Devolved Government Bills, 2012: The Devolved Government Bill, 2012, The Intergovernmental Relations Bill, 2012 and Transition to Devolved Government Bill, 2012.
Devolution in the Kenyan context means transferring of political administrative and fiscal powers from the national government to the fourty seven (47) counties which were created by the Kenyan Constitution 2010 (the Constitution). It is important to note that the country maintains a unitary government which for historical reasons had to be modified to establish devolved government in order to ensure equitable distribution of
resources and more effective citizen participation in governance. Indeed devolution is one of the major pillars of the constitution which also has a strong bill of rights, strong checks and balances, citizen participation, transparency and accountability in governance. The Constitution laid the foundation for a wide range of reforms in the political, social and economic spheres.
The transition to the devolved form of governance is likely to face a myriad challenges including possible resistance by the national government to cede powers to the counties, uncertainties arising from the fact that Kenyans hardly have adequate collective experience in running truly devolved government.CMD-Kenya is working with and through political parties to facilitate smooth transition to the new system of governance by convening for fora representatives to acquaint themselves with the essentials of running county governments. The legal and operational framework is being put in place: Six pieces of legislation were initially drafted by the
Task-Force on Devolution and presented to the Ministry of Local Government for further development and enactment by Parliament. The Urban areas and Cities Act 2011 was passed by Parliament and the following bills are outstanding:
• Devolved Government Bill, 2011
• Transition to County Governments Bill, 2011
• Intergovernmental Relations Bill, 2011
• Intergovernmental Fiscal Bill, 2011
• County Governmental Bill, 2011
The Devolved Government Bill, 2011, Transition to County Governments Bill, 2011and The Intergovernmental Relations Bill, 2011were scheduled to be passed before the 28th February 2012 deadline. The enactment of other pieces of legislation is faced with time constraints because Parliament has just resumed and there is very little time to scrutinise these bills and propose necessary changes. The short notice of tabling the Devolved government bills has left political parties with little opportunity to scrutinise and take
comprehensive positions on the bills.
Nevertheless, Parliament went ahead and passed this Bill and forwarded it to the President for assent. The President refused to assent to the Bill and returned it to Parliament to reconsider. According to the President, some of the provisions that were passed by parliament were ‘unconstitutional’.
For instance, the constitution provides that the National and County governments shall be ‘distinct’ but the President found that the county and ward administrators had been placed under the authority of the county governments. He prefers that the administrators, represent the interests of the national government at the counties and this can only happen if they report to the national government.
These administrators are basically officers, district commissioners and provincial administration including chiefs, district officers and provincial commissioners. The transitional provisions of the constitution allow a five year period for the provincial administration to be restructured and to the devolved government.
In view of the points raised in the memorandum of objection to the Speaker, Parliament shall debate the bill once again and if it adopts the position of the President, the bill will be taken to him for assent. However, if Parliament maintains that the bill be retained in its current form, it will need to be passed by at least two thirds of Members of Parliament and the President will have little choice but to assent to it. In any event if the President still refuses to assent, the Bill will automatically become law after fourteen days from the
date of submission.
In a recent forum, The Devolved Government Bill, 2012, The Intergovernmental Relations Bill, 2012 and Transition to Devolved Government Bill, 2012 were scrutinised and initial positions taken on a range of issues including the following:
National and County Resources
The constitution has clearly laid out national resources such national parks, minerals, forests, airports, harbours and energy installations. It was noted that there are misconceptions in the counties as to what constitutes national resources that happen to be within the area of jurisdiction and what role the county government will play in their exploitation. Examples of the Maasai Mara Game reserve and ports harbours and tourist sites at the coast were cited. In both instances, sections of the local communities seem to expect that they should control revenue collection from these facilities. Participants felt that as a way of reducing high expectations in areas where national resources are situated. However, in order to maintain a sense of ownership counties in which national resources are based. A certain percentage of revenue from national
resources should be retained to enhance the sense of local ownership and to develop the respective counties.
Management of Inter-county Resources
Participants noted that there is an inherent risk of conflicts between counties who share common resources as evidenced by the latent rivalry between the Turkana and Pokot counties over parts of the Turkwell Hydroelectric Dam. Inter-county conflicts should be anticipated and communities sensitised to use Alternative Dispute Resolution mechanism to resolve conflict in line with the Intergovernmental Relations Bill, 2012. This bill strongly provides judicial intervention in conflicts amongst the counties and between the counties and the national government as the very last resort. Local communities should also be sensitised on alternative dispute resolution mechanisms inn both intra and inter county conflicts.
While The county Finance Management Bill is expected to address these issues, a policy on revenue sharing on natural resources situated in specific counties including retention of a certain amount of revenue over and above the traditional revenue and fees should be urgently worked.
Employment Opportunities in the Counties
This issue is likely to bring about some strains within the counties unless clear policies and guidelines are issued by the national government. The Devolved Government Bill creates the County Public Service Board whose function would be to establish and abolish offices in the county public service and principles of employment and underlying values have been specified. But some other practical aspects need clarification. For instance some participants were of the opinion that, in line with affirmative action, only those persons ‘originating from specific counties’ should be considered for employment and that applicants from ‘other counties/outside’ do not qualify to compete for the county level positions. On the other hand others felt that the constitution expressly prohibits discrimination of all kinds and espouses national unity as one of its national values. To avoid tensions that might arise from the different approaches, recruitment guidelines based on best practices should be developed and adopted. These should strike a balance between the need to support local capacity while promoting the spirit of national unity.
Requirement of Officers
The bill provides that only certified secretaries can be appointed to the position of Secretary to the County Pubic Service Board. This requirement prevents other persons with equivalent qualifications and professional standing from applying for the positions. It was recommended that other people with equivalent qualifications and training from recognised institutions within and outside the country should also be considered for the
job of Secretary
The need for massive civic education
Most people in Kenya remain ignorant about the expected operations of devolved governments. They can hardly distinguish the functions of the Governor, Senator, Woman National Assembly representative and those of other elected offices. The national government should invest in massive civic education to help citizens understand the concept of devolution, their role in the transition to devolved government and responsibilities in decision making.
