TAKING STOCK: what have we devolved into?
The Constitution of Kenya 2010 fundamentally transformed the country politically, economically and socially. The Constitution ushered in a new republic with expanded, transparent political and economic structures. The Constitution marked a critical turning point for the nation. Some of the changes were immediate while others will take time. It is Kenyans to be resilient and focused to work towards fulfilment of the Constitution objectives, purposes and values. The Constitution marked the end of a highly centralized state and attempts to resolve the critical issues of state power versus citizens’ rights and control over the development process while establishing a powerful framework for deepening democratic reforms, devolving state power, resources sharing and economic equity, gender equality and broader human rights.
The Constitution is predicated on five basic principles that include equity and inclusiveness; equity of opportunities; delinking politics and policy; equitable access to and share of national resources; and, bringing democratic government and public services closer to the people.
At the heart of this constitutional and governance transformation is the devolution of power to county governments and the design of arrangements that will turn the constitutional vision into a reality. Devolution is a central promise of Kenya’s Constitution. It constitutes one of the most important and decisive factors for the future political, economic, security and cultural development of Kenya. It aims to deepen participatory local democracy, foster inclusiveness, improve service delivery and cultivate culture of accountable leadership. County powers and functions are recognised and entrenched in the Constitution and cannot be easily amended. The fundamental purposes and objectives of devolved government are explicitly recognised and provided for in the Constitution.
The Constitution establishes the two levels of Government as ‘constitutional equals’ and recognizes that there are instances where county laws may trump national legislationDuring the eight years after the introduction of the devolved governance system there have been achievements but also shortcomings. The Constitution envisaged a gradual and phased transfer of functions, based on the assessment of readiness of counties to assume functions allocated under the Constitution. However, once county governments came into office, they asked for a ‘big bang’ transfer of functions. Thus, transfer of functions was not done on a county-by-county basis pegged on the county’s readiness. This is core contributor to the challenges being witnessed in Counties.
Spatial development inequalities and imperial presidency fiats explain the passion Kenyans had for progressive constitutional reform and overwhelming support for devolution. Inequality of opportunity is pervasive in Kenya, indicating partial failure of the Kenyan state over the years to redistribute the national income through services. Variations in access to services mirror, to a large extent, historical patterns of marginalization.
The Judiciary plays key role in ensuring that implementation processes accord with the spirit and text of the Constitution. Already the courts have declared parts of laws and policies, and in some cases entire laws, passed by Parliament unconstitutional. Many of the policies and laws have been declared unconstitutional mainly on grounds that they infringe on county government powers and functions.
The devolved system of government seeks to fundamentally transform the country’s institutional, political and governance structures, by dispersing resources, powers, and governance structures from the centre to the forty-seven county governments. After decades of centralized governance (dating back to the colonial era), Kenyans resolved to transition to a system where powers and governance are shared between the centre and the devolved units.
Article 174 of the Constitution lists nine objectives of devolving power which include: addressing inequities in access to development and local services, participation in governance and accountability in the exercise of power, and enhancing national unity and inclusiveness, among other objectives. The objectives of devolved government provide the primary and fundamental purpose of the devolved system of government. Effective implementation of the devolved system of government required extensive changes in the country’s national and sub-national systems of governance.
This writer in 2015 wrote in detail a roadmap to effective devolution (Two years of Devolution: Implementation and challenges. What Next?). The challenges and opportunities outlined in that article still persist. Whether devolution will finally deliver on the promise of the Constitution will depend on full implementation of both the Constitution and devolution,giving counties adequate resources to carry out their assigned constitutional functions; ensuring accountability systems exist to give them the right incentives to use resources effectively; adequately addressing risks that resources—both financial and human—will be badly managed; and, making sure there is orderly coordination and management of the transition fromcentralized functionssystem to the devolved arrangement.
Some current incapacities in the counties can be partially traced to the historical deliberate policy of denying the sub-national level resources, and vital functions over”
During constitutional review process Kenyans wanted anything but a centralized system of government. This strong and collective resolve to establish a devolved system was informed by the years of suffering that Kenyans experienced under a centralized system of government. This included and not limited to lack of accountability, inefficiencies, inequitable development and distribution of services.
Transition to county governance and implementation of devolution required the building of new institutions, abandonment or restructuring of the old order institutions, and shifting of roles, responsibilities, and accompanying resources between the two levels of Government. Furthermore, implementation of devolution required not only a change in structures and systems but also a change in governance culture by adopting the governance culture that is compatible with the 2010 Constitution. This has remained huge challenge.
Article 6(2) of the Constitution provides that the two levels are ‘distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation’. The Article requires decentralization of services at county level to the lowest level i.e. village. In most Counties this is far from being realized. There are many national and county functions (especially in the service-based sectors) where functions overlap between the two levels and this requires joint planning and execution. Further, there are sectoral ministries, like Agriculture, Education, Finance and Health, which have policy-making and regulatory powers as well as some shared roles with the counties across the sectors. Effective concurrence in decision making and implementation of such functions has been problematic.
Intergovernmental relation between two levels of governments has been thorny. The constitutional spirit of coordination and consultation is required between the National Government institutions based at the county level and the respective county institutions. The Constitution provides for the restructuring of National Government institutions, specifically the Provincial Administration, to accord with and respect devolved governance.
Notwithstanding that the Constitution clearly determines a cooperative approach, the relationship of the two levels of Government has been difficult from the outset and is often characterized by competition, blame-shifting and dispute, resulting in duplication of tasks and political stalemate. In certain areas counties and the National Government have conflicting interests. Experience shows that the National Government and its institutions are reluctant to accept the full transfer and costing of devolved functions to the county level according to the Fourth Schedule of the Constitution. This not only undermines devolution but also leads to tensions and duplication as well as inefficient use of public funds.
Although the Constitution devolves specific functions to the county level, others remain with the National Government mainly foreign policy, immigration, monetary policy and national defence. There are other policy areas belonging to the National Government and influence directly and indirectly, the devolved governance system. National executive has exercised massive leverage to be obstacle for devolution, by fulfilling only the minimum legal requirements and not being the true promoter of devolution by not going beyond the minimum legal requirement and support the county level in various need areas.
It is significant to observe that some of the current incapacities in the counties can be partially traced to the historical deliberate policy of denying the sub-national level resources, and vital functions over the decades. Accordingly, counties inherited no systems and have had to build institutions and processes from scratch with very little support from reluctant national government.
The political attitude towards devolution and the self-perception of the National Executive’s role within the intergovernmental setup is influential and has had major impact on realizing effective devolution as envisioned in the letter and spirit of the Constitution. The National Government and its agencies have several levers to create leverage against the county governments. These include delaying and or reducing funds disbursed, enacting laws, administrative policy actions and financing proposing which counter the development of devolution. For instance cutting counties’ autonomy and or interfering in already devolved functions. Actions of the National Government have an indirect impact on counties since the national framework in which devolution is embedded is profoundly influenced by its decisions with little or no participation of County Governments.
The adoption of the devolved system of government did not mean that values, attitudes and mind-sets of implementer, national government top public officials with decision-making powers, adjusted accordingly. National Government bureaucrats are still beholden to the former system where decision-making define governance processes. Part of the challenges facing devolution implementation is the resistance by national political and institutional actors to give space and support to county governance.
Decision-makers at the national level perceive the transfer of resources and powers to counties as a loss of power and control over resources. This has significant shades of resistance in the transfer and management of resources and functions, which is attributable partly to the desire by national functionaries not to let go of control over resources and functions that have been devolved to counties. Further, there is large segment of personnel which was transferred to Counties and came with old ways of doing things.
While devolution is based on the constitutional principle of cooperation and consultation, which in turn is based on ‘equality of levels’ of Government, the institutional, political, and governance culture in the country still remains that of centralized decision-making. It will take time for national government actors to accept reality that Kenyans decisively shredded the old order and its baggage especially on division of powers, resources, and functions. County Governments are equally to blame for failing to robustly assert their political demand for full implementation of devolution in accordance with letter and spirit of Constitution.
Transition to full devolution remains incomplete. The time of the Transitional Authority lapsed without it completing its mandate. This has seen a big gap on key functions and resources that were meant to be transferred to devolved governments including sector wide functions. The Authority’s functions included: clarify and unbundle national and county government functions as provided in the Constitution, facilitate the transfer of functions, assist in the division of assets and liabilities between the two levels of Government, assist in the costing of the national and county functions for purposes of budgeting and assess capacity needs at the national and county levels and take measures necessary to ensure counties have adequate capacity. The unbundling, costing and transfer of functions were expected to inform important processes in county and national planning and budgeting processes.
Mostly the old order legal, institutional and policy systems are intact. Ideally, they should have been completed before or soon after county governments came into place in order to ensure orderly performance of county government functions. Kenya Law Reform Commission has tried to assist County Governments in drafting laws that meet constitutional threshold. There are concerns that most of the national laws and policy documents in most sectors are developed by the national line ministries without effective consultation and the involvement of counties. This is true even for the development of national budget policy statement, taxation and national government borrowing. Another main challenge facing counties are lack of adequate technical capacity and resources for service delivery and adsorption of development funds.
The Constitution envisages consultation and cooperation between different institutions in order to ensure a cohesive pursuit of constitutional devolution objectives. The law and policy-making processes are processes that should engender cooperation and consultation. However, there has been little or no consultation, even where the Constitution explicitly requires cooperation. For instance on legislative front, the Constitution requires both chambers of Parliament to agree on whether a law affects counties or not but, in practice, the National Assembly has in many instances sought to exclude the Senate from law making.
Apart from the legal and policy challenge, another major problem of the devolution implementation is the alignment of institutional and structural arrangements at the national and county levels in accordance with the Constitution to remove duplication and overlaps. Drafters of Constitution created mechanism of tackling this problem through Articles 183 to 189. Implementation of devolution entails the restructuring of pre-existing institutions and building of new institutions, especially at the county level, and abandoning some of the old institutions. This should be followed by the alignment of resources both human and financial as envisaged in the Constitution in order to facilitate performance of functions at the two levels of Government.
The performance of county functions is the end product that citizens at the county level are supposed to receive. However, the effectiveness of service delivery at the county level, like at national level, is dependent on the preparedness of the counties and the effective transition to county governance. Inevitably, quality service delivery became a casualty of the poorly-managed transition process.
The lack of clarity on the nature and extent of county functions, something to date remains unresolved, led to poor planning and execution of county functions. In this ensuing confusion, counties have been planning and executing their functions without any clear consensus guiding policy. Despite this confusion, assessments done by various institutions on county government services delivery reveal remarkable progress made across the 47 counties in the provision of some of the services. There exists sufficient evidence to support the assertion that counties have commenced projects and services that will in the long run enhance access to development and vital services across the country. Counties will only meet the high expectations concerning service delivery if there are enough resources.
Service delivery at the county level requires that county laws and policies provide the appropriate institutional, legal and policy frameworks for service provision. However, as is the case with national frameworks for service delivery, the legislative and policy processes at the county level have not matched up to the services offered. For instance, in 2016, 79 percent of Kenyans supported devolution and its county government system whereas only 20 percent stated that they do not support it. A Report by Twaweza East Africa in 2017 concluded that 88 percent of Kenyans actively support and 11 percent did not support it.
One of the principles of public finance management is that counties should be adequately resourced to enable the performance of their functions. The Constitution provides a set of principles to guide the management and utilization of all public finances. The principles include: fair and equitable distribution, transparency and accountability, and timely informed public participation in the planning and use of public finance. The Constitution also calls for fiscal discipline and prudence by the county government and all other public institutions. Counties are, therefore, required to adhere to these principles in the management and use of resources.
There are numerous reports of imprudent use of funds allocated to counties. These range from overpriced goods and services that are procured by county governments to expensive foreign trips that consume funds that could have been redirected to service provision. The recurrent expenditure of counties has been reported as high with a large amount of funds going to salaries, partly due to the bungled transition of human resources. This is no different from national government. In fact at national level it is atrocious. However, this cannot justify mismanagement of public finance at county level.
While counties routinely exhaust the moneys set aside for recurrent expenditure, there are emerging reports that they are not able to utilize their development funds owing to capacity constraints. Annual reports of county expenditure keep revealing huge balances of unspent development funds. Further, despite the requirement for counties to enhance and maximize their local revenue collection, most counties have not put in place measures to achieve it. The total amount of revenue collected by Counties compared to the former local authorities has risen only marginally under the current county governments. While counties have a relatively limited source of local revenue, it is important for counties to ensure that at least a part of the total revenue needs is met at the county level. This will not only enhance local accountability but will also ensure that counties are not wholly dependent on constitutional set national revenue share transfers.
There are emerging challenges on oversight and accountability in the counties. This has led to confusion and conflict between and within national and county institutions with regard to accountability. While the county assemblies have constitutional powers to exercise oversight on how funds are managed and utilized by county executives, the Constitution also vaguely vests the Senate with powers to exercise ‘oversight over national revenue allocated to the county governments’. Courts have determined that Senate comes in as last resort and or in extraordinary circumstances.
National Government through the National Treasury has certain constitutional powers to regulate the financial and fiscal affairs of county governments. The multiplicity of institutions with related roles has led to conflicts between the Senate and governors, and even between the national two chambers. The county assemblies lack effective capacity to monitor the use of funds by county executives. Also there is serious problem of compromise of Assemblies by Executives. There is need for proper checks and balances as well as accountability systems. This will ensure that funds are managed and utilized in the manner prescribed by the Constitution.
The funding of counties is structured in a way that does not allow them to sustain themselves and attributes a central role to the National Government. The main reasons are the dependency of counties on the equitable share and their constrained possibilities for collecting revenues. Restrictions on the revenue autonomy of counties are major negative effect to devolution. Funding is certainly the way the National Government is influencing the development of devolution most, either in a supportive or undermining manner. One trend concerns the revenue generation of counties. A vast majority of them fail to achieve their revenue collection goals and have challenges concerning reliable budgets. One major reason for these shortcomings is human capacity constraints and poor monitoring system of revenue collection that has created loopholes for siphoning of revenue collected along the revenue collection chain. It is imperative that counties strengthen their revenue base and show the ability to cover substantial parts of their expenditures as a sign of a well-functioning and robust devolved governance system.
The consequences of corrupt practices on devolution should not be underestimated. Corruption poses a significant threat to devolution because it undermines the benefits and prevents an improvement in the daily life of Kenyan citizens. It endangers democracy and the legitimacy of devolution, hence the socio-economic development of counties. It also harms service delivery. If citizens continue to question the integrity of their county representatives, see no progress in development due to lack of funds and are still confronted with bad public service, it is very likely that they will potentially turn against the devolution.
Skilled and sufficient county staff is the basis for proper service delivery as well as data-informed and evidence-based policy decisions. The capacities of human resources at the county level are central because it directly affects key deliverable of devolution, which is service delivery to the people. Only well-qualified and a sufficient number of county staff form basis for proper service provision. If personnel issuer is not effectively handled, it will significantly compromise service delivery at the county level. Balancing national and county autonomy of the staffing issue has proved tricky.
The national standardization of human resources policy could curb uncontrolled personnel spending and reduce capacity gaps across and within counties. This will also address the working relations between the County independent public service boards and the county executive. Therefore, creating effective professional Human Resource management policy is fundamental with clear job entry, terms of service and condition including remuneration.
The national youth bulge is very relevant to the counties. ICT empowerment among the counties can be focused on the youth to target and promote entrepreneurship and start-ups at the county level. Additionally, ICT contributes to improving the competitiveness of services and products offered.
County governments have the upper hand in solving unemployment rates challenge among the youth. Youth comprise the most significant percentage of the population across counties, and yet has the highest unemployment rates. While it has enormous opportunity for creating jobs, developing skills on Information Communication Technology (ICT) sector has an even more significant stake in accelerating progress towards attainment of the goals of devolution. ICT can offer opportunities to create employment in particular for youth since they are the most technologically educated group. With a median age of 19 years, Kenya is a very youthful country. Evidence of the continuing linkage between demographic changes and devolution is very apparent.
One of the primary objectives of devolution envisioned in the Constitution was to provide proximate and easily accessible services throughout the country. In order to provide interlinked and easily accessible services to the people, there is need to synchronize data and operations, which is possible through the collaboration of technologies and services. The innovative use and integration of ICT within county governments has made it possible to tailor services and so meet people’s needs in an efficient manner. Through the use of ICT technologies and services that can process information and transact independently, county governments have made it possible for citizens to acquire services like the application of business permits, trade licences, rates payments and electronic filing of taxes.
The increased use of ICT tools means more accountability and transparency since citizens have better access to information. The application of ICT services, especially in the area of public procurement, can be a useful instrument to combat corruption, since processes become more transparent. It reduces bureaucracy and stimulates local businesses.
When county governments place greater emphasis on the utilization of knowledge bases available through ICT, their capacities can be enhanced decision making, skills development, and capacity building. Technologies enable counties to set up cost-efficient innovation and experience-sharing platforms helping peer-to-peer learning. Of critical importance is that ICT has automated revenue collection for counties thus optimizing the process of revenue management to the benefit of counties. The utilization of innovative ICT services will be crucial to the sustainability of resource generation for county governments in revenue management and sector wide application especially in sectors like health. Consequently, the potential for ICT to be a decisive push factor for devolution is enormous on both economic and social fronts.
Public participation and accountability are vital governance requirements. They are embedded in the Constitution, several laws concerning devolution and Courts’ decisions. Most importantly, Articles 1(1) and (2) of the Constitution emphasize that all sovereign power belongs to the people of Kenya. Articles 10(2) (a) and (c) espouse participation of the people and accountability as national values and principles of governance. Article 174(c) lists the right to self-governance, the participation of the people in the exercise of the power of the State as well as the right of communities to manage their affairs. Despite the laws, acts of citizen participation and accountability at county level require institutionalized structures and procedures as well as education and information for the citizens. Access to information builds the basis for participation and accountability at the county level. Information has to be published and publicized in due time and in a way that makes it easy to understand, and accessible. Mostly, venues or structures for public participation are often without political backing, infrastructure, funding or capacity and consequently are incapable of fulfilling their purpose. The trust in county institutions, as well as their representatives and their responsiveness to input from citizens, is essential for the positive development of devolution.
Legal certainty has proved to be challenging between National Government and county governments. It is normal that reconfiguration of a governance system leads to tensions and power struggles and requires some time until the different institutions are working well together. However, several National Government bodies show reluctance to completely hand over their responsibilities to the counties as stipulated by law.
The funding of counties is structured in a way that does not allow them to sustain themselves and attributes a central role to the National Government, to create unhealthy dependence.
The enacting of legislation that goes against the spirit of devolution is one of the impediments to the fulfilment of the mandate of county governments. Accountability of both national and counties and their representatives constitutes an essential element of the rule of law in the devolved governance system. This is not limited to political but also to political accountability, which demands strong institutions with the powers to execute their mandates. Decisions on planning and budgeting of local development projects require the input of the population to prevent white elephant projects which do not meet the needs of the citizens and disappoint their expectations in local politics as well as in devolution. A case in point is in Marsabit County where local residents served local leaders with dirty water signifying their disproval of their County government priorities. This action also brought out the centrality of public participation in policy, planning and budgeting.
The Constitution is unequivocally clear and meticulously articulates the principles of inclusion, equality, diversity and partition. However, there is no solid law both at national and county levels to enforce these principles. Devolution is about offering opportunities to implement inclusive growth and development across all fronts. The need to provide equitable and accessible services to the people at the county level as well as eliminate the inequalities in different parts of the country informed the devolution agenda. It is imperative that the county governments build inclusive societies and improve the welfare of all peoples within their territorial jurisdiction. Central to aiding county governments to achieve these objectives is the elimination of all forms of discrimination, and celebrating diversity by ensuring inclusion of all communities in distributing county resources, projects and opportunities.
A keen look of the disparities and inequalities in all counties indicates that a big responsibility lies on the county governments to redress them. It is clear that county governments are significant platforms for communities to access and benefit from public service delivery. County governments also offer employment opportunities. Exclusion and discrimination in any form is a threat not only to national unity but also to community relations at the county level.
Article 69(1) of the Constitution requires the State to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. To ensure collaboration and synergies of the two levels of Government, the responsibility of implementing specific National Government policies on environment and natural resource conservation is left to the county governments. The efficient utilization and management of the counties’ natural resources will determine how well the country and the counties perform economically and how they improve the quality of life of their citizens. The local communities through their county governments have now been empowered to manage natural resources. County governments must leverage on the existing legal instruments to support sustainable management of resources. The negative impacts of climate change (key issue for the County government to address) and the management of the ever-growing scarcity of natural resources presents a huge challenge to the county governments. It is necessary to protect natural resources and manage them efficiently. County governments ought to take up the responsibility of strengthening institutions that deal with natural resource sustainability at the county level.
Some natural resources are transboundary. The utilization, protection, governance and share of benefits of such transboundary resources can become a source of conflict or of cooperation between counties. This is particularly so where the resource is essential for service delivery to the population or economic value creation. Constitution has put in place progressive policy provisions, laws and institutions; it is now upon the implementers of devolution at the county level to leverage legal instruments to manage natural resources appropriately.
In conclusion, devolution is a serious national political project after the multiparty democracy and new constitution struggles. It is a long journey with great expectations but that demands patience, political will and commitment to achieve its core objectives stipulated in the Constitution especially after many tortuous years of highly centralized system. Kenyans must lead from the front in forcing its realization. Politicians and bureaucrats will only support its noble objectives under massive civic pressure.
There has to be decisive political actions especially from Governors side to force restructuring and reordering the old order system of national institutional and legal arrangement of ministries, departments and agencies including sector wide to accord and with and respect devolution andcomplete transition. Further the entire national socio-economic, taxation and borrowing framework must see paradigm and give County governments voice on the table of decision making. There has to be comprehensive audit, unbundling and costing of all functions both exclusive and concurrence. County governments must develop a nationally standardized human resource management policy while giving an individual County an avenue to create incentives to attract specialized and skilled workforce especially to regions that have been historically marginalized. Technical capacity gaps remain are big challenge to be addressed by different counties.
County governments must enhance local revenue collection and ensure prudent use of resources in order to secure financial autonomy. Oversight, accountability and reporting mechanisms need to be enhanced. County governments have pivotal role in creating right regulatory framework for private sector to thrive and grow local economy. Also deepening of public participation and access to information must be strengthened. In addition to establishing proper county institutions, processes, procedures and systems, the County governments must shift gears in ensuring the nature, distribution and quality of services have significantly assured and improved. Finally, civic education on devolution and broader Constitution is key and need to be highly supported. Civil society and media need to take their right role in advancing devolution objectives.(
— Writer is Executive Director, International Centre for Policy and Conflict, an independent not-for profit public policy, advocacy and education institute with credibility and recognition in advancing Human Security, Sustainable Democratic Development, and Larger Human Rights and Freedoms