem with the

provisions of the constitution. Towards this end the existing public service human resource

management policy framework, statutes and practices and the attendant challenges that constrain the

public service in effectively delivering on its mandate will need to be addressed. In particular, a

creation of a County Public Service Board to carry out the responsibility assigned by the Constitution

in article 235 is recommended. Other issues that need to be ensured include:

i. Drafting of legislation of a County Public Service bill to provide for staffing of county

governments as provided for under Article 235.

ii. Audit of the existing human and technical capacities in the Public Service disaggregated into

different cadres to document the number of employees and the skills available in the civil

service, local authorities, state corporations and regional bodies; facilitate re-distribution and

deployment of staff to counties.

iii. Imposition of an immediate embargo on non essential employment in the entire public service

to facilitate deployment of existing capacity and avoid staff retrenchment once the counties are

operational; avoid overstaffing through unscrupulous and supply-driven recruitment during

the transition period.

iv. Existing terms and conditions of service for both the national and county staff to remain

unchanged until a framework for harmonising terms and conditions of service is in place.

v. Developing a Capacity Building Framework that identifies human resource and institutional

capacity gaps and specific interventions especially on; training programmes, optimal staffing;

financial requirements, physical infrastructure (office facilities etc). This will be aimed at

equipping identified county staff with skills necessary to deliver functions at the county

government level and avoid overwhelming counties with responsibilities they are unable to

carry out.

vi. Undertaking institutional capability assessment for Kenya Institute of Administration (KIA)

and all the Government Training Institutes to determine their readiness to effectively

implement training and capacity building programmes for transforming the public service.

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vii. Developing and implementing training programmes that target the political leadership,

Permanent Secretaries, Chief Executive Officers of state corporations and Heads of department

on legal and policy implications of the constitution.

viii. To facilitating cooperation between the various levels of Government, prepare a reporting

system that would enhance the co-ordination of all public service staff in the country.

ix. Developing guidelines on the development of organizational structures and staff establishment

to be used by county governments consistent with the distribution of functions for both

national and county governments at the county level. This will assist county governments in

having an initial framework for the establishment and abolition of offices.

x. Developing a phased implementation Plan based on the timelines stipulated in the constitution.

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CHAPTER TWELVE: COUNTY GOVERNMENT FINANCIAL RESOURCES AND THEIR MANAGEMENT

INTRODUCTION

Fiscal Decentralization Conceptual Framework

The constitution has adopted a devolved system of government that entails substantial devolution of

political, administrative and financial powers to county governments with a view to improving citizen

participation, efficiency and responsiveness of service delivery. Functions that were previously

performed by the central government have as a result been assigned to county governments including

specification of the corresponding share of national revenues that must be given to counties to enable

them to perform their responsibilities. Counties have also been given power to make policy and

operational decisions regarding revenue raising and spending priorities.

The devolution or fiscal decentralization framework that Kenya has adopted under the constitution is

illustrated in Fig 12.1 below.

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The top part of the diagram underscores the fact that the constitution has established two levels of

government, the National government and county governments, that are distinct and interdependent

and which are required to conduct their mutual relations through cooperation and consultation. It is

noteworthy that, unlike in other countries, the Kenya constitution has avoided the creation of a

hierarchical unitary system of government where power and functions are given to sub-national

governments by the central government which also retains the power of recall of such power. The

National Government is, among other roles, charged with the responsibility for national economic

policy and planning, national standards, regulation, national public works, national statistics,

immigration and citizenship, macroeconomic management, foreign affairs, defence and natural

resources (Schedule 4). On the other hand, county governments have been assigned a central role in

the development, delivery and maintenance of infrastructure in the new constitution.

The functional allocation and accountability for infrastructure delivery thus represents a major policy

shift compared to the situation prior to the enactment of the new constitution. Some aspects of social

and economic infrastructure are also shared in the sense that the constitution has assigned both levels

of government corresponding and concurrent responsibility and accountability for the delivery of

services at different levels within the same sector. Examples of such concurrent functions are

indicated in the middle part of the diagram and include: education, transport, health facilities, public

works, public investment, statistics, disaster management, energy regulation, environment and

natural resources, forestry, tourism, betting, casinos and other forms etc.

The constitution has specified how national revenues should be shared between the two levels of

government as well the supplementary grants that can be given from the National Government share

of national revenues. It has also indicated the taxes and possible fees and charges that the county

governments can impose to raise additional more financial resources. The anticipated outcomes that

can be used to gauge the effectiveness of the National government include the creation of an enabling

macroeconomic environment, nationhood, strong country brand, making the country a preferred

investment destination, social stability, sustained high economic growth, equitable development and a

high quality of life for all Kenyan citizens. County governments, on the other hand will, among other

aspects, be gauged by their success in effective service delivery, citizen participation, vibrancy of local

economies, inclusive development, wealth creation, employment generation and improved

livelihoods.

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Principles of Public Finance

The fiscal decentralization and financial management envisaged in the constitution therefore goes

beyond the traditional processes that underpin fiscal management. Not only are county governments

empowered to implement their own programmes, but they are equally required to adopt financial

management practices that embrace public participation and adherence to the public finance

principles outlined by the constitution (Article 201). These include:

a. openness, accountability and public participation in financial matters - The County Legislative

Assembly and the public are provided with relevant, reliable and timely financial and related

non-financial information and reports so they can be well informed of the use and management

of public funds.

b. promotion of an equitable society by sharing the burden of taxation fairly;

c. sharing of county revenues in an equitable manner;

d. promotion of equitable development in county governments;

e. special allocations and provisions for marginalized groups and areas;

f. ensuring the burdens and benefits of the use of resources and public borrowing in a county

governments is shared equitably between present and future generations;

g. prudent and responsible use, management and accounting of county finances- Public funds are

managed with prudence and integrity, assets are safeguarded and resources are used

effectively, efficiently and economically to achieve county objectives and effective and efficient

systems of internal control are in place, to ensure that the income and physical assets are

safeguarded against misuse, damage, loss or theft.

h. clear fiscal reporting of county finances- There are clear accountabilities for financial

management, which provide assurance to the County Legislative Assembly regarding the

effective use of public funds and the results achieved.

REVENUE

Inter-Governmental transfers

The Constitution provides for intergovernmental transfers and grants (from the national government

to county governments) that include:

1) Equitable share of revenue raised nationally: general purpose/block transfers based on a

formula that takes into account the criteria set out in Article 203 0f the constitution and related

recommendations by the Commission for Revenue Allocation (CRA) (Article 216). Each

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financial year county governments are entitled to be allocated not less than fifteen per cent

(15%) of all revenue collected by the national government.

CRA recommendations are supposed to indicate how national revenues will be shared

vertically and horizontally. Vertically between the National Government and the county

governments taken as a single entity and horizontally where the amount allocated to the

county governments is allocated to each of the 47 counties.

Clarity is required in respect of the following aspects:

a) Does ‘revenue raised nationally’, for example, include loans and grants to the National

Governments or is it restricted to ordinary government revenues?

b) Are county own revenues to be included as ‘revenue raised nationally’?

c) What are the variables that will be taken into account in the calculations for the equitable

share of revenue raised nationally?

d) What weights will be accorded to the various variables for the revenue sharing formula

that may be developed?

e) What are the lessons from past decentralised funds that can be used to inform the

methodology for equitable share of revenue raised nationally?

f) How will the recommendations by CRA be processed once they are submitted to the Senate

the National Assembly, the national executive, the County Assembly and the county

executive as required under Article 216 (5)

2) Conditional grants: non-repayable money transfers for specific projects (Article 202).

3) Unconditional grants: non-repayable money transfers not tied to any specific project (Article

202).

4) Equalisation fund: fund restricted to provide grants to finance basic services including water,

roads, health facilities and electricity to marginalised areas. Fund to be allocated one half per

cent (0.5%) each financial year from the revenue collected by national government calculated

on the basis of the most recent audited accounts of revenue received, as approved by the

National Assembly.

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5) Contingency fund: to provide emergency financial advances if the Secretary responsible for

finance is satisfied that there is an urgent and unforeseen need for expenditure for which there

is no other authority. Fund to be operated in accordance with an Act of Parliament.

Criteria for Revenue Sharing and Grants:

The criteria for the equitable share of revenue raised nationally and the granting of conditional and

unconditional grants will be as set out in Article 203(1) of the constitution:

a. the national interest;

b. any provision that must be made in respect of the public debt and other national obligations;

c. the needs of the national government, determined by objective criteria;

d. the need to ensure that county governments are able to perform the functions allocated to

them;

e. the fiscal capacity and efficiency of county governments;

f. developmental and other needs of counties;

g. economic disparities within and among counties and the need to remedy them;

h. the need for affirmative action in respect of disadvantaged areas and groups;

i. the need for economic optimisation of each county and to provide incentives for each county to

optimise its capacity to raise revenue;

j. the desirability of stable and predictable allocations of revenue; and

k. the need for flexibility in responding to emergencies and other temporary needs, based on

similar objective criteria.

Horizontal funds allocation among counties

Horizontal funds allocation among the 47 counties counties could be based on a formula. A formula

uses some objective, quantitative criteria to allocate the pool of revenues among the county

governments. The use of a formula creates a sense of fairness in that all stakeholders know the exact

criteria by which distributions are made, and there is flexibility in that distributions may change as

the needs for public expenditures change. The formula-based mechanisms should ensure that the

horizontal allocation of resources among counties is consistent with the country’s policy objectives on

devolution. The development of the formula-based allocations should be guided by the following

generally accepted principles:

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a) Provide revenue adequacy: A transfer formula should provide a source of adequate resources

to the county governments to perform their mandated functions

b) Enhancing equity and fairness: The transfer formula should support a fair allocation of

resources.

c) Stability: Transfers should be provided in a predictable manner

d) Simplicity and transparency: Transfer formulas should be simple and transparent,

e) Incentive compatibility: should not create negative incentives for local revenue mobilization,

and should not induce inefficient expenditure choices.

f) Focus on service delivery: Transfer formulas should focus on the demand (clients or outputs)

rather than the supply (inputs and infrastructure)

g) Avoid equal shares: Reliance on the “equal shares” principle as a major allocation factor

should be avoided in the design of an allocation formula.

h) Respect the Pareto Principle: This means that while the allocation mechanism would favour

marginalised areas and communities in the effort to bring them closer to the other

communities, care should be taken to avoid making these other communities worse off. (Pareto

principle named after the social economist Vilfredo Pareto (1848 -1923) states that “if we can

find a way of making to make some people better off without making anybody else worse off, we

have a Pareto Improvement”)

In determining the appropriate allocation factors to be used in the formula, the CRA should consider

the following:

a) Accuracy: The variable should accurately reflect the specific characteristics and should be

statistically sound.

b) Regularly updated: The variable should be regularly updated in the future.

c) Independent source: The variable should come from an independent source respected by all

stakeholders

d) Free of local manipulation: The variable should be drawn from a source that cannot be

manipulated by locally (unless the central government has an adequate capacity to monitor

and verify locally reported statistics).

e) Reflect needs or demands: The variable should reflect needs or demands for public goods

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The Principle of Funds Must Follow and Match Functions

The constitution provides that:

County Governments shall have reliable, stable and predictable sources and allocations of

revenue to enable them to effectively perform their constitutional functions and to deliver

services within their jurisdictions (Article 175) Article 203(1) (d) (j).

If a function or power is transferred from a government at one level to a government at the

other level, arrangements shall be put in place to ensure that the resources necessary for the

performance of the function or exercise of the power are transferred 187(2)(a).

The foregoing provides the constitutional basis and rationale for the principle of ‘funds must follow

and match functions’ that may require to be provided in both observed policy and legislation to avoid a

mismatch between functional responsibilities and availability of resources to counties.

Current Decentralised Funds

Funds transfers to lower jurisdictions have proliferated over the last few years and are now

considered major drivers for local development and service delivery. These funds, which are shown

below can be divided into:

Loan facilitation transfers that include: Youth Enterprise Fund (YEF), Women Enterprise

Fund (WEF) and the Poverty Eradication Loan Fund (PELF);

Targeted sector-specific transfers that include: Free primary education (FPE); Constituency

Bursary Fund; Rural Electrification Programme Levy Fund;

HIV/AIDS Community Initiative Account; Water Services Trust Fund; Road Maintenance Levy

Fund (RMLF)

Broad composite funds that include: Constituency Development Funds (CDF);

Local Authorities Trust Fund (LATF)

The retention and management of each of the said funds should be based on the constitutional

functional allocation. The constitutional principle for public participation, the principle of subsidiarity

and assessed need for continued separate funding and provision of the function should also be taken

into account.

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COUNTY OWN REVENUES

Taxation Revenues

County governments may raise their own revenues by imposing taxes and charging fees for services.

Such taxes should however be raised in a way that does not prejudice national economic policies,

economic activities across county boundaries or the national mobility of goods, services, capital or

labour (Article 209). The taxes and charges that county governments can impose or charge include:

property rates; entertainment taxes; and any other tax authorized by an Act of Parliament (Article 209

(3c).

In levying taxes, county governments should conform to the constitution and also adhere to the key

principles of taxation including:

a. Equity: the burden of taxation should be shared in accordance with the respective taxpayer’s

ability to pay.

b. Simplicity, transparency and certainty: the procedure, manner and time for collection of the

tax should be simple and clear, and the amount of tax to be paid is unambiguous.

c. Effectiveness: the tax base should have the capacity to achieve its basic objectives.

d. Efficiency and Cost: the time and expenses for tax collection and administration should be

minimal and cost effective.

e. Flexibility: the tax base should be responsive to economic and other environmental dynamics

and is capable of change over time.

f. Enforceability: the rules pertaining to the tax must be easy to enforce within the county.

g. Exportability: the tax should have the potential to generate a revenue stream from non-

residents (both individuals and businesses) who enjoy public services provided by a County.

h. Burden equity: the burdens and benefits of taxation and the use of resultant resources should

be shared fairly and equitably between present and future generations.

Property Rating and Discontinuation of CILOR

Rating of properties in urban areas and cities should be based on both the improved and unimproved

site values. Exemptions for payment of rates should be legislated against as this will deny Counties

substantial revenues.

This entails the discontinuation of the contribution in lieu of rates (CILOR) system currently in

operation due to its ineffectiveness and the requirement for all the National Government institutions,

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Independent Commissions, Independent Offices, State Corporations and Non-State Institutions to

budget and pay rates due to their respective County Governments.

Additional Taxes

Possible additional taxes that counties can be allowed to levy under the envisaged legislation include

Royalty taxes levied on minerals and other natural resources within the county. These would include

minerals, game reserves, forestry and marine. Indeed Article 66(2) obliges parliament, while

regulating the use of land, to enact legislation that ensures that investment in property benefit local

communities and their economies.

Historically, communities within certain regions have survived alongside the resources and have

sustainably exploited them for their survival. Any exploitation of the natural resource will inevitably

impact on the lives of the community. Naturally the environment will be negatively affected and there

is need to compensate the region by supporting ways of mitigating the said effects.

Tax Collection in Counties

The constitutional powers and functions on tax revenues administration in counties have five

elements:

a) power to impose tax: responsibility - respective county governments;

b) tax revenue collection: responsibility - respective county governments; but can be assigned or

contracted out;

c) tax revenues control: responsibility - Controller of Budget

d) tax expenditure and related controls: responsibility - respective county governments)

e) and

f) tax revenues reporting and auditing: responsibility - Auditor General.

In respect of tax collection there are four possible options that can be adopted, each of which has

advantages and disadvantages:

a) First, respective county governments can set up tax collection departments or divisions for the

purpose.

b) Secondly, respective county governments can contract out the task for tax/debt collection to

private organizations.

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c) Thirdly, a new County Tax Revenue Authority could be established to help in the collection of

tax revenues for all the 47 counties.

d) Fourthly, the Kenya Revenue Authority could be empowered through national legislation to

collect tax revenues for all counties.

The challenge for the operationalization of the taxation principles outlined above and the need to

maximize the huge tax revenue potential for all the 47 county governments dictates that the

assignment of the power to collect tax revenues must be informed by past experiences.

Fees and Charges

Counties can impose charges and fees for its services and the legislation envisaged under Article 209

(3) should provide a clear framework of how this can be done. Fees and charges that counties can

charge include: agricultural cess, livestock fees, house rents, market rents and fees, single business

permits fees, traditional brew permits fees, service delivery charges, parking fees, rent for conference

halls, county parks and related facilities, charges and fees from public-private partnerships such as

concessions, management contracts, leases, build-own-operate-transfer (BOOT) build operate

transfer (BOT) and build-own-operate (BOO) schemes; amongst others.

Grants and Donations

County Governments may receive donor grants or aid either from foreign governments, non-

governmental agencies, corporate institutions, philanthropists and individuals to support their social

and economic development programmes. Such institutions include foreign national governments,

local authorities, foundations, charities, international NGOs, private companies, relief and

humanitarian agencies.

Regulations on seeking, receipt, budgeting, use and accounting for such funds should be included as an

integral part of the appropriate county financial management legislation. The national interest,

national development priorities, fiscal and monetary policies shall also be taken into account.

BORROWING, GUARANTEES AND DONOR GRANTS

County Governments may borrow only with the approval of their respective county assemblies and if

the national government guarantees the loan (Article 212). The county governments should have the

option of borrowing from both the money and capital markets either externally and internally.

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Consideration of Loan Guarantees

The terms and conditions for consideration of loan guarantees by the National Government may

include all or the bulk of the following aspects:

a. Written proof that the intended borrowing has been approved by the County Assembly of the

county seeking the loan;

b. Written proof that the intended borrowing has been included in the budgets of the county;

c. Proof of public participation in contributing to the budget and loan proposals of the county;

d. Ability of the subject capital project to generate the necessary cash flows to repay the loan;

e. Leadership qualities and management capacity of the County Executive;

f. Financial management and probity of the county;

g. Application, management and servicing of previous guaranteed loans;

h. Proportion of the total loan portfolio of the county relative to both its annual budget and GDP;

i. Level of conditional and unconditional grants by the National Government;

j. Nature and implementation time frame of the project for which the loan is being sought;

k. Quantified investment/project potential for wealth, employment and poverty reduction;

l. Project/investment potential for local and national economic growth and development;

m. Credit rating of the county;

n. Compliance with the requirements for borrowing from the capital markets;

o. Fiscal state of the county.

In addition to above conditions external borrowing from international financial institutions, bilateral,

multilateral and other external sources must, also be clear on the following aspects:

a. role of National Government departments in facilitating county governments;

b. conditions for loan effectiveness;

c. loan disbursement procedures;

d. responsibility for the assumption of interest and foreign exchange risks;

e. limitations on the amounts that county governments can borrow from external sources;

f. conditions for national government bailouts to county governments;

g. indemnity to the National government for costs incurred for the takeover and servicing of non-

performing loans of defaulting county governments;

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Institutional Framework for Coordination of Borrowing and Grants

In order to ensure effective administration, monitoring and coordination of both internal and external

borrowing and the administration of grants Kenya may draw lessons from the Australian experience

and consider the establishment and provision of a 15 member Loans and Grants Council for Kenya

under the legislation governing borrowing, loan guarantees and grants. Creation of such an agency

will enable the country to avoid a situation whereby the problems or failure of non-performing

counties adversely affect the rating and creditworthiness of other county governments and even that

of the national government and other state organs.

The functions of the Loans and Grants Council may include:

a. regulation of internal and external borrowing by the National Government, county

governments and other state organs;

b. policy review and monitoring of the administration of national governments grants to county

governments;

c. policy review and monitoring of the debt management by the national government, county

governments and other state organs;

d. regulation of the procedures for the seeking, receipt and application and use of donor grants by

the National Government, county governments and other state organs;

e. setting limits and ceilings on the county government’s powers to borrow;

f. administration of a sinking fund established to help counties to redeem debt to improve their

liquidity and creditworthiness;

g. approval of grants to county governments to help them to meet loan interest payments or loans

and sinking fund contributions.

The role of the Loans and Grants Council in the regulation of borrowing would also complement the

institutional framework for macroeconomic policy and management. The Membership of the Loans

Council and Grants for Kenya could include:

a. Secretary responsible for Finance as the Chairperson;

b. Secretary responsible for Devolved Governments;

c. Secretary responsible for Foreign Affairs;

d. Chairperson of the Association for County Governors (or its equivalent);

e. Chairperson of the body representing county assemblies;

f. Executive committee member responsible for finance for the Capital City;

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g. five members who are county executive committee members responsible for finance in their

respective county governments, each elected to represent a cluster of counties constituted in a

manner that reflects the diversity of the of Kenya Nation;

h. four members each nominated by the respective apex organizations representing county

assembly workers, the private sector, faith-based institutions and civil society organizations.

PUBLIC DEBT MANAGEMENT IN COUNTIES

Over time, it is anticipated the combined and individual debt portfolios of county governments will be

substantial. More often than not, such institutional debts contain complex and risky financial elements

that can generate substantial risk to the county government's balance sheets as well the country’s

financial stability. It is critical for county governments to be proactive through the formulation and

implementation of credible debt management strategies in order to reduce excessive levels of debt

and to ensure public sector indebtedness is maintained on a sustainable path.

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PLANNING AND BUDGETING

County Planning and Budgeting Linkages

The government is currently implementing the Vision 2030 whose aim is to transform Kenya into a

newly industrializing middle income country by the year 2030. The CoK 2010 under Articles 185, 220

and the Fourth Schedule on functions approve plans and policies for the management and exploitation

of the county’s resources; and the development and management of its infrastructure and institutions;

and development plans. For coordinated development it is important that the county governments’

development plans mirror the national plans.

Article 220 (2) requires a national legislation be enacted to prescribe for the structure of the

development plans and budgets of counties. We propose that law among other things contain the

following 10 principles of planning and budgeting:

1. Comprehensiveness: The budget must encompass all fiscal operations of government, i.e. off-

budget expenditure and revenue are prohibited.

2. Discipline: Decision-making must be restrained by resource realities over the

medium term; the budget should absorb only those resources necessary to implement

government policies; and budget allocations should be adhered to.

3. Legitimacy: Policy makers, who can change policies during implementation, must take part in

and agree to the original policy.

4. Flexibility: Decisions should be pushed to the point where all relevant information is available.

5. Predictability: There must be stability in macro and strategic policy, and in the funding of

existing policy.

6. Contestability: All sectors must compete on equal footing for funding during budget planning

and formulation.

7. Honesty: The budget must be derived from unbiased projections of revenue and expenditure.

8. Information: A medium-term aggregate expenditure baseline against which the budgetary

impact of policy changes can be measured and accurate information on costs, outputs and

outcomes derived should be available.

9. Transparency: Decision makers should have all relevant issues and information before them

when they take decisions and these decisions and their basis should be communicated to the

public.

10. Accountability: Decision makers are responsible for the exercise of the authority provided to

them.

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Kenya has over the last 11 years since 2000 been using medium Term Expenditure Framework

(MTEF) budgeting process. MTEF is a broad approach to integrating policy-making, planning and

budgeting over a 3-year period based on policy priorities. The importance of MTEF is that it facilitates

governments achieve fiscal discipline, allocate expenditures in line with national priorities, coordinate

donors, and ensure transparency and accountability.

MTEF process works well when combined with sector-wide approach to planning (SWAp) process.

SWAp is a process intended to support a locally-owned coherent sector strategy and expenditure

program under Government leadership in a comprehensive and coordinated manner. It is an

approach based on a shared vision and shared priorities and on a joint commitment to a sector

strategy and policy framework, rather than a financing instrument. It also incorporates systems of

monitoring and evaluation which would be best achieved through public participation.

Therefore it is proposed that the Project Cycle Management (PCM) and Community Participation (CP)

tools be incorporated to complete the planning and budgeting cycle. The proposed legislation national

legislation on the structure of the development plans and budgets of counties incorporate these

processes. In addition it is proposed that a national policy manual on PCM/CP be developed for use by

the County Governments.

EXPENDITURE CONTROL

Expenditure Controls Framework

Figure 12-5 shows the expenditure control framework, indicating the funds expected to be withdrawn

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from the Revenue Fund account and the control mechanism of the spending. This expenditure control

mechanism works as explained in the chart and outlined below:

a. Article 2007 establishes the County Revenue Fund where all the moneys for county will be

consolidated. The Controller of Budget will authorise the withdrawal of funds.

b. The county assemblies will have an oversight role through the internal audit functional

mechanism and other financial reports from the Accounting Officer of the County.

c. The public will have an oversight role in line with PCM/CP procedures.

Procurement/ Supply Chain Management

Procurement of goods and services will be controlled through the appropriate supply chain

management. The Constitution has provided for some amendments to the Procurement and Disposal

Act. Article 227 provides that when a State organ or any other public entity contracts for goods or

services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and

cost-effective, which emphasizes some of the objectives in the current legislation.

Legal opinion has been sought from legal practitioners to establish if procurement law can be

established for county governments separate from the national procurement law. Article 227 of the

constitution provides that Parliament shall enact a law to prescribe a framework within which

policies relating to procurement and asset disposal shall be implemented. This means that it is

anticipated that the country will have one unifying law to govern procurement and disposal for the

two levels of government.

Role of Controller of Budget

Article 228 of the Constitution provides for the creation of the office of the Controller of Budget. The

function of the office is to oversee the implementation of the budgets of the national and county

governments by authorizing withdrawals from public funds.

While the constitution has provided that the controller shall be required to report to both houses of

parliament, it is important that the law also provide that he/she will also report to the county

assembly and also a mechanism be created to have the report disseminated to the public in order that

they can effectively participate in the affairs of the county and in particular discharge public oversight

from an informed position.

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Role of Accounting Officer

The office of the Accounting Officer of the County Government is created by Article 226 whereby an

Act of Parliament shall designate an accounting officer in every public entity at the national and

county level of government. In line with the practice in national government and international best

practices the County Secretary for Finance is proposed to be designated as the Accounting Officer for

the County Government.

Role and responsibility of Accounting Officer shall be to safeguard public funds and ensure propriety

of expenditure of the funds; and ensure economy and efficiency in the use of resources.

Oversight Role of the County Assembly

Article 224 states that on the basis of the Division of Revenue Bill passed by Parliament under Article

218, each county government shall prepare and adopt its own annual budget and appropriation Bill in

the form, and according to the procedure, prescribed in an Act of Parliament.

The oversight role to be exercised by the county assembly is proposed to include:

To detect and prevent abuse

To hold the county executive to account in respect of how county revenue is used.

To ensure that policies announced by county executive and authorised by county assembly are

actually delivered.

To improve the transparency of county executive operations and enhance public trust in the

county government

To evaluate executive performance

County Internal Audit Function

Article 225 (2) provides that Parliament shall legislate to ensure that there is both expenditure

control and transparency in all governments. Internal auditing is one of the established systems of

providing the required financial controls in institutions.

The following recommendations are therefore proposed to ensure that the internal audit function is

adequately implemented as one of the tools for the control of the counties’ financial management

systems:

a. For good governance and controls of the financial affairs of the county government internal

audit function be included in an appropriate legislative framework.

b. Each county will be required to establish an independent internal audit department

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c. Each county will be required to establish an independent internal audit committee with its

members drawn from the professionals and civil society.

FINANCIAL REPORTING AND AUDIT

County Financial Accounting and Reporting

The goal of a PFM system is to support the achievement of fiscal discipline, strategic & efficient

allocation and use of funds, value for money and probity in the use of public funds”. For coordination

between the two levels of governments efficient intergovernmental fiscal transfers and information

sharing will be important. It is there proposed that the National Government integrated financial

management information system after due process of ensuring that it is working properly be

implemented in the county governments. This will be in compliance with Article 190 (2) which states

that County governments shall operate financial management systems that comply with any

requirements prescribed by national legislation.

In addition the financial reports will need to be prepared in a uniform system. It is now a requirement

that all public entities adopt the International Public Sector Accounting Standards (IPSAS) for all their

financial reporting. The Kenya Government has been implementing the systems to be in compliance

with the International Accounting Standards. Therefore it is expected that the county governments

will adopt the IPSAS financial reporting systems.

Role of Auditor General

Article 229 (1) provides for the establishment of the Office of the Auditor-General who shall also be

responsible for the audit of all the county governments’ accounts. Issues which require addressing

include the capacity of the office of the Auditor General to carry out its mandate as outlined in the

constitution, on qualitative and quantitative issues. This is very important as the Auditor general will

require to have audited accounts for both national and county governments within six months of the

following year. Also the intergovernmental share of revenues will be based on the most resent audited

accounts. Hence it will be within public interest that the Auditor general has the requisite capacity to

efficiently and effectively undertake the statutory role.

It is therefore proposed that the office of the Auditor General be decentralised as is required of all the

commissions’ offices for it to carry its mandate effectively.

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FINANCING COUNTY INFRASTRUCTURE

Role of Counties in Infrastructure Development and Delivery

County governments have been assigned ahe central role in the development and delivery of

infrastructure in the new constitution. Counties are mandated to plan, develop, manage and maintain

a broad range of infrastructure within their jurisdictions. County infrastructural facilities and

installations are essential for supporting productivity within and across counties and the wider

national economy. Development of county infrastructure will require large initial capital investment

but the economies of scale tend to be significant. In addition, counties, will through their

infrastructure projects, be pivotal in the delivery of the social and economic rights specified in the Bill

of Rights (Article 43).

Approaches for the Development and Financing of County Infrastructure

County governments can opt to directly contract out work relating to the development their

infrastructure. They can also collaborate with the national government, other counties, state organs,

private sector and non-state agencies in the fulfilment of their infrastructure delivery mandates

(Article 185 (4); Article 227 (1) Schedule 4-Part 2). Currently, various government ministries and

state corporations are involved in the implementation of a broad range of infrastructure projects

relating to the functions allocated to devolved governments in the constitution.

Counties can also draw lessons from infrastructure and service delivery approaches currently being

practiced by the current local authorities. Existing local authorities have, for example, established

water and sewerage companies that are wholly owned by respective local authorities and operate on

commercial lines under autonomous boards and managements. Some local authorities have also

commercialized or privatized some services such as refuse collection, security and street lighting,

office cleaning etc.

Public-Private Partnerships

There are four broad approaches for the joint development and financing of County Infrastructure

those individual counties may choose to adopt. These include:

a. Joint Authorities and Joint Committees: these can be set up as provided for under Article 189

(2) to facilitate cooperation of the national government and county governments or between

two or more counties for the performance of the functions of county governments including the

provision of county infrastructure and services.

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b. County Government Corporations and Companies: county governments can set up their own

county-level corporations (e.g. the current water and sewerage companies that are wholly

owned by local authorities).

c. State Corporations: county governments can alsocontract state corporations falling under the

National Government for the latter to provide both finance and management of county

infrastructural projects.

d. Public-private partnerships: Infrastructure PPPs are contractual collaborative arrangements

between public sector organizations/county governments and private sector institutions for

the joint and collaborative delivery of capital projects.

The Public Procurement and Disposal (PPPs) Regulations (2009) of Kenya identifies five types of

partnerships that, in the meantime, can also be adopted for the delivery of county infrastructure.

These include management contracts (MCs); Leases; Concessions; Build-Own-Operate Transfer

(BOOT; and Build-Own-Operate (BOO).

Other types of PPPs that county governments can utilize are: Design-Build-Maintenance (DBM);

Design-Build-Operate (DBO); Build-Lease-Operate-Transfer (BLOT); Design-Build-Transfer-Operate

(DBTO); Design-Build-Finance-Operate (DBFO) also called the Private Finance Initiative (PFI) in

Britain; and Purchase-Upgrade-Operate (PUO).

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A County Governments Development Bank for Kenya (CGDBK) that is managed professionally could

be established to, among other purposes, facilitate the financing development of county

infrastructure.

The Authority can also be the conduit through which guaranteed loans and conditional grants for the

development of infrastructure could be channelled to county governments. The authority will also be

required to administer the loans including disbursements and repayments. One other task for the

Authority would be to assist the county governments to eventually be capable of accessing the capital

market for long term financing. This would mean ensuring the county governments are financially

structured and are managed in a way that gives sufficient confidence to the market for it to lend them

funds.

The management and corporate governance framework for the new county infrastructure

development facilitation institution must however be designed and effected in a manner that avoids

the pitfalls encountered by the defunct LGLA (Cap 270).

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COUNTY PUBLIC FINANCE MANAGEMENT LEGISLATION

Article 190 provides that county governments shall operate financial management systems that

comply with requirements specified by national legislation. The financial management for county

governments should enable the counties to raise and manage their financial resources in a ways that

facilitates them in the discharge of their constitutional functions. The system should therefore be

designed to reflect the distinctive nature and operational independence of county governments as

envisaged in the constitution.

The devolved system provided in the constitution clearly envisages two separate, albeit,

interdependent systems of government. This is underscored in Article 6 of the constitution which

provides that the territory of Kenya is divided into the counties specified in the First Schedule, and the

governments at the national and county levels are distinct and inter-dependent and shall conduct

their mutual relations on the basis of consultation and cooperation. Indeed, it would be a negation of

the constitution to devise an integrated financial management system because such a system will

compromise the independence and autonomy of county governments by making the functioning of

the county financial system be dependent on directions of the national government.

Article 6 of the constitution provides that the territory of Kenya is divided into the counties specified

in the First Schedule. The governments at the national and county levels are distinct and inter-

dependent and shall conduct their mutual relations on the basis of consultation and cooperation. The

financial system should facilitate both levels of government to manage their financial affairs without

undue interference from the other level of government as envisaged under Article 189 (1) (a). Section

189 (1) (a) provides Government at either level shall perform its functions, and exercise its powers, in

a manner that respects the functional and institutional integrity of government at the other level, and

respects the constitutional status and institutional of government at the other level.

In view of the foregoing, it is proposed two pieces of legislation, one to cater for public financial

management for the National Governemnt and the other for public finance management for county

governments.

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CHAPTER THIRTEEN: THE TRANSITION ROAD MAP

INTRODUCTION

The activities and stakeholders that would be required to bring to life and implement policies on

devolved governments are varied. The coordination of the implementation of these activities and the

involved stakeholders will determine the success of the process. This process is anticipated to be

undertaken in three phases, which cover the period before the next elections, the period after and that

after August 2015 when the county governments will be fully operational. In this chapter we are only

concerned with the last two phases because activities identified to be carried out within this period

are critical for the establishment of the system of devolved government.

The transition period as defined by the Constitution is three years after the establishment of the

county governments that is between August 2012 when the county governments come into being

after the next elections and August 2015. However, for our purposes we define two transition periods,

the first being that after the passage of Bills necessary for effecting devolved governments, including

that provided for by Article 200, and August 2012. Within this period arrangements will be made to

ensure that county governments start on good footing after August 2012, when the second phase of

the transition period starts.

It is proposed that Transition Processes be anchored in law through a Transition to County

Governments Bill, 2011. The bill will provide a framework and regulations governing the process for

establishing the county governments, including:

roles of relevant stakeholders, in particular, MDAs, LAs, Constitutional and other state organs

milestones for key activities

a mechanism for resolving disputes arising during the process

It is proposed that the bill provides for the establishment of a Transition Authority that will

coordinate the transition process. This authority is proposed to be in place until all the counties are

fully established.

Some of the issues to be articulated during the transition period include:

Human Resource: how existing human resource in the central government, including the

Provincial Administration, and local authorities will be rationalized and deployed for the

effective service delivery;

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Service delivery: how continuation of delivery of services at both the national and county

governments will be guaranteed in the transition period;

National stability and security: how national stability and security will be assured in the course

of transition;

Assets and liabilities: how existing assets and liabilities will be apportioned and managed;

Policy and facilitative legislative framework: how requisite policies and facilitative legislation

will be formulated on timely basis to ensure compliance with the transition schedule set out by

the Constitution;

Capacity building framework: how capacities from the perspectives of human and physical

infrastructure will be undertaken to ensure that county governments take off smoothly;

Ongoing reform processes: how the various ongoing reform processes at both the current

central and local government levels will be transited into the new dispensation; and

Communication: how information accruing from and relating to the transition process will be

generated, owned, managed and disseminated.

TRANSITION AREAS

The attainment of the issues outlined above over the transition period will be important for the

success of counties. Some of the activities to be undertaken during the first period are summarized in

Table 1, indicating why the actions are necessary, who the actor are, the supporting policy

measures/legislation, the expected outcome and the timelines. The implementation of some these

proposals are already in progress, for example audit of assets and liabilities of local authorities and

audit of central government staff in counties have started. The audit of the assets and liabilities of LAs

is necessary to assist in the clearing of their financial obligations as required by the terms of reference

of the Task Force. The audit of current government and local authority staff stationed in counties is to

assist in their secondment to county governments during the transition.

Table 1: TRANSITION IN PHASE 1

ACTIONS JUSTIFICATIO

N

ACTOR(S) REQUIRED

POLICY/LEGA

L MEASURES

OUTCOME TIME

FRAME

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AUDIT OF

ASSETS AND

LIABILITIES OF

LAs

Clearing of

outstanding

financial

obligations of

LAs

ODPM/MoLG,

LAs,

Transition

Secretariat

Assets and

Liabilities Bill,

Transition Bill

Debts and

liabilities of

each LA

established

May

2011-

June

2012

AUDIT OF LA

INFRASTRUCRUR

E COUNTIES

Vesting of plant

& equipment to

county

governments

Ministry of

Public Works,

LAs,

ODPM/MoLG

and

Transition

Secretariat

Transition Bill,

Intergovernme

ntal Relations

Bill,

Number

and

functionalit

y of plant &

equipment

established

July

2011-

March

2013

AUDIT OF

CENTRAL

GOVERNMENT

INFRASTRUCTUR

E IN COUNTIES

Vesting of some

plant &

equipment to

county

governments

MoPW, MDAs

and

Transition

Secretariat

Transition Bill,

Intergovernme

ntal Relations

Bill,

Number

and

functionalit

y of plant &

equipment

established

July

2011-

March

2013

AUDIT OF

CENTRAL

GOVERNMENT

STAFF IN

COUNTIES

Secondment of

central

government

staff to county

governments

MoSPS and

other MDAs

Transition Bill,

Intergovernme

ntal Relations

Bill, County

Public Service

Commission

Bill

Number of

staff in

each

county by

cadre,

grades,

gender, age

&

qualificatio

n

March

2011-

Decemb

er 2011

AUDIT OF LA

STAFF IN

Secondment of

LA staff to

ODPM/MoLG,

LAs &

Transition Bill,

Intergovernme

Number of

LA staff in

July

2011-

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COUNTIES county

governments

Transition

Authority

ntal Relations

Bill, County

Public Service

Commission

Bill

each

county by

cadre,

grades,

gender, age

&

qualificatio

n

March

2012

CIVIC

EDUCATION

Sensitisation of

the public on

Acts related to

county

governments

ODPM/MoLG,

MOJCA, and

stakeholders

Bills on

counties

published & or

published

Civic

education

on

devolution

started

August

2011-

June

2012

COUNTY

BUDGETS

Agreement on

initial budgets

for counties

ODPM/MoF,

CRA, CIC &

Transition

Secretariat

Transition Bill,

County Public

Finance

Management

Bill,

Intergovernme

ntal Relations

Bill

Initial

County

budgets

agreed

March

2012

COUNTY

PROFILES

Establishment

of basic data

and framework

for data

collection and

analysis in

counties

MoPND

&VISION

2030

Development

Facilitation Bill,

National

Planning

Commission

Bill

Profiles of

counties

produced

and

printed

May

2011-

Dec

2011

ANALYSIS OF

FUNCTIONS

Development of

understanding

All MDAs Transition Bill,

Intergovernme

Definition

and plan

June

2011-

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& framework

for devolving

functions to

counties by

MDAs

ntal Relations

Bill, Review of

existing

policies and

Acts of

Parliament

relevant to

each function

for

distributio

n of

functions

published

&

necessary

Acts

amended

Dec

2011

The audit of central government and local government infrastructure is to assist in the determination

of plant and equipment to be vested to the county governments. In the case of the central

governments it will also assist in determining which plant and equipment will be left to it in the

counties. After the bills that relate to devolution have been published, there will be civic education to

inform the public on all the aspects of the new system of government. The overall civic education

programme is being developed and will be implemented under the coordination of the Ministry of

Justice National Cohesion and Constitutional Affairs. The materials and the programme for the

devolution aspect of this matter is being developed by the Task Force on Devolved Government and

will be implemented by the Office of the Deputy Prime Minister and Ministry of Local Government.

It is expected that Treasury will allocate funds to the counties in the 2012/13 budget even though the

county governments will not be in existence when the budget processed is finalised. It is proposed

that ODPM/MoLG, CRA and the Transition Authority should be involved in the decisions on these

initial county budgets. It is also important that data bases for counties are developed to assist county

governments to effectively undertake development planning as soon as they are established. This

initial work is proposed to be done by the Ministry of State for Planning, National Development and

Vision 2030.

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One of the most important activities in the whole process of devolution is that of devolution of

functions assigned by the Constitution from the national government to county governments. The

process leading to this activity is as described in chapter 6 will start with the unbundling of functions

by MDAs. This process is expected to start in June and end in December, 2011. The purpose of the

exercise is to separate and define the functions that fall under each level of government. In the

process there will be need to review legislation and policies governing the all the functions to be

devolved. It is estimated that about 700 lwas will have to be amended, a task that is expected to be

finalised before June 2012.

The second phase of the transition, shown in Table 2, starts after the county governments take office

sometime in August 2012. The most immediate activity in this phase will be the formation of the

county governments that will include the swearing in of the Governors and their deputies and the

members of the county assemblies. This will be followed by the appointment of the county executive

and a few key political staff. Some preparatory work to ensure this process goes well will be initiated

the Transition Authority.

TABLE2: TRANSITION IN PHASE 2

ACTION ACTIVITY ACTOR(S) LEGAL

AUTHORIT

Y

TIME

FRAME

Formation of

county

governments

Swearing in of

Governor and Deputy

Governor

Presiding Judge of

the County High

Court

Devolution

Bill

Swearing of County

Assembly

Presiding Judge of

the County High

Court

Devolution

Bill

Appointment and

swearing in of Speaker

County Assembly &

County Executive &

Devolution

Bill

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of County Assembly Presiding Judge of

the County High

Court

Appointment of Clerk of

County Assembly

County Assembly &

County Executive

Devolution

Bill

Appointment,

confirmation and

swearing in of County

Executive

Governor & County

Assembly

Devolution

Bill

September

2012

Establishment

of County

Public service

Appointment of staff for

executive

County Executive County

Public

Service Bill,

Transition

Bill

September

2012

Appointment of staff for

County Assembly

County Executive County

Public

Service Bill

September

2012

Transfer of

assets to

county

governments

Vesting of assets of LAs

and central government

to County Governments

Transition

Authority

Transition

Bill

November

2012

Development of

County

Government

offices

Construction of

required structures

County Executive Transition

Bill

November

2012

Secondment of

staff to county

governments

Some staff of LAs and

central government

placed under control of

MoSPS County

Public

Service Bill,

Transition

August

2012

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county executive Bill

Establishment

of County

Public Service

Commission

CPSC appointed by

county executive and

confirmed by county

assembly

County Executive &

Assembly

County

Public

Service Bill

November

2012

Appointment of

county staff

Advertisement and

interviews by CPSC

CPSC County

Public

Service Bill

From

January

2013

Restructuring

of Provincial

Administration

Restructuring of PA

initiated

MoSPAIS Sept 2012-

August

2017

Devolution of

functions to

counties

Asymmetric devolution

of functions begins

MDAs & Transition

Authority

Transition

Bill

June 2013-

August

2015

Capacity

Building for

County

Governments

Development of

capacity building

programmes & training

of county staff

National

Government &

Transition

Authority

Transition

Bill

January

2012-

January

2015

To effectively begin to put in place county public services it will be necessary for the county

governments to establish their public services using the modalities provided in chapter 5. These

institutions are proposed to be established by November, 2012 and will begin the recruitment

process from January 2013. In the meantime county government services will be provided by staff

seconded from ministries and former local authorities. As county recruit their staff will be need for

capacity building to ensure that they facilitate effective delivery of services in the new system of

governance. This function will be provided by the national government through its training institutes

and by providing financial resources for other opportunities through grants to county governments.

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The restructuring of the provincial administration will be initiated at this stage and as prescribed by

the Constitution will go on for a period of five years.

One of the key activities in this phase is the taking over of facilities previously owned by both the

national and local governments in the counties. These facilities would have been identified in phase

one (1) and may include buildings and other plant and equipment. Some of these like hospitals,

schools, machinery and so forth are key for service delivery. Inadequacy in offices identified in phase

1 will be addressed at this level by initiating development under the guidance of county public works

officers after appropriate procurement procedures have been followed.

As already noted, counties will begin to take over the assigned functions at this stage. The process is

proposed to start in January 2012 and is expected to be finalised by June 2015. This process will be

implemented jointly by the national and county governments with oversight by CIC and the Transition

Authority. It is proposed that the Transition Bill provides the framework and modalities for

asymmetric devolution of functions. This is important to provide a legal basis necessary for smooth

transfer of functions to counties.

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