Final Report of The Task Force On Devolved Government

REPUBLIC OF KENYA
Office of the Deputy Prime Minister and Ministry of Local Government
Final Report of the Taskforce on Devolved Government
Volume I: A Report on the Implementation of Devolved Government in Kenya
The Constitution is the expression of the will of the people
Signature Page for the Task Force on Devolved Government

Mutakha Kangu Lucy Muthoni Kambuni Edward A. Oyugi Emmanuel Lubembe Eric M. Aligula Fatma Ali Saman Gichira Kibara Hamisi Mboga Harriet Naitore Jelani Habib Joash Dache John Nguri Joseph W. Irungu Julius Malombe Kasembeli W. Nasiuma Kennedy Nyaundi Chairperson Vice Chairperson Member Member Member Member Member Member Member Member Member Member Member Member Member Member _ __ __ __ __ _ __ __ __ __ _ __ __ __ __ __________________________ _ __ __ __ __ _ __ __ __ __ _ __ __ __ __ __________________________ __________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________
Kenneth W. Akide Kibisu Kabatesi Marion Muriithi Nehemiah Ngeno Onesimus Kipchumba Murkomen Patrick Karanja Patrick O. Onyango Pauline Nyamweya Polycarp J.O. Ochilo Samuel G. Karicho Sylvester M. Osodo Winnie V. Mitullah Pauline N. Muriithia Antony Oteng Ombwayo Angeline Hongo
Member Member Member Member Member
__________________________ _________________________ _________________________ __________________________
_________________________ Member Member Member Member Member Member Member Joint Secretary Joint Secretary Joint Secretary __________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________
Acknowledgements
In carrying out its mandate as stipulated in Gazette Notice no 12876 of 25th October 2010, the Task Force members benefited from the generous contributions of many individuals and organizations. We would like to thank the Office of the President, Office of the Prime Minister, and the Office of the Deputy Prime Minister and Ministry of Local Government for the support they gave us during our term of office. In particular, we would like to thank the 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 Office of the Deputy Prime Minister and Ministry of Local Government gave the Task Force the necessary financial and technical support. We are particularly indebted to the Office of the Prime Minister for the financial support and UNDP for coordinating development partners 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, residing in the various counties, we acknowledge with gratitude your positive responses during the county visits. We thank you for providing your views, without which, the Interim Report and now this Final Report. There are many other people and organizations that provided support, encouragement, and ideas during the research, consultations, collection and validation 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, Private Sector practitioners, academia 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. We would also like to acknowledge the invaluable contributions of the Steering Committee, Joint Secretaries, the Secretariat, Programme Officers, and the Research Assistants, including the Rapporteurs and Hansard Reporters. Finally, we acknowledge the arduous and professional work done by the external editors and typesetters.
Contents
Signature Page for the Task Force on Devolved Government ................. c Acknowledgements...................................................................................... i List of Acronyms ......................................................................................... vi Task Force Mandate, Terms of Reference and their Interpretation .........1
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Introduction ................................................................................................1 Mandate of the Task Force .........................................................................1 The Powers ................................................................................................. 2 Terms of Reference and their Interpretation ........................................... 2 Interpretation of the Task Force Mandate ............................................... 3 Approach to and Scope of the Assignment .............................................. 4 Challenges in Implementation of the Assignment ................................... 7 Report Purpose .......................................................................................... 8 Organization of the Report ....................................................................... 8
Context and Constitutional Foundations of Devolved Government in Kenya 10

2.1 Introduction ..............................................................................................10 2.2 The Centralized Colonial State...................................................................11 2.3 Concept of a Constitution ......................................................................... 15 2.4 The Concept and Theory of Devolution ................................................... 15 2.5 Kenyas Unique Form of Devolution ........................................................22 2.6 Conclusion .................................................................................................25
The Promise of Developmental Devolved Government ......................... 26

3.1 Introduction ............................................................................................. 26 3.2 Building Blocks for Cooperative and Competitive Counties .................. 29 3.3 Conclusions................................................................................................32
Units and Governance of Devolved Government .....................................33

4.1 Introduction ............................................................................................. 33 4.2 Local Governance ..................................................................................... 33 4.2.1 .................................................................. Principles of Local Governance 34 4.3 Rural Areas ................................................................................................37 4.4 Urban Areas and Cities ............................................................................. 38 4.5 Classification of Cities and Urban Areas ...................................................41 ii
4.6 Challenges for Forty Seven Counties ...................................................... 45 4.7 Policy and Legal Gaps................................................................................ 51 4.8 Conclusions...............................................................................................60
Structures and Institutions of Devolved Governance ............................. 62

5.1 Introduction ............................................................................................. 62 5.2 Principles of Governance ......................................................................... 62 5.3 Legislative Arm of County Governments ................................................ 64 5.4 Executive Arm of Government ................................................................ 84 5.5 Restructuring of the Provincial Administration .....................................103 4.6 Checks and Balance .................................................................................105 4.7 Removal from Office ...............................................................................105 4.8 Conclusions on the County Executive ....................................................107
Functional Assignment for Effective Public Service Delivery in Kenya 109

6.1 Introduction ............................................................................................109 6.2 Constitutional Provisions on Functional and Competency Assignment110 6.3 Sharing of Functions and Powers ............................................................113 6.4 Interaction of National and County Laws .............................................. 114 6.5 Financing of Functions .............................................................................115 6.6 Functional Assignment and International Experience .......................... 116 6.7 Principles to Guide Functional and Competency Assignment Decisions117 6.8 Limits of Devolution ................................................................................ 123 6.9 The Need for Unbundling of Functions.................................................. 124 6.10 Processes for Coordinating Decisions on Functional Assignment ...... 125 6.11 On-going Role of National Ministries and Sectors................................. 125 6.12 Proposed Road Map for Assignment of Functions and Competencies in Kenya .........................................................................................................126 6.13 Setting of Service Standards/Norms ..................................................... 135 6.14 Performance Management System ......................................................136 6.15 Transfer of Assets and Liabilities ...........................................................138 6.16 Changes in Laws and Policies ................................................................139 6.17 Costing of Assigned Functions and Competencies ..............................139 6.18 Organizational Options for Effective Service Delivery ......................... 141 6.19 Budgetary Implications ......................................................................... 142 6.20 Changes in Administrative Structure....................................................143 6.21 Capacity Building ....................................................................................144 6.22 The Transition Phase .............................................................................144 6.23 Consequences of Ineffective Functional and Competency Assignment144 6.24 Conclusion .............................................................................................145
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Integrated Development Planning in Devolved Governments .............146

7.1 Introduction ............................................................................................146 7.2 Integrated Development Planning and Effective Public Service Delivery147 7.3 Operationalizing Effective Integrated County Development Planning 149 7.4 Conclusions.............................................................................................. 152
Intergovernmental Relations and Conflict Resolution ..........................154

8.1 Introduction ............................................................................................154 8.2 Constitutional Foundations For Intergovernmental Relations .............156 8.3 Intergovernmental Relations: Conceptual Issues ................................. 157 8.4 Mechanisms of Co-ordination and Co-Operation ..................................158 8.5 Inter-County Governmental Relations ...................................................163 8.6 The Role of Senate .................................................................................166 8.2 Conclusion ...............................................................................................168
Intervention and Suspension ..................................................................169

9.1 Introduction ............................................................................................169 9.2 National Government Intervention ........................................................169 9.3 Suspension of County Governments...................................................... 172 9.4 Conclusion .............................................................................................. 173
Citizen Participation, Protection of Minorities and Marginalised Groups175

10.1 Introduction ............................................................................................ 175 10.2 Citizen Participation ..............................................................................176 10.3 Protection and Inclusion of Marginalised Communities and Groups ..189 10.4 Conclusions ........................................................................................... 209
Public Communication and Civic Education in Devolved Governance ..210

11.1 Communication and Devolved Governance ..........................................210 11.2 Civic Education on Devolved Government............................................. 221
Building an Effective and Capable Public service .................................. 234

13.1 Introduction ........................................................................................... 234 13.2 County Public Service ............................................................................ 238 13.3 Transitioning from the Current Public Service ...................................... 241 13.4 Conclusions ........................................................................................... 247
County Governments Financial Resources and their Management .... 249

14.1 Introduction ........................................................................................... 249 14.2 Revenue ..................................................................................................253 14.3 Inter-Governmental sharing of revenues............................................. 258 14.4 Loans, Grants and Donations ............................................................... 270
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14.5 Financial Management and Controls ....................................................277 14.6 Financial Reporting and Audit .............................................................. 294 14.7 Financing County Infrastructure and Investment ............................... 298 14.8 Institutional and Transitional Issues .................................................... 303
The Implementation Framework for Transition to County Governments305

15.1 Proactive Management of the Transition ............................................. 305 15.2 Organizing the Transition Road Map.................................................... 306 15.3 Transition to County Governments ...................................................... 308 15.4 The Transition Programme ....................................................................310
Annexes ..................................................................................................... 316

Annex 1: County Consultations Questions ...................................................316 Annex 2: Schedule of County Visits of 20th February to 16th March 2011 . 320 Annex 3: International and Other Treaties and Conventions Relevant to Devolution ...............................................................................................327 Annex 4: Classification of Urban Areas and Cities by Services Delivered .. 328 Annex 5: Criteria for Assigning Activities and Competencies .......................... Annex 6: Unbundling of Functions Decision Making Criteria........................... Annex 7:Constitution of Kenya, 2010 Provisions Relevant to Functional Assignment and Public Service Delivery .......................................................................... Annex 8:Mapping of Functions from the Fourth Schedule, Constitution of Kenya, 2010 ............................................................................................................... Annex 9: Proposed Sector Clustering ............................................................... Annex 10: Review of Methods for Costing Delivery of Devolved Services...... Annex 11: Constitution of Kenya, 2010 Provisions relevant to Integrated Development Planning ................................................................................ Annex 12: Proposed National Planning Framework ......................................... Annex 13: ..Provisional Simulations of Horizontal Revenue Sharing Scenarios Annex 14:.................................................................Provisional County Profiles Annex 15:FRAMEWORK FOR CIVIC EDUCATION PROGRAMME ON DEVOLUTION (CEPOD) ........................................................................................................
List of Acronyms
BLOT BOO BOOT BOT CEPOD CCIC CCN CDF CIC CIOC CIPFA CoK CP CPS CRA CRPD CSO DBFO DBM FACTS GDP GIS GJLOS IASB ICDP ICPAK IPSAS ICT IEBC IFMIS IFRS IGR IIA IIEC ILO IPSAS JICA vi Build Lease Operate Transfer Build-Own-Operate Build-own-operate-transfer Build Operate Transfer Civic Education Programme on Devolution Cabinet Committee on Implementation of Constitution City Council of Nairobi Constituency Development Fund Constitution Implementation Commission Constitution Implementation Oversight Committee Chartered Institute of Public Finance and Accountants Constitution of Kenya Community Participation Committee of Permanent Secretaries Commission on Revenue Allocation Convention on the Rights of Persons with Disabilities Civil Society Organisation Design Build Finance Operate Design Build Maintain Functional Assignment and Competency Teams Gross Domestic Produce Geographic Information System Governance, Justice, Laws and Order Sector International Accounting Standards Board Integrated County Development Plan the Institute of Certified Public Accountants of Kenya International Public Sector Accounting Standards Information and Communication Technology Independent Electoral and Boundaries Commission Integrated Financial Management Information System International Financial Reporting Standards Intergovernmental Relations Institute of Internal Auditors Interim Independent Electoral Commission International Labour Organisation International Public Sector Accounting Standards Japan International Cooperation Agency
KACC KADU KANU KEPSA KIA KRA LA/LAs LAIFOMS LASDAP LATF LGA LGLA LSK M&E MC MDA MoLG MoSPS MPs MSS MTEF NARC NG NGOs NSA NTA NUGDPF OECD PA PCC PCM PETS PFI PFM PFMR PRF PPOA PPP PRSP PSC
Kenya Anti-Corruption Commission Kenya African Democratic Union Kenya African National Union Kenya Private Sector Alliance Kenya Institute of Administration Kenya Revenue Authority Local Authorities Local Authority Integrated Financial Operations Management Systems Local Authority Service Delivery Action Plan Local Authority Transfer Fund Local Government Associations Local Governments Loans Authority Law Society of Kenya Monitoring and Evaluation Management Contract Ministries, Departments and Agencies Ministry of Local Government Ministry of State for Public Service Members of Parliament Minimum Service Standards Medium Term Expenditure Framework National Rainbow Coalition National Government Non-governmental Organisations Non State Actors National Taxpayers Association National Urban Growth and Development Policy Framework Organization for Economic Co-operation and Development Provincial Administration Presidents Coordinating Council Project Cycle Management Public Expenditure Tracking Surveys Private Finance Initiative public Finance Management Public Financial Management Reform Programme Public Procurement Oversight Authority Public-private partnerships Poverty Reduction Strategy Papers Public Service Commission vii
PUO PWD RMLF RPRLGSP SALGA SMS SWAP TFDG TJRC TORs TWG UN UNDP
Purchase Upgrade Operate Persons with Disabilities Road Maintenance Levy Fund Rural Poverty Reduction and Local Government Support Programme South Africa Local Government Association Short Message Service Sector Wide Approaches Task Force on Devolved Government Truth Justice and Reconciliation Commission Terms of Reference Technical Working Group United Nations United Nations Development Programme
UN-HABITAT United Nations Agency for Human Settlements
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Chapte
Task Force Mandate, Terms of Reference and their Interpretation

1.1
Introduction
ursuant 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. Additional members of the Task Force and Steering Committee were gazetted on 3rd December 2010. The purpose of the task force was to work on the implementation of the devolution process and advise the government on policy and legal frameworks for devolving power, resources and responsibilities to the people of Kenya for effective local development. Among other things, the Task Force was to make recommendations on an appropriate civic education programme on devolution. The Deputy Prime Minister and Minister for Local Government, Hon. Musalia Mudavadi, officially launched the Task Force on 8th November 2010.
1.2
Mandate of the Task Force
The overall mandate of the Task Force was 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 were to: 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. d.
Commission studies or researches as are necessary for the effective execution of its mandate. With reference to specific provisions of the Constitution, collect and collate public views on how implementation of the devolved government should be structured. Undertake stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. Recommend policy frameworks for implementation of devolved government as provided for in the Constitution. Make proposals on appropriate legislation to anchor and implement the devolved government; and Make monthly reports or as may be required by the Steering Committee.
e. f. g. h.
1.3
The Powers
The powers of the Task Force were to: a. Hold meetings, public forums or consultations as it shall deem necessary; b. c. d. e. Hold meetings in any part of the country and shall ensure views from all the counties are received and considered; In consultation with the Steering Committee, co-opt local and international experts in particular areas of need as may be necessary; Commission studies or researches to institutions or individuals with requisite expertise, as required to undertake its tasks; 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; and Nominate acting Chairperson from amongst the members in the absence of the Chairperson.
f.
1.4
Terms of Reference and their Interpretation
The TFDG was expected to submit to the Steering Committee Reports that shall, inter alia, contain recommendations for: a. operationalizing the functions of each County, consistent with the Fourth Schedule of the Constitution; b. restructuring the provincial administration to accord with and respect the system of devolved government established under the Constitution;
c. d. e.
the specifics of the financial management system that the County Governments shall perform; the taxes and charges that each County may impose; to prepare drafts of such new legislation including legislation on urban areas and cities under Article 184 of the Constitution and review of the Local Government Act (Cap. 265) or the Local Government Bill, 2009 as may be necessary; assistance to County governments in building their capacity to govern effectively and provide the services for which they are responsible; and a programme for civic education on the proposed legislation.
f. g.
1.5
a. b.
Interpretation of the Task Force Mandate

The Task Force understood its mandate to entail: Holistic and careful reading of the Constitution of Kenya 2010 and isolating provisions relevant to devolution and touching on the terms of reference of the Task Force; Together with (a) above developing thematic areas on issues to inform public consultations as outlined in the Kenya Gazette Notice establishing the Task Force; Undertaking participatory public consultations in all the 47 counties as set out in the First Schedule of the Constitution; On the basis of research, strategic public consultations, comparative analysis through benchmarking making concrete proposals on how functions assigned County Governments in the Fourth Schedule should be operationaslised so as to render effective and efficient public service delivery; Consulting widely and making proposals on the organs necessary to enable counties discharge the functions assigned by the Constitution as well as on developmental planning processes; Undertaking consultations and making recommendations on the units and levels of devolved governments, including formula for delineating sizes of wards within each county; Making proposals to the Central Government on how the Provincial Administration should be structured as prescribed by Section 17 of the Sixth Schedule of the Constitution to accord with and respect the structures and system of devolved governments set out in (f) above;
c.
d. e.
f.
g.
h.
i.
Holding consultations and research and making appropriate recommendations on the most suitable financial management systems for County Governments together with corresponding facilitative legislation for the same; Making proposals on the revenue sources of counties, including taxes and charges; Making proposals on the most appropriate mechanisms for citizen participation in the affairs of county governments; Undertaking analysis of and making recommendations on the place of minorities, marginalised communities and other vulnerable groups including PWDs;
j. k. l.
m. Making proposals on the appropriate strategic communication on the rolling out and functioning of devolved governments; n. o. p. Making appropriate proposals for a framework for civic education on devolution; Outlining a structured transition road map into devolved governments as well as corresponding strategic actions; and Identifying and facilitating drafting of Bills for the successful implementation of devolution
1.6
Approach to and Scope of the Assignment
The Task Force acted as the technical arm of the Steering Committee and was made up of thirty-one (31) persons drawn from various stakeholders including, but not limited to, ministries, representatives of non-state actors and experts recommended to the Deputy Prime Minister and Minister of Local Government by the Steering Committee. The work of the Task Force was guided by the terms of reference and the following general methodology was adopted: 1. Weekly Meetings: the TFDG held weekly meetings at which both technical and administrative issues were dealt with. In these meetings, the focus was on developing themes for carrying out the work and also consultation on the same. Working Sessions: the various thematic groups, including individual members of these groups, held sessions as groups or jointly on various issues under their purview, with which they were tasked. Working Retreats: working retreats were used to consolidate issues and prepare the various outputs required of the TFDG.
2.
3.
4.
Consultation Meetings: the TFDG held working consultations with various government ministries, development partners and non-state actor groups to develop understanding of the issues. County Consultations: as part of its mandate, county consultations were held in all the forty-seven (47) counties based on five thematic areas developed. These were implemented over a period of three weeks. Validation workshops on the Interim Report were held in all the counties. Workshops and Symposia: workshops and symposia were held with key stakeholders to solidify themes and recommendations identified and made on matters relating to the operationalization of devolved government in Kenya
5.
6.
The TFDG held preparatory meetings leading to a working retreat on 5-8 December 2010 at the Great Rift Valley Lodge, Naivasha, Kenya. A consequence of this retreat was the identification of eight sub-themes, with task force members divided into four groups as shown in Table 1.1.
Table 1.1: Summary of the Thematic Areas

No. THEMATIC GROUP NAME
1 2 Financial resources and management and transitional issues Cooperative and inter-governmental relations and levels of governance, cities and urban areas Citizen participation, protection of marginalized groups and communities, political governance and leadership and communication and civic education Public administration, human resource, capacity building and functional distribution and service delivery.
AREAS OF FOCUS
Financial resources and management Transitional issues Cooperative and intergovernmental relations and levels of governance Cities and urban areas Public participation and protection of marginalized groups and communities Political governance and leadership Public Administration, human resources and capacity building Functional distribution and service delivery Restructuring of the Provincial Administration
Each group was tasked to develop position papers on their thematic areas. Subsequent to this, a list of consultation questions was developed for purposes of soliciting the views of members of the public (see Annex 1). To facilitate the work of the task force a team of programme officers and research assistants were competitively recruited and attached to the thematic groups. To guide the county consultations, the TFDG deliberated and agreed on the following areas of focus, namely:
1. 2. 3. 4. 5.
Cooperative Government, Inter-Governmental Relations and Levels of Governance Functions of and Service Delivery by County Governments Financial Resources and Management in County Governments Political Governance, Leadership, Accountability and Integrity in County Governments Citizen Participation and Oversight, Protection of Minorities and Marginalized Groups and Communication and Civic Education.
For each of these areas, a set of questions was developed and advertised in the newspapers on diverse dates, leading to the county visits (see Annex 2). The Task Force on Devolved Government developed a work programme without outputs to realize the objectives of the study. These outputs were realized through consultations with Stakeholders, research and studies on devolved governments, consultations with relevant ministries, departments and agencies and Benchmarking missions to other countries/regions. Table 1.2 provides a synoptic view of key deliverables with a link to work programmes and tasks.
Table 1.2: Synopsis of Key Work Activities and Deliverables from the Terms of Reference
Work Programme (WP) No Work Programme 1 Work Programme 2 Work Programme 3 Work Programme 4 Work Programme (WP) Description Key deliverables
Prepare a detailed work plan indicating the detailed Detailed Work Plan milestones and timelines and present the same to the Steering Committee. Undertake studies and make proposals for effective Internal and External implementation of devolution structures consistent Study Reports with the provisions of the Constitution. Minutes of Meetings Commission studies or researches as are necessary for the effective execution of its mandate. With reference to specific provisions of the Constitution, collect and collate public views on how implementation of the devolved government should be structured. Undertake stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. Recommend policy frameworks for implementation of devolved government as provided for in the Constitution. Internal and External Study Reports Consultation Concept Note County Consultation Reports County Visits International Symposium Proceedings
Work Programme 5
Work Programme (WP) No Work Programme 6 Work Programme 7
Work Programme (WP) Description
Key deliverables
Make proposals on appropriate legislation to anchor and implement the devolved government; and
Drafting Instructions Draft Bills
Make monthly reports or as may be required by the Monthly Reports Steering Committee.
Between 27 March and 8 April 2011 a retreat was held at the Leisure Lodge, Ukunda to prepare the Interim Report of the Task Force, which was subsequently adopted on Monday 18th April 2011 before it was submitted to the appointing authority through the Chairman of the National Steering Committee. The TFDG continuously engaged with the Steering Committee on a monthly basis or as was required. In consultation with the Steering Committee, the TFDG coopted and/or invited various local and international experts on specified areas. Stakeholder consultations took various forms, including town hall meetings, focus group discussions and meetings with specific experts such as those in the fields of urban planning, finance, law and governance. Members of Parliament and key professional associations were also consulted. Ministries, Departments and Agencies were consulted to get their views on the new roles of the national government; the devolution of functions to counties, including the development of the required standards for service delivery; and, the alternative scenarios for sequencing the devolution of functions. More importantly they were consulted as a basis for facilitating appropriate devolution of functions to the county government.
1.7
Challenges in Implementation of the Assignment
In implementing this assignment the TFDG experienced a number of challenges. These include the inadequate time to implement a comprehensive assignment over a period of eleven months. There were also start-up delays, arising out of the failure to secure funding early enough to finance the various Task Force activities. One of the key mandates of the Task Force was to collect views on operationalization of devolved government from citizens. 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. 7
1.8
Report Purpose
The purpose of this Final Report of the Task Force on Devolved Government is to provide 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. The Report is the basis for the Sessional Paper on Devolved Government in Kenya as well as the Legislation submitted to the appointing authority for onward transmission to the formal organs responsible for implementing the Constitution of Kenya, 2010.
1.9
Organization of the Report
This Final Report of the Task Force on Devolved Government is organized into fourteen, closely related and interrelated chapters. The chapters are organized around specific themes, which are key building blocks for the operationalization and development of an effective devolved government in Kenya. Figure 1.1 illustrates the structure of the report as described in the previous sections.
Figure 1.1: Organization of the Final Report on Implementation of Devolved Government in Kenya
Chapters Two and Three lay the basis for an identification of the reasons why Kenyans adopted a new constitutional framework founded upon a devolved framework. They also establish, on the basis of the constitution, the basis upon which this new devolved framework is conceptualized and elaborated in the subsequent sections. The two chapters 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 as a mechanism for decision making. Chapter Four discusses the levels and units of governance within the forty-seven (47) counties. They found the place of urban areas within county governments while 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. Box 2-1: Operationalizing Shared It proposes the framework for effective Institutions and efficient functional and competency Shared composition of the assignment. Chapter Seven makes a case institutions to secure independence Approval of key office bearers by for integrated development planning in both houses of Parliament the county governments and the linkages Operating mechanisms to national level planning. It identifies the incorporating consultation mechanisms with both levels of instruments and mechanisms that need to government be put in place to achieve this critical building Decentralization of operations block for devolved government. Chapter Eight dwells on the intergovernmental relations and dispute resolution framework so critical for effective performance of the devolved government. Chapter Nine provides for conditions under which the national government may intervene or suspend county government. Chapter Ten discusses, emphasizes and elaborates on the framework of effective citizen 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 Eleven brings to the fore the importance of public communication and civic education for enhancing the implementation of devolved government. Chapter Twelve discusses the imperatives of building an 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 Thirteen focuses on county financial resources and their management structures and mechanisms, responsive to the status of counties and the imperatives of the Constitution of Kenya. Chapter Fourteen proposes a transition programme for the establishment of devolved government. 9
Chapte
Context and Constitutional Foundations of Devolved Government in Kenya

2.1
Introduction
enyas struggle for constitutional reforms has its roots in the desire to correct deficiencies in its post-independence governance framework which was premised upon the highly centralised system started in the colonial days. The main objective of this struggle has been the restoration of power to the people to manage their affairs, particularly, in matters of local development. The postindependence governance framework was characterised by poor governance as evidenced by corruption, ethnic conflict, insecurity, political uncertainty; and poverty. Some of the negative outcomes include the alienation of large portions of society from the mainstream economy; wasteful public investments; massive poverty and ethnic animosity; and cut-throat political competition and intolerance. The post-election crisis was largely due to weaknesses in key institutions of governance including the constitutional framework, Judiciary, police, Executive, the electoral system, and Parliament. The weaknesses of these institutions can be traced back to the recentralization of power in the executive through post-independence constitutional and legal amendments. This resulted in monopolisation of power as opposition political parties, were initially frustrated and eventually outlawed. A small politicalcum-economic elite that accumulated both political control and economic wealth to protect the centralised system captured state power. Democratic advancement was stifled as the governance of the country drifted from constitutional rule to personal rule. The national goals of fighting poverty disease and ignorance, which had been set at independence, were distorted.
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2.2
The Centralized Colonial State
Discriminatory development in Kenya has its origin in the exclusive colonial system which was primarily established to serve the interests of the minority white community. The system did not allow representation for the majority Africans in the Legislative Council. The exclusion of Africans was wrongly premised on the argument that they could not be able to articulate their issues and, also, did not understand their best interests. The first African to the Legislative Council was only nominated in 1944. Power was centralized in the Governor who represented the imperial government. There was no separation of powers as the Executive exercised immense power over both the Legislature and the Judiciary. . The Governor was president of both the Executive and the Legislative Council and was supported by a powerful administrative system, namely, the provincial administration. The system was based on central command and control. The economy of the colonial state was organized and managed along racial lines and geared towards exploiting the Africans for the benefit of the Colonial State. Through legislation, including the Crown Lands Ordinances (1902 and 1915), Africans were deprived of most of their productive land which was allocated to the white settlers. Africans were restricted to occupying marginal land reserved for them known as African reserves designed as reservoirs for cheap labour extracted through coercion by way of legislation and taxation. Africans were reduced to squatters, a problem that has persisted to date. Various policies and legislation were developed to give whites economic advantage and undermine the non white economy. For example, non-whites were not allowed to grow certain crops including coffee. Marketing of produce was highly controlled by the state. Through policy and legislative measures, therefore, the State determined the pace of economic development of the areas occupied by Whites and Africans. Over time, this created regional economic disparities that persist to this day. For about seventy years, the colonial government and its officials abused human rights with impunity. They engaged in forced labour; communal punishment; extra-judicial killings (of those who resisted colonial rule); detention without trial; rape, war crimes and the grabbing of African land for white settlement, among other violations. The independence struggle was informed by the need to confront and address these wrongs.
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2.2.1 The Post-Independence Quasi-Federal System

At independence Kenya adopted a fairly progressive liberal Constitution. Its 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 system. The Constitution created regions (Majimbo) with extensive political and development powers for delivery of public services. The powers of the regions were protected by various mechanisms including entrenched constitutional provisions, a Senate and exclusive assignment of functions and sources of funding. This quasi-federal system was achieved as a compromise between the centralist KANU and the federalist KADU. The compromise was preceded by protracted negotiations between the two parties that primarily clustered ethnic communities into big and small tribes. The constitutional compromise encompassed guarantees of regional autonomy and a Bill of Rights that protected property and the right of the individual to reside and work anywhere in the Republic. The Bill of Rights was also influenced by the need to secure the future of the British settlers that would remain in the ex-colony after independence. The regions were constitutionally empowered to make laws through an elected regional assembly. The regional assemblies had legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, and community development, housing, and health services. There was, also, a system of local government to facilitate popular participation in governance. The design of the independence constitution was informed by the experience and the desire to deconstruct the colonial state that had systematically discriminated against non-whites; divided society along racial and ethnic lines; impoverished large sections of the population; and denied the people, particularly the Africans, a chance to be responsible for their affairs. Regional autonomy sought to empower the local communities to be responsible for local governance. This was to be achieved through devolution of political and economic power to the regions. It was envisaged that the fears of the ethnically minority communities would be assuaged. Unfortunately, the quasi federal independence constitution was not allowed to consolidate and flourish. Within one year of independence, the process of amending the constitution to recentralize power commenced, resulting in a highly centralized and personalized rule.
2.2.2 Perpetuation of the Centralized State

Between 1963 and 1990, the independence Constitution was amended through more than 30 constitutional amendments. Historical analysis points out that these
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were primarily geared towards securing monopolization of power by the ruling party and the centralization of power around the Executive personified by the President. During this period, political competition was muzzled and civil society withered as it was increasingly intimidated, co-opted or banned by the state. Over time, the state occupied the entire public sphere crowding out both political actors and the civil society. Apart from political and social control, the state also restated the discriminatory policies of colonial government. It favoured certain sectors of the economy while undermining others through policy and legislation. In keeping with dominant centralized development model of the time, the state situated itself as the main agent of development. The policy was expressed in the first national economic blueprint; the Sessional Paper No.10 of 1965. It advocated for the focusing of development and investment on the high potential areas on the understanding that the economy would experience rapid growth due to the higher returns on investment in those areas. The policy zoned the country into high, medium and low potential areas. The zoning was primarily based on the needs of the settler economy which were anchored on the British needs at the time. Though well meaning, the policy on centralized planning reinforced the marginalization of the areas that had suffered neglect during the colonial period. There was no appreciation of the need to correct the imbalances created by the discriminatory practices of the colonial government. The independence government also adopted the policy of Africanisation of commercial enterprises in order to give Africans the commanding heights of the economy. This policy was founded on the understanding that political independence without economic power was meaningless. It sought to give Africans a foothold in the national economy which they had been denied by years of discriminative colonial policies and legislation. This well-intended policy was unfortunately subverted by political biases that existed at the time. The political elite ensured that the Africanised businesses went only to those in the patronage system of friends, colleagues or ethnic political supporters. From 1964 to 1973, economic growth performance was very impressive, achieving rates in excess of 6 percent per annum. During this period, industry expanded annually by about 10 percent with the Import Substitution strategy yielding good results. Agriculture on the other hand, grew by about 5 percent per annum, showing positive responses to expansion of African cash crop farming and increases in extension services. However, the benefits of this growth and improved performance in the economy were not equitably shared as anticipated under Sessional Paper No. 10 of 1965. The instruments for ensuring such distribution, the regional governments and other measures, were removed, curtailed or ignored. Thus, in its execution Sessional Paper No. 10 of 1965 had the effect of creating an economic elite and also compounded 13
economic differences between the regions. This elite, sought to exercise unlimited control over state resources through centralizing and monopolising power. This allowed them to dispense patronage to both individuals and ethnic communities and it inevitably led to massive abuses of power.
2.2.3 The Problem of Centralization

The capture of the state by a small political elite led to control of both political and economic power in the entire country. Therefore, the concept of republican government as an instrument in the service of the welfare of the people became extinct. Government ceased to serve the people and became the property of a few. Elective and appointive positions became, not the means to serve the people, but rather, avenues for amassing personal wealth. The notion of servant leadership disappeared as personal aggrandizement, corruption, mismanagement and plunder of public resources nursed by political patronage became the norm. Allocation of resources and development opportunities was done on the basis of political patronage instead of objective criteria and the most important person in this process was the President. This excluded people from government services creating a feeling of marginalization in many parts of the country. Centralisation led to strong feeling of exclusions, birthing and sustaining the perception that one had to have one of their own in a key political public office to access government services and opportunities. Because of this, political and public service office became intensely valued prizes. Indeed, the presidency became the ultimate price. In excluding local people from the making of decisions that affected their lives, centralisation failed to facilitate local solutions to local problems. This occasioned wastage of resources and misguided priorities. Frustrations arising from the centralized system laid the ground for the struggle for the democratization reforms of the 1990s and for the CoK 2010. This struggle forced the state to introduce various strategies for addressing the problems of the centralized state, including muted efforts at fiscal decentralisation. The adoption of the CoK 2010 aims at fundamentally altering the governance framework through far reaching reforms. Of these, devolution of political power, responsibilities and resources have the most profound and transformative impact on governance and management of resources. If faithfully implemented, the CoK 2010 in general, and devolution in particular, should lead to revolutionary transformation of Kenya and facilitate achievement of Kenya Vision 2030. Devolution, however, is the most complex and the least understood aspect of the CoK 2010. It permeates all spheres of society and organs of government. Effective implementation of devolution,
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therefore, calls for recognition of this fact. It requires a comprehensive and wellcoordinated government strategy based on consultation and cooperation between the various arms and departments of government. It is a serious misjudgement for any government entity to think or assume that they have nothing to do with devolution. Therefore, devolution in the Kenyan context can only be best understood within the context of a clear appreciation of the concept of a constitution. This process must begin with the understanding of the concept of a constitution and its role in governance.
2.3
Concept of a Constitution
A constitution is the instrument or law that organizes and manages governance and state power. It defines, distributes and constrains the use of state power and provides a power map for the construction of the society and the running of the affairs of state. There are two approaches to the organization of governance and management of state power. The first is the single-dimensional approach which follows a single horizontal dimension in its organization and management of governance and state power. It produces a centralized system and structure of government and is based on centralization and concentration of power. The second is the multidimensional approach which organizes and manages governance as well as state power along multiple lines. It defines, distributes and constrains the use of state power along multiple lines. It combines vertical and horizontal dimensions and forms the foundation of devolved systems and structures of government. It is founded upon the concept of decentralization and devolution of power. According to Article 10(2)(a) of the Constitution of Kenya, 2010, devolution and sharing of power were identified as values and principles that would guide our governance system. This meant that Kenyans settled for a multi-dimensional approach to the organization and management of governance and state power, implying a devolved system of government.
2.4
The Concept and Theory of Devolution
2.4.1 Constitution and its Role in Governance

Building on the multi-dimensional approach the organisation and management of state power, a devolved system involves the creation of two or more levels of government that are 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, with the functions and resources to be used for their discharge being set out and defined by the constitution. The system combines self-governance and
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shared governance at the local and national levels, respectively. The essence of this is that at the local level the people are allowed a certain flexibility within which they can make decisions that are unique to themselves and their locality. They are allowed a measure of self-governance at this level but at the national level, decision-making is shared. The people of Kenya organized in their different counties share in the making of the decisions that affect the whole country and the whole population. Therefore, the laws, which are made at the national level, are applicable to and enforceable in the whole country. Because of this, there must as of necessity be some shared institutions through which shared decisions can be made. Indeed, the entire national government is structured to provide infrastructure through which the people of Kenya, organised through the 47 counties, are able to share in the making of decisions that affect the whole country. Most of the institutions at the national level of government provide infrastructure for cooperation, consultation and consensus building in the process of making decision on what constitutes the common good of the people of Kenya. Institutions, however, can also be perceived as shared not because they participate in shared decision-making but because they serve and render services to both levels of government. Some of the shared institutions are not necessarily national government institutions but independent state organs such as commissions. One of the most important shared institutions in the architecture and design of a good devolved system of government is the Bicameral Parliament. One of the houses is conceptualised and structured in a manner that draws membership from electoral units determined more on the basis of population. But because this can easily tilt the scales in favour of the counties that have higher populations and thereby undermine effective shared decision making; the other house is conceptualised and structured in a manner that ensures a measure of equality of the counties in decision making. This second house is conceptualized as representing the counties with the votes belonging to the counties rather than the individual senators. The CoK 2010 recognizes this and provides for a Senate in which the 47 counties are equal in terms of their participation in decision making in matters that concern counties although some counties will have more members in the sense of having more votes. After elections, such Senators shall be collapsed into a single delegation representing the county and having only one vote just like the other counties that may have few Senators. Article 123(1) of the constitution provides that upon election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation for purposes of voting under clause (4), with the member elected under Article 98(1)(a) being the head of the delegation. On the other hand, Article 123(4) provides that except as provided otherwise in this Constitution, in any matter in the Senate affecting counties 16
a)
each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or, in the absence of the head of delegation, by another member of the delegation designated by the head of the delegation; the person who votes on behalf of the delegation shall determine whether or not to vote in support of, or against, the matter, after consulting the other members of the delegation; and the matter is carried only if it is supported by a majority of all the delegations
b)
c)
The design gives the Senate a very fundamental role in the entire system of devolution making it part and parcel of the devolution system.
2.4.2 The Role of the Senate

The scrutiny of the Senate is necessary for two very important reasons. First and foremost, it is important to have a proper conceptualization of the Senate as part and parcel of the devolution system and to clearly understand its role, if implementation of devolution is to be properly and successfully undertaken. Secondly, arising from the information gathered during the validation of the Interim Report, there are those who hold the misleading view that, as conceptualized and designed, the Senate is a very weak institution playing a very minimal- almost ceremonial role. They even view it as being the lower house as compared to the National Assembly. A close analysis of the constitutional provisions on Parliament and its two houses reveals evidence to the contrary. Article 93 of the constitution establishes a bicameral Parliament comprised of the National Assembly and the Senate. In setting out and defining the roles of Parliament and the two houses of Parliament, articles 94, 95 and 96 indicate that parliament is conceptualized as a shared institution through which the people of Kenya organized in their separate counties share in legislation making at the national level. The National Assembly is conceptualized and designed as representing the broad national interests and the people of Kenya generally. On the other hand, the Senate is conceptualized and designed as representing the counties, their governments and interests. Article 96(1) provides in this regard that the Senate represents the counties, and serves to protect the interests of the counties and their governments. Sub-article (2) adds the Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 t0 113. Sub-article (3) confers upon the Senate the power to determine the allocation of national revenue among counties, as provided in Article 217 and the power of oversight over the use of resources by the counties. 17
The extent of the legislative role of the Senate can only be fully appreciated if the meaning of the phrase concerning counties, is examined. Article 110 of the constitution defines bills concerning counties as being bills which contain provisions that affect the functions and powers of the county governments as set out in the fourth schedule; bills which relate to the election of members of the county assembly or county executive; and bills referred to in chapter twelve as affecting the finances of the county governments. This is a very broad definition which creates room for the Senate to participate in the passing of bills in the exclusive functional areas of the national level of government for as long as it can be shown that such bills have provisions affecting the functional areas of the county governments. For instance, it may be argued that although security and policing are national functions, how security and policing services are provided affects how county governments discharge their agriculture functions. As such, a bill on security and policing would be a bill concerning counties. Similarly, it may be argued that training in the fields of agriculture and health to produce agricultural extension officers, livestock extension officer and nurses affects how counties discharge their functions in these areas. Bills in these areas would therefore be bills concerning counties. With a good Speaker, the Senate should be able to find something that affects the functions of the counties in almost every bill that comes to Parliament, making it a bill that must be considered and passed by both houses. In the area of finances, a distinction must be drawn between the role of the senate in the determination of the five/ three year formula for the allocation of revenue among counties as provided for by articles 96(3) and 217; and the role of the Senate in the annual vertical and horizontal sharing of revenue between national and county levels of government and among the counties, respectively, as provided for by articles 96(2) and 218. Article 96(3) confers powers and functions on the Senate in the field of horizontal allocation of revenues among counties. The Senate is conferred with power to determine the allocation of national revenue among counties, as provided in article 217, and also power to exercise oversight over national revenue allocated to the county governments. At a first glance and read a lone, article 96(3) may mislead one to think that it precludes the Senate from the annual vertical sharing of revenue between national and county levels of government. But read together with article 217 the article yields a different meaning. Article 217 which, stems from article 96(3), only deals with the determination of the five year and or three year formula for the sharing of revenue among the counties for that period. The article does not deal with annual division of revenue and annual allocation of revenue and does not exclude the Senate from playing a role. Articles 96(3) and 217 therefore only confer exclusive powers and functions on the Senate to determine the five year and or three year formula for allocation among counties, of the share of revenue raised nationally allocated to the county level of government. 18
The role of the Senate in the vertical and horizontal sharing of revenue is provided for by article 218 as read together with article 96(2). Article 218 provides for both the Division of Revenue Bill and the County Allocation of Revenue Bill, which are required to be introduced in Parliament at least two months before the end of each financial year. It is notable that the article provides for the introduction of the two bills in Parliament and not just in one of the two houses of Parliament. This may mean that the bills should be introduced and processed in parliament as a joint seating of the two houses or that they should be introduced and processed in each of the two houses of parliament separately. Furthermore, these being bills to be passed into Acts of Parliament, they must be read within the context of the provisions of article 96(2) which requires that bills concerning counties be considered, debated and approved by the Senate. Bills which deal with the equitable sharing of revenue both vertically and horizontally within the meaning of articles 202, 203 and 204 are definitely bills that affect the functions of county governments and therefore, bills concerning counties in whose consideration, debate and approval the Senate has a role to play. In addition to these roles, article 96(4), confers a very important role in the process of determining impeachment proceedings against the President. The Senate is empowered to participate in the oversight of State officers by considering and determining resolutions to remove from office the President or Deputy President. When all these is added to the fact that majority of the Senators are to be elected directly by the voters of geographic constituencies, which are far larger than those which elect members of the National Assembly, one comes to the conclusion that the Senate created by the constitution plays not only a very important role in devolution but that it is a powerful house that could easily develop into the upper and superior house as compared to the National Assembly. Quite apart from the bicameral parliament the constitution of Kenya is designed with a number of other institutions which are conceptualised as shared in nature. These include independent commissions and offices.
2.4.3 Shared Institutions

Quite apart from the Bicameral Parliament, the CoK 2010 establishes other shared institutions. These include independent commissions and offices. Some of the most important shared institutions are indicated in Table 2.1.
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Table 2.1: Shared Institutions in the Constitution of Kenya 2010

Constitutional Provision Article 93 Institution Parliament Commission on Revenue Allocation Ethics and Anti-Corruption Commission Remarks Comprises the National Assembly and Senate. Provides a forum through which counties share in legislation making at the national level Recommends the vertical and horizontal sharing of revenue raised nationally Enforces the constitutional integrity standards at both levels of government and in all counties.
Article 215 Article 79
Article 59 Article 67 Article 233
Human Rights and Equality Enforces human rights at both levels of Commission government and in all counties. The National Land Commission Public Service Commission Salaries and Remuneration Commission Manages public land at both levels of government and in all counties. In addition to its duties to national government, hears appeals of public servants of all county governments. Sets salaries for certain categories of public servants at both levels of government and recommends salaries for other categories of public servants at both levels of government and in all counties. Manages elections at both levels of government and in all counties Controls expenditure by both levels of government and in all counties. Audits and reports on the accounts of both levels of government and in all counties.
Article 230
Article 88
The Independent Electoral and Boundaries Commission The Controller of Budget The Auditor General
Article 228 Article 229
The operationalization of this concept of shared governance ought to ensure that the national government as infrastructure for shared governance and all other shared institutions are not captured by sectarian interests that make them serve the interests of a few counties or communities. Granted that the top leadership of national government may come from a particular community and county, national government must not become the property of only one community, county or group of communities of counties. Even the other shared independent state organs must not fall under the capture of a few. Both national government and independent state organs must serve the whole country, all counties and the all the people of Kenya and must not be unduly controlled by only one county or community or a group of counties or communities to the exclusion of others. Their organization and discharge of functions should be decentralized to ensure that their services are accessible to
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all, in terms of Articles 6 and 174 of the constitution. These needs should inform the development of policy, legal and institutional infrastructure for intergovernmental relations.
2.4.4 The Value Foundations of the Constitution

In addition, the constitutional value foundations upon which Kenyans want to base their governance system must inform the implementation of the devolved system. The CoK 2010 is founded on a very strong value system. It seeks to identify, and establish certain values as the foundation of the governance system. These values, it is expected, should inform and lead to a system of good governance at both the national and county levels of government. Various chapters and articles of the constitution put in place a value system providing a framework within which the governance institutions are expected to operate. One of the most important values which runs through and must inform the entire governance system is the concept of government as an instrument in the service of the welfare of the people. This value stems from the concept of a republican system of governance. It refers to a system of government meant for the common good. In recent times, James Madison in his Federalist paper No. 39 defined republicanism as a system of government in which, all authority to govern belongs to and derives from the people directly or indirectly. Those administering that authority do so at the pleasure of the people, for a limited period of time and subject to their good behaviour. Republican governance is representative in nature and demands servant leadership that does not usurp the power of the people and use it for personal aggrandizement, but instead focuses on service to the welfare of the people. The authority and power of the people cannot be used to impoverish and destroy the people but to serve their welfare. Because governance is representative, the challenge for contemporary constitution making is how to secure a leadership of integrity, which focuses all its efforts on serving the welfare of the people, and avoids conflict between personal and public interests. Kenyans, through Article 4 of the CoK 2010, adopted republicanism as a key value foundation. In several other articles, the various other aspects of the doctrine are captured. First, the CoK 2010 recognizes the sovereignty of the people as the source of all authority to govern. Second, government is established and instituted by the people to serve their welfare. Third, those to whom authority of government is delegated do so at the pleasure of the people; for a limited period of time; and subject to their good behaviour. Fourth, openness, transparency, and accountability as opposed to secrecy in governance are central. Fifth, leadership ought to be based on
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the principles of integrity and service to the people. It is for this reason that Article 35 of the Constitution of Kenya makes provision for a right of access to information held by the state. Similarly, Article 211(2) obligates the Cabinet Secretary responsible for Finance to cause to be tabled in Parliament information about the level of public indebtedness whenever the house so resolves.
2.5
Kenyas Unique Form of Devolution
2.5.1 Cooperative System of Devolved Government

Devolution comes in various forms depending on the context of each country. Indeed Kenya has adopted a form that is unique to itself. It is based on Article 6(2) which describes the governments at the two levels as being distinct and inter-dependent and which conduct their mutual relations on the basis of consultation and cooperation. This is not based on the principle of absolute autonomy but instead, on that of interdependence and cooperation. The system combines a measure of Box 2-2: The Kenyan Form of Devolution autonomy and inter-dependence Creates system that combines a measure of leading to a Cooperative System of autonomy and inter-dependence leading to a Devolved Government. Cooperative Cooperative System of Devolved Government devolved government is founded Assigns each level of Government functions upon three relational principles; - exclusive, concurrent as per Article 186 namely, the principle of distinctness; and Schedule 4 of the Constitution thus establishing development mandates for each the principle of inter-dependence; level of government and the principle of consultation and Under Article 189(1)(a), demands that both cooperation.
levels work together in a manner that does not damage the integrity - functional and institutional - of the other level clear intergovernmental relations Has a constitutionally entrenched system of intervention and dispute resolution and management Clear provisions on resource sharing and management Constitutional requirement for citizen participation
The two levels of government are and should be distinct in their constitutional functions, institutions, resources and legal frameworks. They are coordinate and not subordinate to each other. None is a mere agent of the other and neither can be abolished by the other. Distinctness in this sense rules out the concept of hierarchy as a relational principle. In effect, the levels of government must have the freedom to make decisions in
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the functional areas assigned to them by the CoK 2010 without undue interference from the other. On the other hand, it should be made clear that distinctness is not aimed at reintroducing the independence Majimbo system. Indeed the principle of interdependence requires a certain measure of mutual respect between the two levels of government. Article 189(1)(a) in this regard requires government at either level to 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 institutions of government at the other level and in the case of county government, within the county level. The two levels of government are also inter-dependent since devolution combines self-government at the local level and shared government at the national level. Inter-dependence is necessitated by the facts 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. In the distribution of functions, quite a number of functions are concurrent in nature; and others are assigned on the basis of national government formulating national policy and setting national standards while the county level is assigned the implementation functions. Policy formulation and national standard setting functions of national government include a monitoring and evaluation aspect that creates a limited measure of oversight. Such oversight cannot therefore be intrusive, but rather facilitative. Inter-dependence then becomes the foundation of the concept of cooperative government. According to Articles 6(2) and 189(1)(b) and (c), inter-dependence requires that the two levels of government not only cooperate with, assist, support and consult each other and, as appropriate, implement the legislation of the other level of government; but also liaise with each other for the purposes of exchanging information, coordinating policies and administration and enhancing policy. At the relational level, cooperative government therefore requires that there be intergovernmental dialogue on the basis of consultation and cooperation which may even lead to the setting up of joint committees and joint authorities. Cooperative devolved government requires that as a country, we move away from our usual adversarial approach to issues and embrace a system of consultation, negotiation and consensus building in running of state affairs. This ties in hand-in-glove with the expectations for a shift to issue based politics espoused under Vision 2030. Both vertical and horizontal intergovernmental relationships between national and county levels of government; and among county governments respectively, should be based on and informed by these principles of cooperative government.
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2.5.2 Objects and Principles of Devolution in Kenya

Article 174 of the Constitution of Kenya 2010 identifies the objects of devolved government as the promotion of democratic and accountable exercise of power; fostering of national unity by recognizing diversity; 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; recognizing of the right of communities to manage their own affairs and to further their development; protection and promotion of the interests and rights of minorities and marginalized communities; promotion of social and economic development and the provision of proximate, easily accessible services throughout Kenya; 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 enhancement of checks and balances and the separation of powers. Article 175 sets out the guiding principles of devolved governments. The county governments should be based on democratic principles and separation of powers; be availed reliable sources of revenue to enable them to govern and deliver services effectively; and must ensure that each of the two genders have at least a third of the members of representative bodies in the county. These objects and principles reinforce the reasons why the Kenyan people sought a new dispensation. In them, the citizens made it clear that devolved government in exercising its functions, in relating with the national government and its citizens must adhere to these objects and principles. Therefore, the structures and instruments of county government must mainstream these tenets within them. The institutional organisational cultures that manifest themselves in counties must be reflective. More critically, these must also be mirrored by national government.
2.5.3 The Architecture and Design of Devolution in Kenya

The success of devolution depends on a proper architecture and design of the system. A properly designed system will have a number of characteristics. The constitution must create two or more levels of government with each having sovereignty and directly impacting upon its citizens. The Kenyan system has settled for two levels of government. Article 176(2) contemplates further decentralisation below the county government, while Article 184 provides for national legislation to cover urban areas and cities. The CoK 2010 divides the country into a number of geographic units at the sub-national level. Article 6 (1) and Schedule 1 divide the territory of Kenya into 47 counties. A
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formal constitutional distribution of governance and development functions of each level of government must be clearly delineated ensuring some autonomy for each. In the assignment of functions, the principles of subsidiarity, transferability of functions and the three categories of functions; namely, the exclusive, concurrent and residual functions are observed. Article 186 and Schedule 4 of the CoK 2010 assign functions to the two levels of government. Constitutional provisions setting out clear rules for the allocation of resources among the levels of government are prerequisites. This ensures that each level of government has sufficient resources to enable it discharge its responsibilities. The main operational principle in this respect is that resources must follow and match responsibilities. Articles 190, 201, 202, 203, 204, 209, 212, and 213 among others in the CoK 2010 provide for how each of the two levels of government gets their proportion of resources. The constitution creating the devolved system must be supreme and its amendment must be subject to approval by the levels of government. Articles 255, 256 and 257 of the CoK 2010 provide for an amendment process that requires the approval by the two houses of Parliament. Some amendments, in fact, require approval by county assemblies while others require a referendum vote. A constitutionally entrenched system of cooperative government with constitutional processes and institutions for facilitation of intergovernmental cooperation and collaboration for the areas where governmental responsibilities are shared or inevitably overlap is required. The CoK 2010 provides for this through Articles 6 and Article 189 amongst others. A constitutionally entrenched system for dispute management and resolution among the levels of government is a general feature. Articles 159, 163,189,190, 191,192, 225 amongst others provide for dispute management and resolution to ensure harmonious relations between the two levels of government.
2.6
Conclusion
The CoK 2010 affirms one nation, organised at two levels of cooperative government, with distinct, but interdependent governments. This by and large implies that the relations between the two levels will have to respond to these imperatives. The being the unique form of devolution that Kenya has adopted, the following chapters of this policy paper discuss in greater details the architecture, design and operation of devolution as envisaged in the CoK 2010. They make policy recommendations and legislative proposals on how best to implement the system.
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Chapte
The Promise of Developmental Devolved Government

3.1 Introduction
Kenyas historical context and its legacy have left the nation with major developmental challenges. These challenges clearly portend an urgent need for an intense shift towards a focus on development. No one is more aware of this need than the Box 3.1: Citizens Expectations of citizens as was discerned from the county Devolved Government visit submissions (see Box 2.1). Citizens 1. Devolved government should lead across the country made it clear that the to national renewal mission for the counties should be that 2. Nation built on equity and equality for all Kenyans of achieving positive and affirmative 3. An inclusive nation where everyone development outcomes for the citizens. feels they belong These include job creation, harnessing 4. Equal opportunity for all local potential, integrating the counties 5. Design of policies that reduce with the nation, amongst others. County inequality in the country governments, therefore, will have to be 6. Ensure positive relations between primed to focus on development, hence the people and their leaders the Concept of Developmental Devolved 7. Reduce the adverse effects of politics on governance Government. In these challenges and in 8. Bring the government closer to the the faithful implementation of devolution people lies the seed for national rebirth.
9. Devolved governments as a platform for accessing national resources.
Indeed, the adoption of CoK 2010 and devolution, therefore, promises development to the people. The Constitution decrees a fundamental shift in the philosophy of governance. It adopts
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Figure 3.1: Kenyas Projected Population Growth Pattern
a philosophy founded on solidarity, redistribution and a development framework informed by the concept of financial equalization. This demands that we identify our priorities well and focus on putting infrastructure in the previously neglected areas, which now hold the potential for our future growth. The generation of more wealth and expansion of the common basket to be shared lies more in the exploitation of the potential of the previously neglected areas. Concurrently, the areas where potential for growth has been encouraged and exploited should be incentivized to realize their full potentials. According to the 2009 Population and Housing Census, Kenyas population was 38.6 million with a sex ratio of about 1:1, and an inter-censal growth rate of 2.6 percent. The population distribution shows that 53.6 percent of the total population is aged 15-64 years; 43.0 percent is aged below 15 years and 3.4 percent is above 64 years. The Census data also shows that Kenya is also rapidly urbanising. Figure 3.1 shows that by 2030, close to 70 percent of the Kenyan population will be living in urban areas. The population data for Kenya therefore clearly shows that there is a momentous demographic transition taking place in Kenya. This transition is characterised by a huge rise in the population size, and a youthful and productive population, that is highly urbanised. It is also accompanied by a significant rural population.
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Lessons from Latin America suggest that, the relative youth of its population, make the transformation of its urban economies urgent if Latin America is to positively reap from its demographic dividend. This it can only do if its economies generate high-productivity jobs for its large, young and urbanised workforce. The same situation applies for Kenya. Developmental devolved government must yield functional development for the estimated young and urbanising 64 million Kenyans in the year 2030, taking into account the rural population. By this it is expected that the era where hospitals, schools and other facilities were built, without the requisite operational resources to enable their utilization must come to an end. There must be an intimate relationship between all the parameters and actors necessary for effective access to and utilisation of public services. It is thus expected that developmental devolved government will and must actually lead to outcomes anticipated in CoK 2010 and Vision 2030 and expected by the citizens.
Figure 32: Building Blocks for Cooperative Competitive Counties in Kenya
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3.2
Building Blocks for Cooperative and Competitive Counties
Developmental devolved government must focus on delivering public services that allow citizens to function at their full potential. This means that counties and their respective governments must become arenas where development discourse is the main thing. In doing this, counties will compete and cooperate with and between themselves if they are to achieve the desired development outcomes. As is illustrated in Figure 3.2 the foundations of developmental devolved government will be to commit to incorporating citizen participation in all developmental initiatives at the county level. Counties will have to cooperate in order to grow local economies and position them to be competitive locally and/or regionally as appropriate. They will also have to focus on building and maintaining quality places, promoting inclusive growth and generally managing counties for prosperity. Prosperity of the new counties is dependent on enhancing access to opportunity to all citizens while ensuring adequate environmental protection. As we struggle to attain and maintain economic competitiveness, the constraining effect of administrative boundaries becomes a matter of concern as Kenya struggles to realize development through the 47 counties. As earlier discussed, counties will have to respond to Kenyas urbanisation. Globally, the evidence available shows that the preponderance of economic growth will come from such urban areas. In their report, Urban World: Mapping the economic power of cities , McKinsey Global Institute report that: Half of the worlds population already lives in cities, generating more than 80 per cent of global GDP today. Only 600 urban centres, with a fifth of the worlds population, generate 60 percent of global GDP. In 2025, we still expect 600 cities to account for 60 percent of worldwide GDP but the cities wouldnt be the same. Over the next 15 years, the makeup of the group of top 600 cities will change as the centre of gravity of the urban world moves south and even more decisively, east. Companies trying to identify the most promising growth opportunities need to be able to map this movement and spot the individual cities where their businesses are most likely to thrive. It is therefore imperative that counties factor in measures to influence the development of urban areas as engines of economic growth. In this process, care should be taken to ensure that there is effective linkage between urban areas and the rural hinterlands, where many Kenyans will still reside. This Sessional Paper therefore recommends that an overarching National Urban Growth and Development Policy Framework
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(NUGDPF) be expeditiously put in place. This NUGDPF must seek to rationalise and coordinate urban development issues within and between counties, but also across the whole nation. Its key concern should be to align service delivery to the desired developmental outcomes, focusing on ensuring urban places that are competitive, have quality places, are well governed and facilitate citizen participation.
3.2.1 Growing and Sustaining County Cooperative Competitiveness

The ability of the counties to create wealth and enhance welfare outcomes for their citizens will depend on how well they are able to leverage their endowments, within the national, regional and global operating contexts. Attracting jobs that improve welfare for citizens will not be achieved through lone ranger efforts. Experience elsewhere suggests that to prosper, Kenya and its counties must leverage four key assets innovation, human capital, infrastructure and quality places. Given the level of inequality between and within counties as well as close kinship linkages, it is feasible to consider competitiveness and complementarities within clear cooperative and collaborative frameworks. Such an arrangement responds to application of the cluster concept. The adoption of the cluster approach to industrialization, value addition for agriculture and industry and provision of common and shared services requires that counties must of necessity work together. Counties will have to adopt spatial forms that will be most appropriate to their development needs. Literature identifies a number of spatial forms, including development corridors (in which settlements take a linear form); megacity-dominated clusters (in which expansion of a dominant megacity engulfs surrounding areas); sub-national regional clusters (in which no single settlement dominates development in the region); and trans-border clusters (in which adjacent settlements are located in different countries, but form a contiguous sphere of economic influence). This points to a more deliberate and focused application of integrated economic and spatial planning in counties specifically and the country generally.
3.2.2 Paradigm Shift in County Public 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 essential to the success of the counties. The imperatives of effective and efficient public service delivery include the need for effective, integrated economic and spatial planning; appropriate financing/funding mechanisms; sound service
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management practices; good governance; and monitoring and evaluation. A key prerequisite is definition of the appropriate service levels, including answering the question of whom the services should be provided to. In addition, the issue of what level of government will be responsible for which aspect of a public service function is pertinent. Global experience shows that allocation of resources must be informed by the assignment of functions following the principle that resources must follow and match functions. The recognition of the close nexus between service organisation and responsibility on the one hand, and public finance allocation on the other, is important. The key concerns should be efficiency, effectiveness and appropriate citizen participation.
3.2.3 Building and Maintaining Quality Places

Building quality places is a priority for the counties. The operative question is simple: why would a citizen, a visitor or investor choose one locality over another for investment and engagement? Literature shows that the quality of a place is a major ingredient to attracting the necessary human and other resources to achieve desired development outcomes. The United Kingdom government in its strategy for improving the quality of places has observed that places where people live have a profound effect on their quality of life and life chances. This takes effect in various ways such as crime and pollution levels, employment opportunities, social ties and opportunities for community engagement, and the range and quality of local services, transport links and green space. The quality of a place can then be understood as that subset of factors that affect peoples quality of life and life chances through the way the environment is planned, designed, developed and maintained. The demands of the CoK 2010 and the imperatives of a competitive economy, as well as the rapidly expanding population it will be important for counties to prioritize realization of quality places. As illustrated in Figure 3.3, Kenyas current population is heavily settled along a 200 km buffer zone along the Kenya-Uganda railway line in the region characterised by high rainfall. With the anticipated growth in the population, there will be immense pressure on the available land in this high rainfall region to provide for residential, commercial, industrial and environmental protection needs. It then becomes imperative to begin to think about the spatial forms that will yield the quality places needed including measures to open up the medium and low rainfall areas with appropriate physical, social and institutional infrastructure. Another challenge in this regard is the mobility pattern of the population, where the population in the major urban areas is largely male and youthful.
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Figure 3.3: The Developmental Challenge of Kenyas Population Dynamics
3.2.4 Managing Counties for Prosperity

The CoK 2010 has set out the broad structure for governance including some of the key principles to guide governance. In respect of local governance, the counties are the main, recognised form of government. However, the CoK 2010 in Articles 176 and 184 for further decentralization by the counties and for legislation has provisions for governance and management of urban areas and cities. In providing for the governance of urban areas and cities it is imperative that attention be paid to the very important economic growth role played by these units.
3.3
Conclusions
The CoK 2010 seeks to reverse the centralized non participatory governance paradigm by institutionalizing an embracing governance and leadership system based on integrity. It does this primarily by establishing an enabling normative framework. It provides for relevant governance institutions; checks and balances on the exercise of executive power; 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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Chapte
Units and Governance of Devolved Government

4.1
T
4.2
Introduction
his chapter discusses the Kenya design of devolution which has two levels, National and County governments, with a major focus on further decentralization highlighting units of County Governments and related governance. Apart from this introduction, the chapter begins with an overview of local governance highlighting the principles of local governance, and units of further decentralization. This is followed by a section discussing urban areas and cities as units of governance. The sub section presents the role of these areas in development, related context, classification, capital city and city counties, and conferring city status. The third sub section discusses the challenges of the 47 counties, highlighting structural overlaps, capacity building, cross county planning and economies of scale. The fourth sub-section pulls out policy and legal gaps and highlights policy options and recommendations, while the last sub section makes conclusions.
Local Governance
Governance debates revolve around centralization and decentralization highlighting both the advantages and disadvantages of each of the governance systems. While it has been acknowledged that experiences of decentralization irrespective of whether it takes a devolution or de-concentration form of decentralisation have not been very successful, there is consensus on potential benefits of decentralization, which include delivery of improved services nearer to those being served and improving accountability. Decentralisation, in particular devolution shifts points of service delivery from central government to lower levels of governments resulting in significant changes in budget allocations and nature of service delivery. It may be argued further that devolution provides a better opportunity for a meaningful form of local stakeholder participation as required by the Kenya Constitution 2010, than any 33
system of centralised administration. Therefore there must be a clear demonstration of a shift in participation to reflect this constitutional position.
4.2.1 Principles of Local Governance

Decentralisation, in particular devolution is assumed to facilitate cross sector development tailored to local needs. This principle is embedded in the Kenya Constitution 2010. However, its impact on development varies considerably depending on the circumstances of each case including the level of devolution, and the local government capacity to implement services among others (JICA 2008). Policies and regulations are important for ensuring orderly development including growth of cities and urban areas. However, considering different backgrounds, needs and governance structures of local governments, principles of subsidiarity and local responsiveness; economies of scale, externalities, equity, access and accountability, are useful for planning and assessing service delivery. The principle of subsidiarity requires decision making to be carried out by the level of government that is closest to individual citizens (EU 1992). It is an important principle for efficient allocation of resources, accountability, and responsiveness. Economies of scale occur where the per unit cost of producing particular service falls as the quantity of the service provided increases; while externalities occur in cases where a specific service in one local government jurisdiction spill over to residents of another jurisdiction. One way of dealing with such externality is to have an authority or agency large enough to include all those that benefit from a particular public service. An agency or authority has the benefit of internalising the externality and ensuring that all those who benefit pay for services. Examples of such services include energy, water, electricity supply, and public transport. Kenya has parastatals charged with regional development largely aligned to central government ministries. In the context of local government, in particular urban development, the Nairobi Metropolitan Development region, which doubles up as a Ministry provides a good example. The NMR includes 15 independent Local Authorities (LAs) and covers 32,000 square kilometres that substantially depend on the city of Nairobi for employment and social facilities. Optimising mobility and accessibility through effective transportation is one of the key goals of the ministry responsible for the region. A Nairobi metro 2030 Strategy has been developed to guide future economic growth, wealth creation, and quality of life improvements within the region (MNMR, 2008). This model can be replicated in other regions and will require consultation and collaboration among counties which require cross county services.
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Metropolitan areas do not always correspond with political boundaries and caging urban areas should be avoided and effective planning and management approaches embraced. Global experiences of metropolis provide some examples. In Sao Paolo, Brazil inter-governmental agreements ensure delivery of services such as, water, sewerage, refuse management; while in Australia state governments run large metropolitan cities such as Sydney. In Chicago in the USA, several municipalities and special departments cater for water, transport and other services. In Africa, the South African experience provides a good example of metropolitan approach. Cities of Cape Town, Durban and Johannesburg have embraced the principle of metropolitan regions and the City of Cape Town has a strategic and spatial planning and integration of physical and social investment across functional economic areas. Taking into consideration the existing inequalities within regions, including cities and urban areas, and the Constitutional principles in the Bill of Rights, the principle of equity has to be applied. This means either taxing the wealthier areas and using some of the proceeds to subsidise the poor, or shifting the redistributive function to national government if the equalization grant is not adequate. The principle of access and accountability gives prominence to local residents, including city and urban residents who should have access to governors in order to influence urban processes including policy formulation and design of service delivery. Ways of ensuring this include: public meetings, hearings, elections, and direct contacts with officials. Smaller government units provide the average citizen with greater `access to local decisions and as the levels of consolidation and concentration in local government system rise, so the capacity of the public to monitor policy makers behaviour falls (Boyne 1992). It therefore follows that the larger the local government, the more likely it is that special interest groups will dominate citizen participation (Robert 2001). Accountability follows the above principle on the basis that the more accessible elected leaders are to their constituents, the more easily they can be held to account for their actions. Furthermore, accountability requires a link between expenditure and revenue decisions the body making the decisions about how much to spend should be responsible for raising a large portion of the revenues it requires. This creates a major challenge in dealing with the principle of equity in the context of the County governments, including decentralised entities such as urban areas and cities. This requires both policy and legal provisions, both at the National and County Government level for addressing the issue. Effective governance entails promotion of institutional frameworks that facilitate efficient governance. This will ensure improved central and local government relations. In particular, distribution and exercise of powers or functions, based on subsidiarity is 35
a key element. Other aspects include: cooperation between public and private sectors, including informal sector and communities; cooperation between government and Non State Actors (NSA). While these global attributes of governance have been applied in Kenya, they have not been domesticated and translated into local policies and laws. Effective implementation of the Kenya Constitution 2010 requires review of laws and policies in line with the Constitution and embedding participation in all laws and service delivery processes.
4.2.2 Units of Governance

While devolution embedded in the Kenya Constitution 2010 is appreciated, the two levels, namely National and County pose a challenge due to lack of Constitutional protection for lower units of government. The lack of constitutional protection for the urban sector is particularly worrisome and has elicited debate among urban professionals and stakeholders. Some have argued that the constitution has not recognised the dynamic of urbanisation and therefore failed to provide for a third level of government, in keeping with global trend where cities are assigned functions and allocated resources. The Constitution provides for 47 County governments established under Section 6 (1) with further listing of counties under First Schedule. The status, functions, and powers of County Governments are provided for under Chapter 11, Article 176, and Fourth Schedule (part 2) Article 176 states that Every County Government shall decentralise its functions and provisions of its services to the extent that it is efficient and practicable to do so. While this provision allows Counties to decentralise to lower levels, the lower entities do not have Constitutional protection and can only operate under legislation which can be changed at the will of the county government. The decentralised units are not assigned any functions and are not revenue allocation centres. This implies that, they can only perform functions assigned to them by County governments or national governments through legislation. In exceptional cases where national government considers that a unit of further decentralisation is best placed to perform a particular function, for example in case of urban areas and cities, agreements have to be made with County governments in accordance to article 187. To examine and provide for further decentralisation, this sub section conceptualises further decentralisation in two categories, rural areas urban areas and cities as illustrated in Figure 4.1.
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Figure 4.1: Units of County Government
4.3
Rural Areas
Further decentralisation in rural areas can be visualised at three levels (units) below the County. The first level is the sub county and is expected to embrace constituencies, while the second and third levels will embrace wards and villages respectively. While the concepts of constituency, districts, locations and villages are used, this report acknowledges that these geographical regions in some cases overlap. For example, there are situations where constituency boundaries are the same as district boundaries, while in some cases they are not. The same case applies to wards and locations as well as villages and sub locations (Figure 4.1). For purpose of having harmony between political and administrative units and addressing overlaps, it is necessary to use constituencies, wards and villages as units for further decentralisation. The yet to be constituted Independent Electoral and Boundaries Commission (IEBC) will facilitate the determination of both constituencies and wards. Within the counties, there are pockets of population concentration in urban areas and cities. The latter are unique and have been recognised and provided for in the Constitution as discussed below.
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4.4
Urban Areas and Cities
The Constitution provides for Urban Areas and Cities in Article 184 (Box 4.1). The Constitutional provisions are embedded under the provision providing for devolved government. This implies that the cities and urban areas, except for the city of Nairobi and Mombasa will operate under County Governments. Both the City of Nairobi and Mombasa are also Counties and will directly relate to the national government, although Nairobi as a Capital City has a higher status. This raises questions on other urban areas which are currently not necessarily Counties and those that will in future grow and attain the status of Nairobi and Mombasa. While this paper cannot comprehensively provide direction on this matter, policy and legal provisions as stated in Article 184 of the Constitution will provide direction as suggested in the recommendation section of this chapter. The Fourth schedule of the Constitution gives County Governments some functions previously undertaken by LAs. This requires harmonization and decision on further decentralization of functions, including policy direction on whether decentralised units should be administrative, or both political and administrative. Public hearings across the country revealed citizens dissatisfaction with electoral politics, which implies that citizens prefer an administrative system which serves their interest, in particular service delivery with minimal politics.
4.4.1 Urban Areas Cities in Development

Urban areas are engines of economic growth and key to innovation, and any constitutional dispensation has to provide for them. They are places where workers, capital, institutions and infrastructure come together to provide the foundation for economic activity. The concentration or proximity of people and firms in cities increases social and economic interaction and results in exchange of ideas of people working in different fields in the same location. This exchange of ideas is essential for innovation. Cities are important local government entities, driving local economic development. Their liveability, including availability of skilled labour, infrastructure and services, is determined by the type of governance structure put in place. The governance structure, factors such as nature of services available, the revenue sources, size and location relative to state or country as a whole, the nature of intergovernmental relations, the history of cooperation with neighbouring municipalities determine whether a city attract population and innovation (Slack 2003). In 1999, in recognition of the importance of cities and urban areas, the UN-HABITAT launched a global campaign on urban governance in support of the implementation
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of Habitat agenda on sustainable human settlements in an urbanizing world. The campaign includes applying the principles of good governance in the context of challenges and realities facing cities, as well as acknowledging the diversity of cities in terms of individual histories, types of governance and their linkages across the globe. In Kenya, there has been rapid urbanization since 1948 when the first census was conducted. While in 1962, only one out of every twelve Kenyans lived in urban areas, by 1999, the urban population had reached 34.5 percent or approximately 10 million people. It is expected that by 2015, urbanization will have reached a national percentage of 44.5. This population is destined for a 54 per cent mark, or 23.6 million inhabitants in the year 2030. Overall, the rapid increase in the rate of urbanization has seen growth in the major urban centres of Kenya, and the country is expected to continue urbanising. The 2009 Kenya population census gives the total urban population to be 13,000 million. Given the rapid growth, Counties and urban areas need to plan their services taking into consideration the urban population growth. The urban sector in Kenya contributes about 70 per cent of the GDP, constituting a very significant part of the economy. The local authorities and especially the urban areas and cities are important engines of growth and centres of development providing cultural, educational, management, research, commerce and political services.
Box 4.1: Constitutional Provisions For Urban Areas And Cities 184 (1) National legislation shall provide for the governance and management of urban areas and cities and shall, in particular (a) Establish criteria for classifying areas as urban areas and cities, (b) Establish the principles of governance and management of urban areas and cities, and (c) Provide for participation by residents in the governance of urban areas and cities 2. National legislation contemplated in clause (1) may include mechanisms for identifying categories of urban areas and cities, and for their governance. 185 (2) provides that county assemblies may make laws that are necessary for, or incidental to, the effective performance of the functions and exercise of powers of the county government under the Fourth Schedule. 187 (2) provides that 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; and Constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule. 3. Article 200 (2) (a) provides that provision may be made with respect to the governance of the capital city, other cities and urban areas
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They also offer employment, health facilities and boost the countrys economy (UNHABITAT, 2004). For instance, the City of Nairobi produces 71.46 percent which is more than half of Kenyas GDP (CCN, website 2011). Urban growth in Kenya has not been managed by any policy, and both cities and urban areas have operated under the Local Government Act Cap 265. The Act provides a semi-autonomous status for LAs, with the central government wielding enormous powers over LAs without clarity on policy direction. This has retarded the development of LAs, and attempts to develop an urban policy and review the Local Government Act have been caught up in a new constitutional dispensation, requiring a fresh look in line with Constitutional provisions. During the writing of this report, a team led by the office of Deputy Prime Minister and Minister of Local Government had been constituted to develop an urban policy. A successful completion of this exercise is expected to provide policy direction on urban development which will not only be useful to the counties but to the entire country. Urban areas and cities in Kenya face a number of challenges, including outdated legal and regulatory framework, lack of urban development policy, inability to efficiently provide services and poor governance. Prior to 2003 when the National Rainbow Coalition (NARC) government took power, and began embracing New Public Management Reforms, many urban areas had reached a breaking point. They could hardly provide services as mandated under the LA Act Cap 265. Coverage level of services such as solid waste, health and housing were low and deplorable, with many unable to meet demand for a range of services. In spite of lack of policy on urban development, various policies and government strategies including the Vision 2030 acknowledge the importance of urban areas. These urban areas are part of local government system in Kenya and it is relevant to understand their context within Kenya.
4.4.2 Context of Cities and Urban Areas in Kenya

Cities and urban areas in Kenya have been operating under the Local Authority Act Cap 265, governing the 175 Local Authorities (LAs). The LAs fall under four categories, namely: City, Municipalities, Towns and County Councils. The latter two are largely rural in nature and provide minimal basic services such as markets, parks and gardens; sanitary inspection and refuse disposal; burial grounds and crematoria; fire services and brigade; public transport and social welfare services; basic environmental services; roads and drains, water supply, and basic planning and development control among others. Other services are offered by line ministries which have administrative
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structures originating from the central government, through provincial to district administrative system. The City Council of Nairobi and other larger Municipalities such as Mombasa and Kisumu undertake all the above services and other higher level functions such as health, education and engineering works. All LAs are semi-autonomous and answerable to the office of the Deputy Prime Minister and Ministry of Local Government, previously Ministry of Local Government. Their semi-autonomous status has often been a bottleneck to efficient operations due to heavy reliance on central government both for direction and resources which are often insufficient for effective service delivery. The acknowledgement of this challenge has been addressed through local government reform programmes, in particular a fiscal transfer of a resource envelop from the central government under the name of Local Authority Transfer Fund (LATF). The fund was established in 1999 to provide funds to supplement LAs revenues to be used in three key areas: improvement of service delivery; improvement of financial management and accountability; and elimination of outstanding debts. The availability of LATF has improved the performance of a number of local authorities, although a lot still remains to be done in the area of service delivery. The on-going Local Government Reform Programme has been addressing this issue, including putting in place the Local Authority Integrated Financial Operations Management System (LAIFOMS). This system is expected to improve financial management in LAs, which has been a major challenge over the years.
4.5
Classification of Cities and Urban Areas
Currently Kenya has a number of urban areas classified as City, Municipalities and Town Councils, but there is no clarity on the criteria used for determining these entities. Prior to the era of good governance and New Public Management, most of the urban authorities got their status through political proclamations and have not been able to deliver services to their residents. There are no universal criteria for classifying cities and urban areas that is globally accepted. Countries tend to follow their own unique classification logic depending on local circumstances and the historical evolution of both their urban and local government systems. Towns are often classified based on their economic capabilities. They are viewed as centres of business with population concentration. In Kenya, there has been no progressive way of assigning city status to towns that have exceeded the thresholds set by many cities across the globe. Municipal, a generic concept which refers to a rural or urban area, in the context of Kenya, is a second tier of local authority system.
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Municipal Councils provide higher level of services than towns, but lower than cities. All the four levels of LAs are governed by locally elected officials. In other jurisdictions, other concepts such as boroughs are used for self-governing towns, and municipalities. The mandates of the boroughs vary across jurisdictions. In London, boroughs are subdivisions of the cities. A majority of states that have a devolved system have clearly defined the roles and relationships between the levels of government in legislation. For instance, in the case of London, the relationship between the London Boroughs and the Greater London Authority has been set out in legislation. The Constitution also provides for areas where the union, the states, and the federal district have the power to legislate concurrently. This includes tax, budget, education and culture, and judicial proceedings. In other territories, the boroughs do not give any additional powers to the council or inhabitants of a district.
4.5.1 Capital City and City Counties

The city of Nairobi which is the capital of Kenya produces more than half of Kenyas GDP. It is therefore important that Nairobi, being a primate city and seat of government be given due consideration in legislation to promote its further economic growth, international and regional status, planning and management. Article 200 Sub Section 2 (a) of the Kenya Constitution 2010 allows provision to be made with respect to the governance of the Capital city, other cities and urban areas. Although the Constitution does not mention Nairobi, it is acknowledged that the current capital city of Kenya is Nairobi. This does not bar any other regime or government from relocating the capital city from Nairobi, since it is a political decision, which is not limited to legislated criteria. Experience from elsewhere, including neighbouring Tanzania as well as Nigeria show cases where the capital cities of respective countries have been relocated from a primate city to other locations, including areas which have low population concentration. There is need to study the effects of such relocations in order to provide lessons should such a need arise. Relocation should not totally ignore other factors relevant for growth and development of cities, including those outlined in this report. During public hearings, the public expressed the need for cities to have long-term plans anchored on national plans such as the Vision 2030. They emphasized that proper long term planning in all developing towns should be put in place before any change of status depending on how fast an area is developing. There were many other factors which the public considered important for establishing and classifying cities as highlighted in Box 4.2.
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4.5.2 Conferring of City Status

Nairobi is the only urban area with city status attained in 1950 through a charter granted by the King of England. Two other large urban areas, Kisumu and Mombasa have been proclaimed cities but without a charter, and therefore still hold legal status of Municipal Councils. Conferment to a higher status has been the subject of heated debates with some contending that status upgrading can only be Box 4.2: Factors to Consider for conferment of done through a charter. Others City Status hold the view that, city status has been denied all other deserving a. An area with notable features of historical importance or has regional, national or Municipal Councils outside Nairobi international significance; and to perpetuate the citys primacy. b. DemonstratesDebates, notwithstanding, Kenya Positive contribution to the economic lacks criteria for assessing urban development of the country; areas for graduation, a fact which Proper management of its financial has partly contributed to erratic resources; conferment of status for various Efficient and effective delivery of services categories of urban areas. to its residents; In 2009, Kenya attempted to come up with a classification for urban areas and cities by preparing a Draft Local Government Bill (2009). Processes leading to this draft initiated thinking of classification of urban areas and cities. On Section 23, the Bill notes that the minister responsible may, on the recommendation of the Advisory Commission, confer City status onto a municipality taking into consideration a number of factors highlighted in Box 4.2. While some of the above criteria can be used for classifying cities and urban areas, the powers given to the Minister are not in line with the spirit of the Kenya
Effective programme of environmental conservation within its area; Active participation by its residents in the management of its affairs; Existing and potential land use, including industrial, business, commercial, residential and environmental planning; Availability of infrastructural facilities, including but not limited to roads, street lighting, markets, and fire stations with capacity for disaster management; Availability of a functional sewerage systems in its area of jurisdiction; Economy, functionality, efficiency and financial viability in its administration; and Ability to render services, including healthcare, education, waste management and environmental conservation within its area; and c. Presents, at a minimum, a five-year integrated development plan
Source: Office of the Deputy Prime Minister and Minister for Local Government, 2009
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Constitution 2010. Apart from other important factors not mentioned in the Draft Local Government Act, the CoK 2010 does not give to the minister power to confer city status. The other factors which should be considered include population, availability of public land, and vibrant business environment. Thus, in graduation of areas to towns, municipalities and cities, the ability of the areas to provide services to a population of at least 250,000 and above for cities, 75,000 249,999 for municipalities and 10,000 74,999 for towns respectively should be taken into consideration. All the factors provided by the Draft Local Government Bill, and those mentioned above, can be used in designating urban areas and cities, including upgrading their status. Criteria based on these factors can be developed and used for assessing and classifying them accordingly. In terms of procedure, urban areas which qualify can apply to a legislated body for status upgrading. Most of the variables highlighted by the Draft Bill were in line with those highlighted in the Counties during Public hearings (Box 4.2).The public emphasized the need to have at least one urban or municipality in each county. This preference was demonstrated in the existing tension around where County headquarters should be located. Such location was associated with urban development and by extension Box 4.3: Public Views On Factors For economic growth expected to occur, Consideration In Establishing Cities And once an area is designated as urban or Urban Areas city. While experience shows that cities Sound tax base, and ability to attract and urban areas can be reporting to external funding, either County or National government, Population of at least 350,000 most citizens preferred urban areas and inhabitants in a built area, Development level, including level of city managers to report to respective economic growth and industrialization, County governors.
per capita income, vibrant number of businesses, Long term planning, in line with national development plan, Investment climate, including level of infrastructure development, quality of transport, water and sanitation, health, safety and security and quality of schools, Administrative facilities with employees conversant and applying ICT in communication and development, and Topographical features
The Constitution of Kenya, 2010 provides for two levels of government, National and County, with urban areas and cities operating under Counties. This position was also emphasised during the public hearings in the counties (Box 4.3). A number of citizens noted that delinking urban areas and cities from the counties would weaken counties since the latter are the nucleus for economic growth and services.
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In order to ensure a smooth operation among the different units of governance, citizens suggested establishment of a mechanism of coordination and communication between the various entities within the County and the County Governor. A few others argued that, the LAs should not be disbanded but should exist as agents of respective Counties receiving administrative instructions from County Governments. Most of these inputs can be synthesised, harmonised and integrated in designing a national legal framework and related legislation by respective Counties since they do not contradict the Constitution which provides for further decentralization and operates on the principles of cooperation and consultation. The citizens also noted that current cities and municipalities should be retained and thereafter new criteria can be used to classify them as provided in Section 184 Sub Section 1 (a). This shall be integrated in legislation using a classification based on services urban areas and cities offer as listed in Appendix 2. While this is a logical manner of classifying these entities, it will be challenging for some of the cities and urban areas that currently exist and do not have the characteristics highlighted. This will imply some areas being degraded and being put under the direct management of Counties, either as towns or rural administrative units.
4.6
Challenges for Forty Seven Counties
The envisioned devolved system which provides for two levels of government is likely to pose a number of challenges. The first of which will be the alignment of current institutions and structures in line with the constitutional provisions. There is therefore a need to provide clear guidelines through policy directions and legal provisions in addressing these challenges for efficient service delivery and management. Using this approach some of the service functions of County Governments through the principle of subsidiarity will be delegated to decentralized units including urban areas and cities, and specialized agencies and corporations. The Constitution refers to the existing Local Authorities (LAs), which include 47 County Councils, 62 towns, and 45 municipal councils and the City of Nairobi in schedule six, part 4, Section 18 under devolved government. The fact that the Constitution does mention these authorities should not be seen as an act of omission but rather as a deliberate attempt to provide an opportunity for a shift in paradigm as far as local governance is concerned. The Constitution provides that all LAs established under the Local Government Act (Cap 265) existing immediately before the effective date shall continue to exist subject to any law that might be enacted. Policy and devolved Government legislation is expected
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to provide for further decentralization in both urban and rural parts of Counties. The same policy and legislative framework should provide direction for rationalization and alignment of other prevailing governance structures operating at County level, including Provincial Administration. The many governance structures, including LAs, Provincial Administration, line Ministries, Regional Authorities and various programmes are all embedded in Counties, and must conform to the Constitutional provisions. This requires functional rationalisation and alignment, giving policy directions and legal provisions for efficient service delivery and management. Using this approach some of the service functions of County Governments through the principle of subsidiarity will be delegated to decentralized units, including urban areas and cities, specialized agencies and corporations as guided by legislation. The two levels of government provided by the Constitution pose a number of challenges besides the issues of transfer of functions and related revenue allocation. These challenges include structural overlaps, cross county planning and development, capacity building, and economies of scale as discussed in this sub section.
4.6.1 Structural Overlaps

As highlighted in the previous sub sections, some sub units of counties will overlap with each other, for example cities and urban areas located within counties. Since management of cities and urban areas differ from management of rural areas, there is need to plan for this as suggested in the sub section dealing with urban areas and cities. In particular, transfer of functions and allocation of resources has to take into consideration management of the three types of municipalities proposed. In some cases municipal services will cut across counties, and inter-county service provision mechanisms will have to be designed for effective service delivery.
4.6.2 Capacity Building

Kenya has embraced devolution inheriting a weak local governance framework with many parallel systems at the local level, poor infrastructure and inadequate facilities. While more focus has been on the LAs and their capacity, including weak governance framework, the Kenya local governance gamut goes beyond LAs and embraces the role of the Provincial Administration, which must be restructured to accord with the requirements of devolved government. There are also line ministries which are expected to provide services to citizens but can hardly cope with the massive requirements of service delivery due to both inadequate resources, including shortage of staff. 46
The other entity on the ground is the Constituency which until recently had no management framework, except the Members of Parliament (MP), councillors and partisan committees. In recent years coordinators have been posted to manage the Constituency Development Fund (CDF). The role of this team will have to be redefined depending on the structure adopted as provided by National policy and Devolved Government legislation. In view of the changes envisaged in local governance, and in keeping with the spirit of the Kenya Constitution 2010, the place of CDF and its operation as an aspect of Parliamentary business can no longer be justified. The role of service delivery is purely a matter for the National and County governments. Notwithstanding the structure of County governance adopted, a needs assessment for capacity building and training is required. While one can argue that Kenya has a veritable pool of human resource, it should be acknowledged that the Kenya Constitution 2010 envisages a new approach to governance that puts citizens at the centre of decision making, particularly at the local level. It would be ideal to establish dedicated training institutions to deal specifically with matters relating to capacity building and training in preparation for roll out of counties. This should continue in the 47 Counties through both in-service and residential training depending on respective county needs. Training institutions could be at national, cross county (regional) or county level. Civic education including exposing citizens on their role in devolved government should be embedded in the training process.
4.6.3 Cross County Planning and Development

Effective local economic development requires planning and management of a number of development activities across sectors and counties. County infrastructural facilities and installations are essential for supporting productivity within, and across Counties and the wider national economy. The County governments are assigned a central role in development and delivery of infrastructure in the Fourth Schedule part 2 of the Constitution. The Counties are to plan, develop, manage and maintain a broad range of infrastructure within their jurisdiction for purposes of efficient delivery of services. The importance of cross county planning and management came out during public hearings with many Counties beginning to close up on their resources, or contending that fees have to be charged for use of resources originating from their Counties. One example of such a resource is water serving major cities with sources outside respective cities, and by extension Counties. Planning is aimed at achieving order, optimal and sustainable spatial distribution of social and economic activities by stirring up regional competitiveness to enable full
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Box 4.4: Submissions on factors for consideration in planning within counties Availability of competent human resource Availability of natural resources, land and population density Availability of infrastructure, including roads and ICT Existence of viable plans for executing functions On-going projects Environment, climatic conditions, geographical features in the area Cost and service delivery Economic disparities, marginalized groups, gender equity Presence of squatters Poverty index Urbanisation Security issues in an area
resource exploitation. However planning has faced several challenges, including functional disconnect between the planning authorities and implementing agencies; lack of appropriate technical and institutional capacity on the part of LAs; inadequate human resources; absence of broad based consultation; and effective coordinating framework for preparation and implementation of plans and enforcement. During public consultations the public highlighted some of the considerations which should be made while planning in Counties. Availability of natural resources, land and population were among the factors highlighted (Box 4.4)
Effective cross county planning and service delivery requires cooperation and consultation mechanism as provided for in Article 6(2) of the Constitution. This requires a national legislation and policy that will ensure that effective participation and management of cross cutting resources such as water, roads and electricity are planned in an integrated manner. Section 189 (2) provides the legal framework for the cooperation across Counties noting that different governments at the County level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and authorities. Where planning involves two or more urban areas across counties as the case of Nairobi, Kiambu, and Kajiado among others, provisions need to be made in statutes for the possibility of metropolitan planning arrangements that are of mutual benefit to the counties involved. However, these arrangements should not be restricted to any one part of the country. In principle, it should be possible to replicate them anywhere when it becomes necessary. Legal basis for cross county planning services are implied in a number of Constitutional provisions. Article 66 (1) provides for the regulation of the use of any land, or any interest in or right over land in the interest of defence, public safety, public order, public morality, public health or land use planning. Articles 66 (2) gives powers to parliament to enact legislation ensuring that investments in property benefit local 48
communities and their economies and Article 69 (a) and (b) obligates the state to ensure sustainable exploitation, utilization management and conservation of the environment and natural resources and ensure equitable sharing of the accruing benefits. The aspect of ensuring equitable sharing of accruing benefits is useful for cross county resources and services such as forests and water resources. The Constitution in Article 69 (b) further obligates the state to work to achieve and maintain a forest cover of at least 10 per cent of the land area to Kenya. This will require cooperation among counties, including putting in place an appropriate legal regime to facilitate and regulate forest reserves including urban forest cover. An example can be drawn from Karura and Ngong forests which cut across two Counties. Many other cases of forests and others resources including water and transport networks exist in other Counties. Water is a good example of a service which is often provided under the cross county concept. Currently, the Water Act provides a framework for the management and provision of water services. Under the Act, the Water Boards manage the water services through policies and regulation, while actual delivery to consumers is done by the water companies owned by LAs as provided by legislation. The same framework can be used where two counties or more come together to provide a service through a common board or utility company. In such cases Counties and boards can enter into partnership with utility company either within or outside the County or internationally for the provision of social infrastructure as shall be provided by legislation. The membership of such boards should include representation from the Counties and National government. Apart from water, other cross county sector and services include: transport, tourism, electricity, markets, housing, and energy. As highlighted in the case of water, planning for transport, housing, and energy is better done by specialized agencies, and companies for and on behalf of the affected Counties. In such circumstances there will be need to consider some form of metropolitan arrangement through specialised service delivery agencies that will not be constrained by the political aspects of devolution which tend to emphasise the distinctness of the various Counties as independent units. Even where urban areas are not specifically involved, thought needs to be given to how best to share services between Counties which have common boundaries who could benefit from economies of scale. There is need to establish long term sustainable framework for social, territorial, and economic development for cross cutting resources and services. The role of such a plan will be to improve inter county development systems with due considerations to each County and related environment. For example, land use planning and linkages 49
with environmental protection can be used to coordinate the spatial impacts and other sector policies for an economic distribution of regional or cross county services. Following the discussion above, consideration should be given to the former regional planning entities as possible vehicles for such development planning that cut across large geographic space and transcends individual County jurisdictions. These could be restructured or overhauled to play the middle role of regional planning in a similar manner to that of the Tennessee Valley Authority in the USA.
4.6.4 Economies of Scale

Section 189 (1) notes that cross county cooperation ensures and enhances articulation and implementation of national government policy. The second provision (2) provides for cooperation for effective service delivery. The provision states that governments at county level are supposed to cooperate and create joint authorities and committees with the aim of performance of certain functions. The joint performance of functions has cost benefit effects, including economies of scale. This also applies to the units of the County for example cities and municipalities within Counties and across Counties. One of the principle considerations for intergovernmental or intercity/municipal relations is economies of scale that accrue when providing trunk/bulk infrastructural services. This affects provision of water, roads, bridges, power among others. This implies that the production, provision and transmission of some services would transcend county boundaries and have to be negotiated appropriately with the objective of enhancing capacity and providing services efficiently and cost effectively. Citizens across counties require services as a basic right as contained in the Bill of Rights. However, some of such services may not be available within their counties. To provide such services, it is necessary that resource mobilization is done collectively in order to efficiently produce and deliver the services. In line with the discussion in this section, there is need for national policy and legislation to provide direction on how services which cut across Counties will be provided and managed. This should not be left solely to the discretion of the County governments. An appropriate framework for preparation of and implementation of integrated national, regional and local area land use plans that meet the needs of stakeholders across Counties should also be provided. In addition, there is need for facilitation of appropriate institutional and technical capacity building initiatives for accelerating plan implementation at all levels.
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4.7
Policy and Legal Gaps
The discussion on levels of governance, cities and urban areas reveals a number of policy and legal gaps which have to be addressed if the Counties are to effectively and efficiently operate. Areas which need to be addressed include: levels of further decentralization; reporting mechanisms; relationship between Counties and SubCounties; degree of autonomy in cities, municipalities and towns; and direction on graduation of urban areas to higher level of cities. A number of these gaps can be filled by having legislation outlining how urban areas and cities will operate in a devolved government. Figure 4.1 shows a proposal for decentralized County structure, while figure 4.2 further illustrates how the units of governance shall be structured, through legislation for the governance of rural units, urban areas and cities as well as the management of cross boarder projects.
4.7.1 Units of Further Decentralisation

Taking into consideration the expansive nature of the Counties and the principles of efficiency, effectiveness, accountability, equity, citizen participation and subsidiarity among others, it is prudent for Counties to have lower units of administration and governance for efficient service delivery. In addition to urban areas and cities, Counties should have three units of further decentralisation, namely: Sub-County, Ward and Village. These units may be aligned to Constituencies, wards and villages. A total of 290 constituencies have already been delineated, while the wards are still to be delineated. The villages may be aligned to existing sub-locations, or be realigned through consultation with County Assemblies, Independent Electoral and Boundaries Commission and any other relevant bodies. The urban areas shall be categorized into three, namely: City, Municipality and Town. Cities should have a population of at least 250,000 and above; municipalities a population of between 75,000 to 249,999 and towns a population between 10,000 and 74,999. For effective delivery of services in urban areas and cities, a legal framework should be provided for further decentralisation in these entities. Provisions should include division into Sub-Counties, with each of the Constituency in a city constituting a Sub- County, and at least two of the Sub-Counties shall be clustered together to form one administrative unit. This should be done in consultation with, and the approval of the County Assembly. The relationship between Counties and Constituencies should be defined to avoid conflicts which currently exist. During public hearings there were heated debates on whether any resources should be channelled to any other entity within a county, other
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than the County Government. Constituency Development Fund (CDF) was a common example. The CDF was proposed and negotiated by Members of Parliament (MPs). However, there is need to provide policy direction on all funds going to the Counties, including resources channelled to constituencies within counties. Although there were mixed reactions on elected leaders, with many citizens having problems with how MPs manage CDF resources, a significant number still preferred urban areas and cities to be governed by elected leaders, including having Mayors elected through universal suffrage. However, there was consensus that all elected leaders should report to the County Government, and should restrict their role to policy making. Reporting to County Governor is expected to address the challenge the LAs have been facing in reporting to multiple bodies, including the Central Government. Similarly, there is need for policy direction on the employees of Local Authorities who will cease to exist immediately the County Governments are elected. The counties have constitutional mandate to employee their own personnel, and will not automatically absorb existing personnel. The issue of some autonomy for sub units of County Governments is going to be a major challenge in rolling out the Counties. Embedded in Counties are entities that have been operating with some autonomy such as the Local Authorities, and line ministries which have totally different reporting mechanisms. Some of the considerations will be to have well defined units of further decentralisation delivering services on the principle of subsidiarity under the supervision of the County Governments. While it is acknowledged that most of the entities currently operating in the Counties will cease to exist once the County Governments are established, there is need to provide policy direction for the interim period taking into consideration Constitutional provisions, and the status which these entities have held and the powers they wield on the ground. Their power is too rooted, and some of the positions held by the public were partly influenced by this fact. The issue of graduation to a higher level status in urban areas and cities also requires attention. Depending on the nature of further decentralization, if a threshold is set, especially for urban areas, there will be need to provide policy direction on what happens once an entity reaches a threshold. Kenya is coming from a context of hierarchical thinking and operations, and unless policy and regulatory measures are put in place, status conflicts may be too much to manage. This was demonstrated during public hearings in the competition on where County head-quarters should be located. While this was not one of the TORs of the Task Force on Devolved Government, the public in most Counties pushed the issues into discussions, showing the importance they place on the issue. 52
National policy direction and legislation on these issues by the National Government followed by relevant legislation developed by respective Counties will assist in providing direction, and cushioning the Counties from unnecessary challenges during infant years. Policy and national legislation should guide County governments and ensure a threshold of good practices across counties. Leaving Counties to come up with their own policy direction and legislation depending on the decision of respective County Assemblies may be a threat to successful implementation of the devolution. Consideration should be given to establishing an authority through legislation to assist County Governments in putting in place required policies, laws, regulations and structures for rolling out devolved governments.
4.7.2 Governance of Decentralised Units

Legal framework shall provide for the governance of both rural parts of the counties as well as urban areas and cities. The governance of the entire County shall be vested in the County Assembly and the Executive Committee. Sub-County, Wards Administrators and Village elders shall assist in running the decentralised units within the rural parts of the Counties while Boards with the support of managers will manage Cities and Municipalities as highlighted in figure 4.2.
Figure 4.2: Proposed Structure of Cities and Municipal Entities
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The Manager shall be a Public Officer and Chief Executive Officer of a city or municipality and shall be the head of administration of the Board subject to the policy directions of a board as shall be provided by legislation. The Municipal Managers and Administrators shall be competitively recruited and appointed. A Board may establish departments, and specialised service delivery agencies as it may consider necessary within a city or municipality. The agencies could provide services such as water, public transport, environmental management, and emergency services. The Boards should provide administrative, management and oversight to service provision. Towns will be unincorporated entities and shall operate under the direct supervision of the County Executive Committee. Both County Assembly representatives and neighbourhood associations shall provide oversight. In all the decentralised units of the County, participation of citizens shall be mandatory. The County representatives will provide an oversight role while citizens will participate through forums organised quarterly, biannual and along sectors. Through the forums citizens shall make proposals on provision of services, deliberate on proposed annual budget estimates and development plans, monitor development activities and receive presentations, including feedback on issues raised by County citizens. In urban areas and cities, both cities and municipalities will provide similar services depending on their capacity, while towns shall provide services as delegated by respective County governments. The governance and management of the Capital City in line with Article 200 (a) of the Constitution and that of the City County shall be in accordance with the Devolved Government legislation. However, decentralised service delivery administrative units shall be structured in line with those of Cities and Municipalities as provided in legislation for urban areas and cities. For ease of management and efficient delivery of services, the areas shall be divided into Sub-Counties with each of the constituency in the city constituting a Sub-County, and at least two Sub-Counties shall be clustered to form one administrative unit as shown on figure 4.3. Every administrative unit shall be managed by a board and a competitively recruited and appointed manager, supported with technical staff. In the Capital City and City Counties, the ceremonial functions which are currently carried out by a Mayor will be undertaken by the Governor or any other officer designated by the Governor as may be provided by legislation. The same case will apply to other cities and municipalities, where Chairs of Boards will undertake the ceremonial functions of a Mayor. This is expected to reduce the conflicts that may arise with overlapping political structures, which provide for both a Governor and an elected Mayor. 54
Figure 4.3: Administrative Structure for the Capital City and City Counties
It is therefore expected that, like in cities and municipalities, Capital City and City Counties will be managed in a unique hybrid manner which responds to service delivery requirements. First, urban areas and cities residents will elect their County Assembly representatives drawn from wards. Secondly, the establishment of boards will enable the residents to be represented through various professional associations and groups and also allow individuals residents to be appointed through competitive recruitment process. The Board and City Manager governance model will facilitate the establishment of departments to respond to city service needs. The boards shall be composed of not more than 11 members with a Chair and a Vice Chair elected among the members. The day to day management of cities shall be done by the manager and such other officers as respective Boards may determine. This kind of governance is expected to enhance citizen participation and compliment Constitutional provisions which provides for citizens to elect their representatives. Furthermore, the established decentralised service units shall serve as service regions and divisions, and shall be the basic units for development planning and local service delivery. The administrators in the case of the rural areas and Boards in the case of urban areas and cities shall provide mechanisms for citizen participation at the various decentralised units. The governance should
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be capped up with a performance management system to ensure institutional and staff accountability. This should also include monitoring and evaluation (M&E) and reporting framework providing feedback to citizens. Legislation should provide for associations and forums of local governments, since local entities worldwide are represented by associations known as Local Government Associations (LGAs). The LGAs are composed of leaders (Mayors, Chairpersons and councillors) and officers. In the Kenyan situation, the LGA has established a number of forums to boost its governance. These include Mayors, Town Clerks, Town Treasurers and Women Councillors. These forums should be reorganised in line with the new governance structures of Counties. These could include associations representing cities, municipalities and towns as may be provided by legislation. This will enable the continuation of the local, regional and international local government programmes and, including exchange programmes. Furthermore, it is in line with the Local Government Associations and Networks, the United Nations, the European Union, the African Union and the United Cities and Local Governments and related associations legal provisions.
4.7.3 Service Delivery Models

Efficient delivery of services in the decentralised units requires comprehensive integrated development plans developed through citizen participation. These plans should be the basis for development and should have embedded frameworks for engagement that recognise principles of efficiency, inclusiveness, effective service delivery. Furthermore, they direct the management of service in respective units; guide response to resident queries on service delivery and coordination of respective units. Once Counties and decentralised units have plans, they may apply different models of service delivery including the ones highlighted below: Utility Companies: To be in charge of water reticulation, electricity distribution and municipal law enforcement. This can be companies, fully owned by the city or municipal authority. This will allow the authorities to generate revenue, while providing services efficiently and at affordable cost to the public. Agencies: These would be in charge of social infrastructure and services such as roads, environment, including parks and recreation areas, tourism and cultural promotion, health, emergency services among others. These agencies, fully financed by the Urban Municipal, will ensure that public goods are available and accessible to all, at minimal cost.
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Service Boards: May be formed to cater for services such as water, roads, among others, whose production and distribution transcend clusters and County boundaries. Service Boards will work closely with national agencies responsible for respective services, for example water, roads and electricity. They will ensure synergy between County and National government on policy, service standards, and regulations. Enterprises: These may be formed to commercialise the provision of services with a social function and would be structured as individual companies, but will focus on achieving reduced subsidies in delivery of their services. Public Private Partnerships (PPP): These are contractual collaborative arrangements between the public and private sectors, which cut across specific service delivery models. In the case of Counties, Infrastructural PPP arrangements between Public Sector organisations/County governments and private sector institutions for joint collaborative delivery of capital projects could be useful. The Public Procurement and Disposal Regulations (2009) of Kenya identify five types of partnerships that can be adopted for delivery of County infrastructure. They include: Management Contract (MCs), Lease, Concessions, and Build-Own-Operate (BOT). Other forms of PPPs that County Governments could apply include: Design-BuildMaintain (DBM); Build-Lease-Operate-Transfer (BLOT), Design-Build-Finance-Operate (DBFO) also referred to as Private Finance Initiative (PFI) in Britain and PurchaseUpgrade-Operate (PUO). A number of jurisdictions use different forms of services delivery depending on their requirement. In the United Kingdom (UK), County Councils, Districts and Boroughs all have different managerial systems, including County Councils being responsible for strategic-level functions that include education, social services and emergency planning. They also have established executives to implement the broad budget and policy framework adopted by their full Council. The Boroughs, on the other hand, are responsible for running all the local services in their areas of jurisdiction such as schools and waste management. In India, the Constitution identifies 29 matters over which rural local governments may have jurisdiction (Constitution of India, Eleventh Schedule (1950 - amendment of 1993).
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4.7.4 Policy Options and Recommendations

The Constitution provides for further decentralization without specification, although Article 176 (2) of the Constitution provides a decentralization of functions and provision of services to the extent that is efficient and practicable. This leaves the County Governments to determine what is efficient and practicable. This option might result in different interpretations, although this should be done in line with the spirit and principles in the Constitution. There is more clarity on cities and urban areas since a provision is provided through National legislation. However the Constitution does not provide how these entities should be structured for effective service delivery and management of services. It is therefore recommended that: 3.7.4.1 National Guiding Principles for Further Decentralization be developed The principles should include efficiency, effectiveness, accountability, and equity in service delivery. Further, the objects of devolution highlighted in Section 174 and principles of devolved government outlined in Section 175, in particular effective and inclusive delivery of services must be ensured. Ensuring Section 174 (c), by giving powers of self-governance to the people and enhancing the participation of the people in the exercise of the powers of the state and in making decisions affecting them is paramount. The latter can be done through representation and participation and ensuring that resources follow functions in all plans of the County. The guiding principles anticipated in this section should allow room for Counties to be innovative, competitive and efficient in service delivery. The rational for further decentralisation at the County level is to enhance citizen participation, efficient administration and service delivery to citizens. Further decentralisation will also facilitate participation of minorities within Counties in decision making affecting their livelihoods. This will particularly be useful for Counties with conflicts relating to sub ethnic, minorities and marginalised. 3.7.4.2 National Urban Areas and Cities Legislation be developed Components of this legislation should include Definitions (Sub-County, City County, Municipal, Service Boards, etc.) Structure of governance Classification of urban areas and cities Types of urban areas and cities Infrastructure in capital city
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Graduation and Conferment of City, Municipality and Town Status Overlap of jurisdiction and service delivery Functional Responsibilities Nature of staffing Financing Powers and Privileges Service delivery models Transitional Issues
The rationale for setting principles and having legislation is based on a number of factors, in particular the likelihood of Counties opting to take different measures, including others deciding to re-centralize at County level. Should this happen the whole principle of devolution will be lost and communities which have suffered in the past will continue to suffer. Embedded in centralization is the control of County resources, without further decentralization, County communities will not have the opportunity of ensuring the principles of decentralization which include efficiency, effectiveness, accountability, equity and subsidiarity. Furthermore, Kenya is coming from a history where there have been many parallel governance institutions and centres of resource allocation which is costly and unless policy direction followed by legislation is provided this is likely to continue. The Constitution does not give independent powers beyond the Counties, including urban areas and cities. This can be addressed through legislation. Otherwise any powers and responsibilities delegated to decentralized entities by Counties can be changed, removed or added at the County Governments discretion. The National policy and legislation will provide a threshold for all Counties and give them room for further legislation depending on County needs determined by the County Assembly in consultation with residents. At the County level, Counties should operate under a Devolved Government legislation which should provide for: Giving broad mandate to decentralised units; Respecting the right of management boards to govern municipalities in whatever way they consider appropriate within the jurisdiction given to them; Enhancing the ability of management boards to respond to present and future issues in their municipalities; 59
Recognizing functions of the urban areas and cities including ensuring effective and inclusive governance; providing services and facilitating other things that are, in the opinion of the council, necessary or desirable for the municipality and developing and maintaining safe and viable communities.
4.8
Conclusions
This chapter has discussed units of further decentralisation in County Governments and made proposals policy consideration and legislation. Below is a summary and conclusions on key areas of focus, which include policy, legislation and governance.
4.8.1 Policy
There is need to develop national guiding principles for further decentralization in all County Governments. The guiding principles will assist Counties in making decisions, and could include directions on: Urban development Relationship between County Government and Urban Areas Management of Capital Cities and City Counties Whether decentralised units should be administrative, or both political and administrative Funding of further decentralised units Training in counties, including prior to rolling out the Counties An appropriate framework for preparation and implementation of integrated national, regional and local area land use plans, that meet the needs of stakeholders across counties Long term planning in counties including in further decentralised entities, especially in developing rural parts of Counties, urban areas and cities, Cross county planning framework and regulation Relationship between Counties and Constituencies Effective participation and management of cross cutting resources
3.8.2 Legislation
Effective implementation of the Kenya Constitution 2010 requires review of laws and policies in line with the Constitution and embedding participation in all laws and service delivery processes. This chapter has recommended three legislations:
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1. 2. 3. 4. 5.
Devolved Government Bill Urban Areas and Cities Bill as provided in the Constitution County Public Finance Management Bill Intergovernmental Relations Bill Transitional Bill
The Devolved Government Bill and policy is expected to provide for further decentralization in both urban and rural parts of Counties among others. The same legislation should provide for rationalization and realignment of existing governance structures operating at County level, including Provincial Administration and line Ministries. The Bill shall repeal the Local Government Act Cap 265. Urban Areas and Cities Bill should provide for classification, structures, management and relationship with decentralised units and the County Governments. In addition, the Bill should provide for citizen forums to facilitate participation and access to service delivery in accordance with the Constitution. The legislation should also provide for a mechanism for designating urban areas and cities. Once a criterion is developed, the body should reclassify existing urban areas and cities accordingly. Once reclassified, urban areas, which qualify can apply to the established body for status upgrading. County Public Finance Management legislation should outline sources of funding for units of further decentralisation, while a Transition legislation should address the challenges of existing assets and liabilities of the current Local Authorities, as well as training of personnel. Last but not least the Intergovernmental Relations legislation should address the relationship between and among urban areas and cities, between them and County Governments, and other development entities operating within their jurisdiction.
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Chapte
Structures and Institutions of Devolved Governance

5.1
T
5.2
Introduction
his chapter deals with the arrangement, composition and configuration of the County Government. It spells out the working of the County Government and provides the framework for the supporting institutions. It is apparent, on the face of it, that at the centre of the County Government are the County Assembly and the County Executive. The former playing the legislative role, while the latter carries out the executive functions of the county. These responsibilities are undertaken within the wide purview of good governance. For this reason, it is considered appropriate to take a quick review of the tenets of good governance, particularly those spelt out in the CoK 2010.
Principles of Governance
Governance describes the process of decision-making and the procedure by which decisions are implemented. It is the dynamic interaction between people, structures, processes and traditions that supports the exercise of legitimate authority in provision of sound leadership, direction, oversight, and control of an entity. This is in order to ensure that its purpose is achieved, and that there is proper accounting for the conduct of its affairs, the use of its resources, and the results of its activities. In Kenya, the Constitution provides the foundation and cornerstone of governance. The Constitution defines the configuration, construction and composition of the tools necessary for the realization of good governance. It entrenches the rule of law and ensures protection of the rights of citizens, maintaining order and limiting the power of government.
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Article 10 of the Constitution provides for national values and principles of good governance. These are: a. Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; b. Human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalised; Good governance, integrity, transparency and accountability; and Sustainable development
Box 5.1: County Visit Submissions on National Values and Principles There is need for upholding the principles of accountability and transparency for the purposes of good governance in the counties Promote the principle of public participation as a way of enhancing citizens participation in governance particularly the County governments Institute principle of social audits for purposes of checks and balances for resources Provide oversight structures and institutions in the counties for purposes of good governance Entrench the principle of prudent management of funds through the creation of checks and balances in the counties
c.
d.
It is manifest that the Constitution affirms that sovereign power rests with the people, and this power can be exercised either directly, or through democratically elected representatives both at national and county level. This Article of the Constitution combines legal and definable principles such as the rule of law, the sharing, devolution of power and democracy with the more subjective concepts of patriotism and the participation of the people. Patriotism as used in the Constitution involves the loyalty to ones country. Patriots support, and are prepared to serve their country. The principle also represents an individuals connection to their countrys customs, traditions, pride in its history, and devotion to its welfare. Kenyas rich history has involved peaks and valleys in the midst of a plethora of customs and traditions inherent to a nation with a varied cultural background borne of varied tribes and their unique cultures and languages. An ideal patriot serves the ultimate goal of nurturing the nation and instilling national pride within the country.
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5.3
Legislative Arm of County Governments
5.3.1 Introduction
A cardinal principle underpinning devolution is the need to decentralize administrative, financial and political power to the local level in order to enhance the efficiency and effectiveness of government. A decentralized government allows greater citizen participation in local development and permits the government to respond quickly to local needs. The Constitution establishes a devolved government aimed at promoting democratic and accountable exercise of power, giving powers of self-governance to the people and enhancing the participation of the people in the exercise of the powers of the State and in making decisions affecting them. In so doing the Constitution recognizes the right of communities to manage their own affairs and to enhance their development. This is meant to promote social development and the provision of proximate, easily accessible services throughout Kenya and also enhance checks and balances and separation of powers. The objectives of devolution emphasize recognition of the fact that state power belongs to the people and is exercised on their behalf by elected representatives acting through formal institutions. It is intended that devolved governments augment peoples participation in governance and self-development and shall be based on democratic principles and separation of powers. This section seeks to define, explain and elaborate the arrangement, powers and functions of a County Assembly established under section 176 (1) of the Constitution. It also clarifies the relationship between the County Assembly and the County Executive on the one hand and that of the County Assembly and the National Government on the other. A County Assembly provides an opportunity for the exercise of a decentralized power structure away from the unitary system Kenya has practiced since independence. In this
Box 5.2: County visit submissions on county electoral process County Governments elections should be different from the National Government to avoid the distortions or fraud brought in by the political experts No direct party nominations Nomination of Speaker by PSC Limit on budget for campaign After nomination the list should be debated at County level Governor to get 50% plus 1 votes Majority of votes in at least half of the electoral wards
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way Kenya is following in the footsteps of Malawi, Ghana, South Africa and Nigeria which practice different shades of decentralized governments. The representative capacity of the County Assembly in terms of the quality and quantity of the interactions between the citizens and their representatives will be critical in this regard. For the County Assembly to be effective, this representation will need to take place in a variety of contexts. Often, representation will involve the incorporation of public input into the law-making or oversight functions of County Assembly and its representative capacity in this case refers to the capacity of County Assembly to obtain quality public input and effectively incorporate this input into its legislative and oversight processes. However, representation also encompasses constituent relations and constituency casework that is not directly linked to legislative or oversight activities. Citizens often seek the assistance of their representatives in answering questions about the County Governments policy or programs, or in redressing perceived grievances against the County Government. Here, representative capacity refers to whether County Assembly members have the incentives and the skills to resolve these issues appropriately, and whether citizens seek the involvement of County Assembly members in appropriate cases. Representation also includes other activities that connect the representative with the people he or she represents. The quantity and quality of interaction between constituents and their representatives is also impacted by the degree to which the representatives reflect the demographic characteristics of their constituents, i.e., whether women and various ethnic groups are sufficiently represented as legislators. Although the focus of representation is often on communication from citizens and civil society to their representatives, the reverse is equally important. Building a strong representative institution requires County Assembly members to take an active role in advocating for democratic government. County Assembly members need to educate constituents about the democratic process, about the County Government policies, and about competing policy concerns that influence County Government action. Unless County Assembly members explain to their constituencies why the legislature took the actions that it did, any divergence between an individual constituents interests and a legislatures action may be seen by the constituent as a lack of representativeness even if the legislature functioned effectively to balance competing societal interests. The proposals we make in this report will therefore seek to strengthen the representative capacity and effectiveness of County Assembly as discussed in the foregoing. In order to strengthen the internal capacity of the County Assembly the legal and political framework must encourage effective representation and provide the human and financial resources necessary to support the representative 65
function. In addition, procedural mechanisms are needed to provide opportunities for public input and comment on legislation and dissemination of information about legislative initiatives to citizens. Actors outside the legislature must also have sufficient information about how they can provide input and about how to advocate for and monitor the representativeness of the process. It is important for participation in the legislative institution to extend down to individual citizens.
Figure 5.1: Structure of County Governments
5.3.2 Composition, Qualifications and Election of County Assembly Members

Governance and electoral systems impact the dynamics of legislative representation and, as consequence, the strategies used to strengthen the representative capacity of legislatures. The Constitution provides for both a majoritarian (first-past-the post) and proportional representation at the County Assembly. The majoritarian system serves to provide a sense of accountability between representatives and constituents while proportional representation will promote more legislative representation for women and other marginalised groups and minority interests.
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The Constitution makes provision for the composition of the County Assembly. Under Article 177 of the Constitution, the County Assembly shall be composed of: a. members elected by the registered voters of the wards, each ward constituting a single member constituency, b. c. d. the number of special seat members necessary to ensure that no more than two-thirds of the membership of the Assembly are of the same gender; the number of the marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament ; and The Speaker, who is an ex officio member.
5.3.3 Qualifications for Election as a Member of a County Assembly

Under Article 177(1) of the Constitution, a member of a County Assembly shall represent a ward. To qualify for election into a County Assembly a person must be a registered voter and is either nominated by a political party or is an independent candidate supported by at least five hundred registered voters in the ward concerned. The Constitution is silent on the question of whether or not a person must be a registered voter in the Ward in which they seek to be elected. Under Article 193 (1) (b) of the Constitution, a candidate for the position of County Assembly Member must satisfy any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament. Under Chapter Six of the Constitution, certain leadership and integrity standards are required of any person aspiring to be a State officer. These prerequisites also attach to persons seeking the office of County Assembly Member. A candidate for the office of County Assembly representative must be a person manifesting personal integrity, competence and suitability for that position. They should possess the ability to act objectively and impartially without prejudice on account of nepotism, favouritism or corruption. They must at all times be guided by a desire to render a selfless service based on public interest and be disciplined and accountable to the public. The success of the functions of County Assemblies will largely depend on the capacity of the persons elected to sit in these institutions. The value of house debates, planning of development activities and overall supervision over the County Executive will be subject to the competence and ability of the County Assembly Members to understand their roles and to fully engage with the other County Government institutions. A robust County Assembly shall provide the necessary checks and balances over the County Executive. Unless members of the County Assembly possess the right aptitude 67
to undertake their duties the Assemblies will not deliver and may be a weak link in the implementation of the principles of devolution.
Box 5.3: County visit submissions on proportional representation Lists should be developed by party grass roots leaders, with strict vetting of all interested candidates with special consideration of all vulnerable groups, without interference from party headquarters and then presented to the party for confirmation Give the list of nomination before elections, so there is fairness Make the lists public and if possible publicized. Vetting should be done for party nominated leaders Party branches give the names to the electoral commission Through the National Delegates Conference, each party will then present the party list for presentation. This should be left to the political parties and their leaders to determine. Follow the political parties act on developing the list, e.g. party members come up with a list Guided by the party constitution, consider all the ethnic groups, interest groups, geographical locations and special communities Each party to have its own nomination procedure A committee consisting of members of the public should vet the candidates IEBC should conduct elections of all political parties to ensure fair representation and curb malpractices during party elections IEBC should do the nominations in only one day for all political parties There should be a vetting committee at the County level and a further vetting by IEBC and then approval by the County Assembly The Elections Commission should ensure that every political partys manifesto has a structure or system of nomination clearly defined. Have party vetting committee at County level There should be an independent commission for making party lists Current way of nominations should be retained The lists should be proportional in all locations or sub locations according to the party strength When developing the lists, political parties should put in to consideration the marginalized and the minorities Parties give members a chance to take part in making this list women, etc. be included IEBC should do the nominations in only one day for all political parties
During the public consultations, a variety of views have been expressed on the qualification, leadership qualities and experience of candidates for the office of County Assembly Member. It is evident that the recommendations are as varied as the proposers. 68
Box 5.4: County visit submissions on qualifications of governor, deputy governor, senator, county assembly members Qualifications for all Candidates For all the positions candidates must be: Adults of sound mind, respectable persons in society , registered voters in the County with high integrity, no criminal record, corruption free, visionary, team player, not bankrupt and must declare their wealth, KACC cleared and God fearing. Continuous residency in the County for 5/10 years/ native of the County Compliant with chapter 6 of the Constitution Senator: Should not have been a politician / Politician with Five years of experience Law Degree holders Should not have worked in the present government Elected by majority, not simple majority If the Senator is a man the governor should be a woman Ex-officio Member of County Assembly, to facilitate linkage County Speaker Legal background/a lawyer County Speaker should be elected by County Assembly Members Should be of opposite gender from the County Governor If Speaker is male then Deputy is female County Assembly Members: Resident, political knowledge and experience Serving Councilors 7% of County Assembly seats should be set aside for those with disabilities Proportional representation for marginalized groups in counties Educated minimum form four level, competencies in English and Swahili, with managerial skills
5.3.4 Educational Qualifications

On educational qualifications, it has been suggested that a County Assembly Member should have a minimum education standard of a primary school certificate. Others have proposed that the candidate should be a holder of a form four certificate, a diploma or a university degree. Clearly the suggestions have been coloured by the educational qualification of the person making the recommendation and the expectations and awareness of the objects of devolved government. Persons who have attained a higher educational status seem to think that a County Assembly Member ought to be one who has made a substantial advancement in formal education. Further, those exposed to the objects of devolution and have high expectations on self-governance prefer stringent qualifications and experience.
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Strong views have been expressed on the need to recognize that if the position of County Assembly Member is to remain the basic unit of representative democracy then it should be available to all citizens notwithstanding lack of any meaningful formal educational attainments. The power of this argument is based on the fact that other leadership qualities may be possessed of persons who may not be literate or may not have advanced in formal education, and that participatory democracy should not be inhibited by prescriptions that deny the right to be to be a candidate. The debate as to whether there should be a set of minimum educational standards for a member of a County Assembly may need to be examined against previous attempts to legislate on this matter, Constitutional provisions and the demands on sustainable functioning of County Governments. In the Bomas Draft Report which informed the failed 2005 proposed Constitution, there was unanimity of public opinion that a member of a County Assembly should be literate; holding a minimum of a Form 4 Certificate. It is proposed that this should be upheld. It cannot be denied that educational progression has an impact on the quality of contributions that a member will make in the Assembly and therefore a parallel link with democracy and good governance.
5.3.5 Ethics and Integrity

The public paid considerable attention on the moral standing of County Assembly Members. It was proposed that County Assembly Members should be persons without a criminal record and who have earned the respect of the community. It is suggested that before receiving the Election Management Bodys clearance to campaign candidates must be vetted by the Ethics and Corruption Commission (EACC) and issued with a clearance certificate. They should possess a measure of management experience in their fields of expertise and should be residents of the County in which they seek to be elected. It does not appear that residency in the Ward which one seeks to represent is a critical consideration. There has however been a desire to restrict membership of the County Assembly to the age bracket between 25 to 45 years. This is a view that finds accommodation amongst the youth, however, it is not shared by the elderly. The elderly members of society would rather that there is no age limitation.
5.3.6 Election of County Assembly Members

The election of members of County Assemblies is governed by Article 177 of the Constitution. Articles 177 (1) (b) and (c) provide for the nomination of county assembly
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members to represent marginalised groups and special seats necessary for compliance with the gender rule, respectively. The Independent Electoral and Boundaries Commission is mandated to supervise these elections. These members are to be nominated on the basis of proportional representation using party lists submitted before the elections. As a result of this approach there will be a more diverse range of representation that allows more women, marginalized groups and minorities in the county assemblies.
Figure 5.2: Elections and Electoral Processes at the County Level
Voting for a closed list will discourage corruption from the party members as compared to the open where individuals use money in influencing voters. The parties will have to come up with a party list that is attractive enough, consisting of very competitive members in order to be able to win the confidence of voters. In operating a closed party list the minorities and marginalized communities rights will be protected unlike in the case where we have an open list the minority are marginalized and their voice does not prevail after voting for the party. The closed party list discourages the existence political parties on ethnic, racial, or religious lines in order to be able to have the good will of the diverse groups hence
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discouraging marginalization for some groups. The marginalized and minority groups are likely to receive proper representation at the County level by offering a candidate to a given party which they intend to vote for. It is proposed that legislation should provide the number of members of marginalised groups, including persons with disabilities and the youth who should be represented in the County Assembly.
5.3.7 Disqualification from Elections

The Constitution sets down certain specific criteria disqualifying persons from participating in elections as members of a County Assembly. A State officer or other public officer, other than a member of a County Assembly, or a person who has within five years immediately before the date of an election served as a member of the Independent Electoral and Boundaries Commission, or is of unsound mind or an undischarged bankrupt cannot be elected as a member of a County Assembly. Further, a person who is serving a sentence of imprisonment of at least six months or has been indicted on an offence for misuse or abuse of a State office or public office or who has contravened the principles of leadership and integrity under Chapter Six of the Constitution is also ineligible. The legal disqualifications on account of being found guilty by a court of law do not hold unless all review or appeal options have been exhausted.
5.3.8 Election of the Speaker of the CountyAssembly

The Constitution provides that each County Assembly shall have a Speaker who will be elected by members from amongst persons who are not members of the Assembly. The Speaker shall preside over the sittings of the Assembly. In the absence of the Speaker the Assembly shall elect one from amongst themselves to preside. The Speakers office is endowed with considerable power as the holder also performs other administrative and procedural functions. Article 178(3) of the Constitution empowers Parliament to enact legislation providing for the election and removal from office of Speakers of County Assemblies. The Fifth Schedule to the Constitution requires this to be done within one year of the effective date. The election of the Speaker should not provide any challenge as the Constitution provides that on the first day of each new Assembly, each party represented in the County Assembly, or a coalition of parties should provide a candidate to be voted in. If only one candidate is nominated, that candidate should be declared elected. If there is more than one candidate, and if no consensus is
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obtained, the members should vote and the candidate with the highest number of votes should be declared so elected. The Speaker assumes the position of the contact person for the Assembly and serves for the period of the Assembly. There is unanimity of thought that a County Speaker should be a person knowledgeable in law, well experienced and versed with the process of law making.
5.3.9 Management of Elections

Under Article 88 (4) of the constitution, the Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of referenda and elections to any elective body or office established by the Constitution or any Act of parliament. Subsequently the Commission shall carry out all elections in the counties. Under Article 90 the Commission shall be responsible for determining which persons shall be nominated to the County Assembly on the basis of the party lists. In accordance with Article 177 (1) (b) the commission shall undertake the computation of the special nomination seats necessary to ensure that no more than two thirds of one gender occupy the County Assembly.
5.3.10 Mandate and Functions of the County Assembly

The County Assembly is the voice of the residents of the County. The Assembly provides legitimacy for and accountability over the County Executive. The Assembly holds the legislative authority of the County. A well-structured and suitably managed County Assembly shall enact County laws, direct and limit the power of the Governor and the County Executive and, while respecting the principle of separation of powers, exercise an over-sight role in all the activities within the County. County legislation deals with matters that are within the jurisdiction of the County. It may be preferable that model legislation be developed on matters that are common to counties that wish to deal with similar issues. This will remove uncertainty and confusion on domestic County laws on comparable subject matter. A County Assembly is charged with the responsibility of receiving and approving plans and policies for the exploitation and management of the Countys resources and the development and management of the Countys infrastructure and institutions. In the discharge of its functions a County Assembly shall be bound by national and county legislation. For the better running of its functions, a County Assembly may work through County Assembly Committees.
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5.3.11 Other Functions of the County Assemblies

The Constitution makes room for the County Assembly to discharge other functions, for instance enacting legislation that may set out the structure and framework for the better administration and management of County governments. Accordingly it is proposed that County Assemblies be given power to undertake other responsibilities including: Approval and oversight of budgets Approval of development projects Supervision of other units within the County through political authority, guidance, and direction Monitoring the execution of projects under approved development plans and assesses and evaluates their impact on peoples development. Approval of investment decisions. Approval of loans.
The County Assembly should be able to control and direct the economic activities within the County and ensure an equitable and acceptable development and use of resources and to guarantee that taxation policies and levels do not inhibit trade and industry and yet be sufficiently flexible as to permit collection of adequate resources to advance the interests of the County. One of the traditional functions of the County Assembly will be the scrutiny of the County Executive Article 185 of the Constitution, which vests legislative authority in the County Assembly; this includes law making and oversight over the Executive Committee. This requires the enactment of laws that enable the County Assembly to exercise oversight functions, through for instance scrutiny of the budget, whereas the Executive is required to justify its policies. The law will be enacted to provide for a wide range of instruments to scrutinize the work of the County Executive and County Organs. This should include; budgetary powers of the County Assembly; the submission of written questions to the County Executive which will require direct answers to County Members at questions-and -answer session with the County Executive Committee members debate on topical matters.
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5.3.12 Proposed Duties of Members of the County Assembly

It is proposed that Parliament legislate on basic obligations for a member of a County Assembly. It is assumed that such legislation will enhance performance and accountability on the part of individual members of the County Assembly and on the County Assemblies as corporate entities. Presently Members of Parliament and those serving in local authorities have no job description that directs or governs their vocation. This nebulous and unformulated environment leads to the exercise of labour on uncoordinated activities, which do not contribute to public benefit. Public views suggest that a member of a County Assembly should at all times; Maintain close contact with and consult the people of their ward on issues to be discussed in the Assembly and to collate their views, opinions and proposals. Present the views, opinions and proposals of the people of his ward in the County Assembly Draw attention in general debate to national policies, which are relevant to the debate in the house. Actively participate in the work of any sub-Committee appointed to Maintain frequent liaison with organized productive economic groupings in the County. Take part in community activities. Appraise the electorate on the workings of the Assembly and debates and decisions passed.
5.3.13 Removal from Office

Once elected, a member of a County Assembly holds office for a period of five years unless the member dies or is absent from eight sittings of the Assembly without permission, in writing of the Speaker, and is unable to offer a satisfactory explanation for the absence. Such absence will necessitate that the member forfeits his seat. A member may also resign in writing, or may lose his seat if he resigns from the political party that sponsored his election, or if an independent, joins a political party. Article 104 of the Constitution gives an electorate the right, to recall a Member of Parliament before the end of an electoral term subject to legislation on procedure. There is abundant public support to have this right extended to cover County Assembly representatives. It is suggested that legislation defines with sufficient exactitude the failures which would give rise to the exercise of this radical power. Perhaps a 75
performance contract or a delivery scorecard would control arbitrary discretion in the employment of this clause making it available in the very limited occasions when a County representative is clearly underperforming and disadvantaging the electorate.
5.3.14 Size and Population of a County Ward

The Constitution requires the Independent Electoral and Boundaries Commission to review the number, names and boundaries of wards periodically.3 Ordinarily, delimitation of wards and constituencies must be completed twelve months before a general election. This requirement is waived with respect to a review of wards and constituency boundaries preceding the first elections under the new Constitution. This means that the IEBC may proceed to delimit boundaries of wards for the 2012 elections even if the same was done inside the twelve month period.
Box 5.5: County visit submissions on county wards Size: Baseline survey be done before deciding on the number of wards and whether the existing ones are sustainable, if weak they be merged. Local elders who understand the County be involved in deciding the size Size, not less than 500 square kilometres/20 square kilometres, 10 square kilometres, size of a location, split some to be the size of a sub location. Size to be guided by: economy, historical and geographical patterns 8 wards in every constituency Composition of 10 villages All existing wards should remain and more can be added Two locations to make one ward, a location and sub-locations be made into wards Population: Population should not be used to determine wards A sub location for densely populated areas and a location for sparsely populated areas Should be divided according to a population quota to ensure efficient service delivery Should not consider population size in North Eastern due to low population occupying very big area Population of a ward not more than 1000 registered voters/5000-20,000 people in a ward Maximum population of a ward in urban centres must not be more than 50,000 people. For sparsely populated areas not less than 5000 registered voters and 20000 people for densely populated areas The small wards to be merged to get 5,000 people Registered voters, 5,000 voter, 250 km Max 30,000 people Public Participation: Ward Citizen Forums (WCF) for citizen engagement WCF right to access all official records for sectoral and County departments
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A critical issue for consideration is the determination of the criteria to be used to determine the size and number of Wards in Kenya, and consecutively, the determination of Wards per each County. The public consultations have elicited various views on the size and population of a County Assembly Ward. It has been suggested that the Task Force should recommend a minimum and maximum number of wards for each County and IEBC would distribute these wards based on the criteria set out in sections 89(5) and 89(6) of the Constitution4. The other approach is to take cognizance of public views that suggested that the present boundaries of wards for municipal and County councils should be maintained and translated into County Assembly wards. Yet others felt that these units would proliferate into numerous unsustainable County wards and which may be a saddle and a financial burden for the counties. In any case, this amounts to only maintaining current local authorities, less County councils. For this reason it was suggested that County wards should be demarcated to follow the administration units commonly referred to as locations. This would largely pay obeisance to the age old regard for community of interest and historical ties of the people. It is proposed that the delimitation of wards must consider the interests of the minority and marginalized groups. On the question of population, the public proposals range from a population figure of 5000 residents to a population of 25000. The predominant view is guided by the need to offer a close and effective representation as well as a desire to maintain sustainable units that will not be a mere drain on scarce resources. Whether using the current location boundaries will reduce unsustainable wards and fulfil the desire for effective fiscal management remains debatable. A more enlightened approach would be to observe and borrow Constitutional requirements on Parliamentary representation boundaries formula that may lead to some merger of current local authority wards so as to establish more realistic boundaries for the County wards. In terms of geographical size, there appears to be a commonality of thought that highly populated areas should enjoy a dimension shrink while areas that are thinly populated should suffer a land mass pull out in line with provisions 89(6) of the Constitution. A key principal of representation is that for each political unit the number of electors per representative should be as equal as possible. Only when equality in electorate to representative ratios is established can equity in other demographic infrastructures then be pursued. The constitutional provisions for delimitation of electoral units is 77
found in Article 89 which states that the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota. The population quota is obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided. However, the number of inhabitants of a constituency may be greater or lesser than the population quota by a margin of not more than forty per cent for cities and sparsely populated areas and thirty per cent for the other areas so as to take into account the a) b) c) geographical features and urban centres; community of interest, historical, economic and cultural ties; and means of communication.
The Task Force on Devolved Government has determined that for a County Assembly to effectively fulfil its representation and oversight functions, it is required to have a minimum of twenty-five (25) members. It has also considered the political reality that while wards are the electoral units for purposes of County Assembly elections, they are also constituent units of constituencies. There boundaries will therefore be determined by the existing boundaries of constituencies. Under Article 89 (1), the Constitution provides that there shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a). Given that these have been defined and determined according to the constitutional provisions as explained in the foregoing, the Task Force, for purposes of determining the number of wards per county, is of the view that each constituency should five (5) wards. This will serve to maintain a relative equality between the wards and the number of electors. The numbers will then be adjusted by allowed deviation from the population quota to allow for a minimum of 25 county assembly members.
Table 5.1: Summary of Number of Wards Determination Criteria

# 1 2 3 Criteria Number of Constituencies per County Gender Special Seats Marginalized Special Seats Assumption Equitably determined All those elected are women or men There will be a need to fill the seats for the marginalized as they will not have been catered for under the elective wards or the gender special seats Factor 5 One third of the elected ward representatives Four, nominated and appointed in a manner respecting the one-third rule
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Using the above criteria and guidance from the CoK 2010 and the National Election Bill 2011, the following methodology was applied to determine the number of wards per county and for the whole country, as well the anticipated size of the county assembly.
Table 5.2: Anticipated Maximum Sizes of the County Assemblies

County Number of Constituencies Five Wards per Constituency Marginalized special seats nominated 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Gender special seats nominated 3 3 5 5 5 5 7 7 7 7 7 7 7 7 8 8 8 8 8 10 10 10 10 10 10 10 10 10 10 Anticipated Maximum Size of County Assembly 17 17 24 24 24 24 31 31 31 31 31 31 31 31 37 37 37 37 37 44 44 44 44 44 44 44 44 44 44
Lamu Isiolo Tharaka-Nithi Tana River Samburu Laikipia West Pokot Embu Elgeyo / Marakwet Kirinyaga Kwale Nyamira Taita Taveta Marsabit Trans Nzoia Bomet Nyandarua Vihiga Kajiado Narok Turkana Nandi Makueni Wajir Baringo Siaya Mandera Garissa Nyeri
2 2 3 3 3 3 4 4 4 4 4 4 4 4 5 5 5 5 5 6 6 6 6 6 6 6 6 6 6
10 10 15 15 15 15 20 20 20 20 20 20 20 20 25 25 25 25 25 30 30 30 30 30 30 30 30 30 30
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County
Number of Constituencies
Five Wards per Constituency
Marginalized special seats nominated 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 188
Gender special seats nominated 10 10 10 12 12 12 12 13 13 13 13 15 15 15 18 20 20 28 483
Anticipated Maximum Size of County Assembly 44 44 44 51 51 51 51 57 57 57 57 64 64 64 77 84 84 117 2,121
Kericho Uasin Gishu Mombasa Muranga Busia Kilifi Kisumu Kitui Homa Bay Migori Machakos Meru Bungoma Kisii Nakuru Kakamega Kiambu Nairobi Total
6 6 6 7 7 7 7 8 8 8 8 9 9 9 11 12 12 17 290
30 30 30 35 35 35 35 40 40 40 40 45 45 45 55 60 60 85 1450
Based on this analysis, Table 5.2 shows the maximum sizes of the county assemblies.
5.3.15 The Asymmetrical Transfer of Legislative Functions

Devolution is the transfer of power, specifically legislative power to governing bodies at a sub-national level. However the transfer of power will neither always be uniform nor identical across the 47 Counties created by devolution. Asymmetrical transfer means that some distinctions would be made between the various counties. Thus different Counties would possess different powers: one or more of the counties would have considerably more autonomy than the other(s) even though their Constitutional status would remain the same. This is actually a natural requirement or progression of the devolution process for no two states can be said to be identical. Each one has different needs and capacities whether from an infrastructural perspective or a social perspective. It is for this reason that devolution is such a practical construct as it allows each County to individually
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innovate and develop their unique resources and achieve their full potential. Some counties will already possess the necessary capacity to assume a greater proportion if not complete legislative control over their region. Other regions in Kenya will have to lean far more on the legislative power of the central government as they will lack the necessary capacity to generate and indeed effect legislative change independently.
5.3.16 County Assembly Legislation

The Constitution permits a territorial, intra-County power of legislation to individual County Assemblies except as the issues touch on nationwide policies. The intention of the Constitution is to allow County legislation if the same does not contravene national laws. The equilibrium is set on a scale of comparison as to whether the matter in contention is one of local or national jurisdiction. The guiding principle seems to be a balance between the national good and County aspirations. Whichever view one takes, due consideration should be given to the Constitutional vision of permitting County Assemblies to steer legislation on County matters. A significant consequence flows out of this principle; County legislation does not apply outside the County territory. This means that different sets of laws may apply in different counties on matters that are almost similar. The County Assemblys power is confined to matters that are within the County Governments functional jurisdictional competence as listed the Fourth Schedule thus Counties will be enacting legislation on the same issues and thus it is important to so as to ensure cohesiveness in specified areas and to avoid inconsistencies with national policies. As it is may be difficult to determine the type of capacity the 47 County Assemblies will have to enact legislation, and given the time and resources required to enact legislation that conforms with the modern drafting rules and principles, it is proposed that the Law Reform Commission be mandated to develop a generic or framework legislations (draft model laws) on the common issues identified in the Fourth Schedule which the Counties can then use and adapt to suit the circumstances in their own Counties. On the process of enacting laws, it is recommended that the legislative procedure adopted by County Assemblies should be less elaborate as compared to the Parliament so as to enable the process of enacting legislation in the counties be faster and less costly to the tax payer. It is also proposed that all Bills passed by County Assemblies should be accented to the Governor.
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The specifics of legislative procedures should be enacted in legislation so as to cater for issues such as; County Assembly Rules of Procedure and Standing Orders; Debate of County Public Bills; Private Bills; Sessional Papers; Readings for Bills; Questions; Motions; Voting and establishment of Committees.
5.3.17 Conflict of Laws

The Constitution makes specific provisions for the resolution of conflict of laws between National and County governments in matters falling within the concurrent jurisdiction of both levels of government. National legislation overrides County legislation in situations in which the National legislation is of a countrywide application and the matter in contention cannot be properly regulated by each individual County because of the need to establish norms and standards or national policies. A further important consideration for dominance of National over County legislation is when the National legislation is required for the maintenance of national security, economic unity, and the protection of a common market in respect of mobility of goods, services, capital and labour. Moreover, if National legislation entails the promotion of economic activities across the country or the promotion of equal opportunity or equal access to government services or the protection of the environment, then County legislation would have to give way. Finally, National legislation shall prevail over County legislation if the former is intended to prevent unreasonable action by a County that is prejudicial to the economic, health or security interests of Kenya or another County or impedes the implementation of national economic policies.
5.3.18 Policy Issues and Recommendations on Legislation

A reorganization of the political and administrative structures is a pre-requisite to changing the character of Kenyas democratic configuration. County Assemblies should be strong institutions which represent the collective aspirations of the ordinary citizens, acting in the interests of the community. There should be political decentralization where political power and authority is transferred to the County Assemblies, blended with a strong participatory framework and autonomy for the success of County Governments. It is proposed that the maximum number of wards in the country be 1450. It is proposed that County Assembly members should have the following qualifications:
(a) Be fluent in Kiswahili and English;
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(b) Be holder of at least a first degree from a recognised university (c) Satisfy the leadership and integrity standards set out in Chapter Six of the Constitution and undergo vetting as provided for under the Ethics and Anti-Corruption Bill/Act (d) Provide the Independent Electoral and Boundaries Commission with an original certificate of clearance from the Ethics and AntiCorruption Commission prior to registration as candidates. (e) Provide the Independent Electoral and Boundaries Commission with a certificate of good conduct
It will be necessary to enhance the ability of elected leaders with technical capacity through either nomination or appointment of persons with expertise so as to enrich County Assembly debates. Local civil society groups and the public should actively participate in the County Assemblies public function so as to promote responsive and accountable local governance and this right to participate should be guaranteed through legislation. County Assemblies should have various sub-Committees:- finance & administration, health education, social welfare etc. It is proposed that the following legislation be enacted; County Assembly Rules of Procedure and Standing Order and Powers and Privileges Bill. It is proposed that the procedures for enacting County legislation should be less elaborate than that of Parliament so as to save time and resources.
Under Article 200 (1) of the Constitution, Parliament is empowered to enact legislation to give effect to all matters appertaining to implementation of the devolved system of government. Such legislation will provide for; The number of wards in the County Assemblies The educational, moral and ethical requirements for members of the County Assemblies, the governor and the speaker The procedure for election and removal from office of Speakers of the County Assemblies and the Governors 83
Powers, privileges and immunities of County Assemblies, their committees and members
Protection of minorities within the counties Guarantee cultural diversity in the County Assembly and the County Executive County Assembly oversight over the County Executive Basic duties and obligations for a member of the County Assembly and the Executive committee.
5.4
Executive Arm of Government
Kenya has historically experienced personalized and highly centralized governance systems and practices. The search for inclusive, involving, Democratic process to be and participatory governance has established taken the path of devolution. Political Competitive hiring from within or and administrative reforms that have without the County been going on since the 1990s, have Interviewed by a panel of sought to break with the past through competent lawyers Names of Two selected candidates decentralization of powers to lower local sent to the County Assembly for governments. Devolved government election was found to be the most suitable mode Elections to be managed by the IEBC through which greater participation of communities in governance as well as oversight and ownership would be ensured. Key principles of devolution are that County Governments shall be based on democratic principles, separation of powers, and that no more than two thirds of members of representative bodies in the County shall be of the same gender5.
Box 5.6: County visit submission on the procedures for election of county speakers
5.4.1 Composition and Structure of the County Executive

The Constitution provides for a County government for each County, consisting of a County Assembly and a County Executive. The Executive authority of the County is vested in and to be exercised by a County Executive Committee consisting of a County Governor, Deputy County Governor and members appointed by the County Governor with the approval of the County Assembly, but who should not be members of the County Assembly. The equivalent of a presidential system has been adopted for the
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County government, whereby the Governor who is the chief political executive of the county is directly elected by the populace and possesses the sole power to appoint members of the Executive Committee.
Box 5.7: County visit submissions on structure County Executive Committee District Executive Committee Ward Executive Community Location Executive committee Sub-County Implementation Units Sub-Location Executive Committee Village Elders
Although the Executive normally refers to the entire branch responsible for the implementation of laws in government, in county government there is a distinction between the political leaders in the County Executive Committee, and the administrative hierarchy. This distinction is necessary because it is only the political leaders who will have political responsibility and accountability to the County Assembly and citizens. The Constitutional provisions on decentralisation also refer to decentralisation of functions and service delivery, and no provision is made of creation of new political structures. It would therefore not be possible to create new structures but it is recommended that Executive functions could be decentralised. On the issue of distribution of Executive powers between the national and county governments the Constitution envisages a situation where national legislation can be implemented by the County Executive. This is meant to avoid unwieldy and expensive bureaucracies at county level and calls for cooperation, coordination and communication between the National and County Executives. There will also be need for compromise and consideration of the interests of both governments. It must however be pointed out that the need for compromise and coordination can make decision making difficult and gridlocks are likely to arise. We recommend that the legal framework in addition to providing for mechanisms of coordination and communication also provides for solutions in the event of lack of compromise. The provision for decentralisation of functions is in the interests of efficiency and practicality. We recommend two ways of decentralising Executive functions. The first is by way of delegation of functions to Executive Sub-Committees with the responsibility of analysing proposals and recommending appropriate action to the Executive Committee. These Sub-Committees can be statutory or non-statutory and with specific mandates. The Chair and Vice Chairs of all Sub-Committees will be required to be members of the Executive Committee and other members can be coopted on the basis of their specific expertise.
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Box 5.8: County visit submissions on county executive committee Members of County Committee Qualifications: Appointed from location level, representing each location, vetted by the County Assembly and approved by the Governor 70% of County Civil Service should be residents of County Service delivery should be community driven through committees such as County Education Committee Hiring: All appointments to get clearance from EACC Should publicly declare personal wealth Advertiseinterviewselectionnominationvettinghiring Approval by Assembly and removal by 2/3 County Assembly majority vote Executive team should be geographically distributed from the whole region Removal Use the County Service Committee Have an Impeachment Committee to remove them not County Public Commission County committee to investigate and recommend their removal Special Committee to evaluate them then recommend to the governor in appointment and sacking Vetting committee consisting of members of public should recommend their removal The removal should be done by the County Assembly members upon justified under performance By 51% of County Assembly members/ Resolution of two thirds or 75% of County Assembly, either by motion originating from County Assembly or from the petition from the public The Public Officer Ethics Act 2003 (POEA)
The second is 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 through privatization. Corporatization refers to the reshaping of a publicly owned organization to operate on private sector corporate principles. Privatization refers to the transfer of a function entirely to the private sector. This can be by contracting out with the county government maintaining some control mechanisms or getting out of the function entirely, leaving provision of goods and services to the marketplace. Agency structures are preferable where the delivery of a function: should not be subject to direct influence of the Executive committee or public servants e.g. quasi-judicial functions requires more operational flexibility
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requires close and continuous participation of the public or private sector.
Corporatization and privatization have important implications in that they may provide for more efficient local decision making but not necessarily local governance or local democracy. Membership of local Committees of parastatal organizations usually reflects special interests and expertise rather than the community as a collective of people. Membership is mostly appointed rather than elected from and by the community. Their role in decisions is important but will not inevitably reflect wider community opinion and values. This may be local decision making, not necessarily local governance. Accountability is required to the local community through rigorous consultation and reporting. Key aspects that the legislation will need to address with respect to agencies are: The purposes, roles, powers and duties of the agencies The relationship of the agencies with other County Government structures to ensure there is no duplication, gaps or overlaps in service delivery or authority The responsibilities of the Executive Committee for policy and administrative decisions The reporting relationships and requirements of the agency to the County Government structures The size, composition and appointment process and procedures for the members of the governing board of the agency.
5.4.2 Election, Appointment and Qualifications of the County Executive

The County Governor is directly elected by registered voters in the County, and he/ she nominates a qualified person as the Deputy Governor who is declared elected once the Governor is elected. The direct election of the Governor increases the degree of accountability to voters. Electoral systems and processes used will influence the effectiveness of democratic governance in the counties in many ways. First, the legitimacy accorded an incumbent Governor will be shaped by the Governors apparent scope of victory, which is influenced by the election method used. Second, the interaction of the methods used for electing Governors and County Assembly members will affect the extent of party fragmentation and the percentage of the County Assembly seats controlled by the Governors party. Both of these factors
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will affect the ability of the Governor to obtain legislative support for their policy initiatives. Through its effect on the number of parties able to obtain representation in the County Executive structures and County Assembly, the electoral system also influences the fairness of political representation. Party systems also respond to the realities of local politics and electoral systems, and produce corresponding structures at the local levels.
5.4.3 Leadership and Integrity

The governance challenge under the CoK 2010 revolves around how to cultivate an ethical leadership in both the political arena and the bureaucracy. Leadership primarily refers to the ability to influence others to act towards a desired goal. Ethical leadership refers to leadership that is founded on values and that advances the public interest for the benefit of the majority. The main the guiding principles of leadership and integrity as provided by the Constitution include: selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism; favouritism, other improper motives or corrupt practices; selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties; the declaration of any personal interest that may conflict with public duties; accountability to the public for decisions and actions; and discipline and commitment in service to the people.
The Constitution seeks to reverse the governance paradigm by institutionalizing a leadership with integrity. It does this primarily by establishing an enabling normative framework and setting parameters within which leadership will be exercised under the CoK 2010 including: the responsibilities of leadership; conduct expected of state officers; financial probity; restriction of certain activities by public officers; and the requirements of citizenship for leaders. The Constitution provides for the establishment of an Ethics and Anti-Corruption Commission for the purposes of implementing the provisions on leadership and integrity. Ethical behaviour and personal integrity in public life means that public officials act in ways that they and society have accepted as right conduct and that this behaviour is consistent with their personal values and commitments. Most people in public office
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enter public service with honourable intentions, but there are enticements in public life that can lead honourable individuals to make ethical misjudgements. To curb the temptations of power and position, ethical laws are created that set limits on public action. Ethics laws are usually created in response to some act that lawmakers feel was of questionable ethical conduct. Ethics legislation is only one way to set standards of ethical conduct by which public officials should operate. Ethical government means much more than laws. It is a spirit, an imbued code of conduct, an ethos. Laws and rules can never be fully descriptive of what an ethical person should do. They can simply establish minimal standards of conduct. Official judgment and discretion in the public interest must also be governed by personal responsibility and knowledge of the consequences of their actions. In the end, personal integrity will determine the level of ethical behaviour in government. We recommend that there be an ethics law to provide some basic standard for ethical conduct and consequent penalties for unethical behaviour. 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.
5.4.4 Conflicts of Interest

Individuals serving in public office, whether elected, appointed or civil servants, all have histories that may include other interests. This situation can sometimes create difficult choices between an individuals personal interest and the interest of the public. Conflicts of interest are often defined in terms of receiving a personal benefit as a result of ones position or decision, particularly a financial benefit. Conflicts may arise as a policymaker receives gifts or honorariums, in representing clients, or in doing business with the state in which they make decisions on public policy. The law will also require individuals not to vote in situations where a potential conflict of interest exists. The policymakers must state the conflict prior to a vote and ask to excuse themselves.
5.4.5 Personal Financial Disclosure

The requirement of public leaders to disclose their personal financial interests includes details on their occupation, any financial interest in businesses or other sources of income, any leadership or board positions with corporations or properties they hold. This information is to help determine whether a conflict of interest might exist if these interests come into conflict with decisions made in the public trust. This information is also required of the leaders spouse and dependent children.
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5.4.6 Gift Restrictions

The category of gifts received from political lobbyists or supporters is one of the most common areas restricted in ethics laws. Most states allow some level of giving gifts, recognizing the difficulty of defining what is a gift and trying to assess the value of such gifts. Options include zero tolerance which strictly prohibits gifts of any kind or value. Another option is to place a specific monetary value on gifts received or total amount from a supporters or lobbyist in a given year. A third option is to restrict gifts only if they are viewed as influencing official action.
5.4.7 Oversight
There are two basic mechanisms for overseeing ethical conduct in government: constitutional commissions and committees. The ethics and integrity commission is a constitutional commission composed of citizen or public officials or other public leaders who oversee political leaders and public employees compliance with ethics laws and rules. Commissions investigate ethics complaints and determine penalties or give advisory opinions. They may also adopt regulations to administer ethics laws, provide ethics training, and receive financial disclosure and lobbyist reporting documents. Ethics committees are generally self-regulating bodies whose members are legislators. This is a means of internal oversight provides for by legislators who determine compliance with ethics laws and rules. These committees deliberate on accusations of ethical violations of County government members and prepare codes of ethics for the members. Procedures for the ethics committees are the usually as follows: A complaint is submitted in writing to the chair of the committee. Following a preliminary investigation, if necessary, there is a formal hearing. The committee can then make a recommendation to resolve the conflict. The recommendation is then sent to the legislative body for a vote. The legislative body can accept, dismiss, or alter the recommendation. If the recommendation is for expulsion or removal, it requires a 2/3 vote.
5.4.8 Vetting Processes

To hold public office, we recommend that individuals not only have to be competent but also need to be persons of integrity. The qualities of public officers fall into two basic categories, capacity and integrity. Capacity refers to the qualities that enable personnel to fulfil the technical tasks of the institutions mandate. This is evaluated by a persons qualifications, such as general education and professional training,
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professional experience and competence, as well as her or his physical and mental aptitude. Integrity relates to the qualities that enable a person to fulfil his or her mandate in accordance with fundamental human rights, professional and rule-of-law standards, including a persons financial propriety. Vetting is an important aspect of determining capacity and integrity. Vetting can be defined as assessing integrity to determine suitability for public employment. Integrity is measured by a persons conduct. Vetting processes should, therefore, be based on assessments of individual conduct. Vetting processes aim at excluding from public service persons with serious integrity deficits in order to establish civic trust and legitimize public institutions. The citizens are unlikely to trust and rely on individuals with serious integrity deficits, which would fundamentally impair the Countys capacity to deliver its mandate. We recommend that the legislative framework on the vetting process should provide for vetting by the Ethics and Integrity Commission of all persons seeking to be elected or appointed to the County Executive Committees and provide for the basis of the assessment, in terms of requirements and parameters of integrity standards and the vetting mechanisms and procedures. The legislation should provide for the following to enable effective vetting: The classification of information, assets, and sites, and exempts the vetting procedure from principles of the privacy law. Entitlement to the Ethics and Integrity Commission to collect personal information not only from vetting candidates themselves, but also from other people and organizations. Such disclosures by others of personal information about the candidate should not be a breach of law A set of administrative directives and guidelines that give standard procedures to be used across county governments The rights of candidates including to be informed of the results of the background check and if a clearance has been denied of the grounds of a criminal record, or as a result of financial inquiries, the candidate should be shown the information on which the decision was based, and should have the opportunity to correct any inaccuracies The right to appeal in case of denial of clearance
5.4.9 Qualifications for Election/Appointment

A person is eligible for election as a member of a County Assembly or Governor/ Deputy Governor if the person is registered as a voter; satisfies any educational, moral 91
and ethical requirements prescribed by the Constitution or an Act of Parliament; and is either nominated by a political party or is an independent candidate supported by at least five hundred registered voters in the ward concerned. The Constitution has introduced measures such as allowing independent candidates to run in local elections, and the principle that no more than two thirds of members of representative bodies in the county shall be of the same gender, and limiting the length Box 5.9: County visit submissions of term for the County Executive Governor: Committee to two five year terms. Degree: in public administration,
economics, humanities, social sciences, community development 10 years experience Elected by majority, not simple majority Headed a government department and show what unique contribution has been done in that department Responsibilities/Accountability Link between county and national government Monthly statements by the governor Formation of a vetting committee headed by the governor Question answer sessions with the public, county speech at legislated time Information section in the governors office Have a spokesman to tell people over the radio on the goings-on in the county. Through chiefs when disseminating information Have face to face forums with the governor to answer public questions Deputy Governor: At least 5 years experience in public or private sector, nominated by governor and approved by County Assembly, demonstrated past success in project management, Computer savvy, proven track record of involvement in community projects, Should be a technocrat
There were varied submissions on the nature of educational and other qualifications required of the Governor, Deputy Governor and County Executive Committee members. One of the arguments that has been put forward is that setting educational qualifications would be unconstitutional since the Bill of Rights provides that every citizen has a right to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office . The Constitution however does allow for limitation of rights to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and political rights are not among those rights that cannot be limited . Secondly the Constitution expressly provides that qualifications for election include any educational moral and ethical requirements prescribed by Parliament or legislation . It is important here to note that the requirements of competence and suitability, which is one of the principles of leadership and ethics, can
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only be operationalized 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 which are elaborated in a separate section of this chapter. It is our recommendation that the minimum educational and professional qualifications of the Governor, Deputy Governor and Executive Committee members be as follows: Be fluent in Kiswahili and English; Be holder of at least a first degree from a recognised university; Satisfy the leadership and integrity standards set out in Chapter Six of the Constitution and undergo vetting as provided for under the Ethics and AntiCorruption Bill/Act. Provide the Independent Electoral and Boundaries Commission with an original certificate of clearance from the Ethics and Anti-Corruption Commission prior to registration as candidates. Provide the Independent Electoral and Boundaries Commission with a certificate of good conduct 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.
5.4.10 Election of Governor

The Constitution currently provides for elections for County Governors and County Assembly members on the same day as those for the President and members of Parliament the second Tuesday of August of every fifth year. Separating elections of national and county political leaders presents logistical difficulties, but has the advantage of allowing for local concerns to predominate during the county electoral cycle and county leadership to function more independently of higher authorities, and also generally raises the profile of County government. If the local electoral system does not secure a real competition among local politicians, devolution might end up strengthening the hands of local political strongmen. Political competition among local politicians increases the chances for vulnerable groups to be included into the decision-making processes. More importantly, greater and more meaningful political competition for local political offices also results in increased level of uncertainty among local political elites, in that citizens have a means of control over elected officials through the presence of viable electoral alternatives, and this enhances the responsiveness of these elites to the concerns of the citizenry.
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The extent to which citizens voices are effective through the electoral system at county level will also depends on factors beyond the citizens control. Representative democracy provides citizens with an opportunity to vote, but without certain mitigating features, citizens are often forced to accept the agenda set by political parties. Party system features in a particular county will mainly depend on elements such as the number of parties competing in the county elections, rules governing the financing of parties, rules governing the participation of disadvantaged groups, such as women or certain minority groups, and the availability of parties based on ethnicity or religion. The representation of a broad range of groups and interests in governments and political processes more generally, is not only symbolically important, but it also improves the quality and legitimacy of decisions. The general principles that therefore should guide design of electoral system, as well as the process of choice itself are6: representation, transparency and inclusiveness.
5.4.11 Representation
The basic task for an electoral system is to translate votes into seats and to transform the expressed will of the voters into people who will represent it. There are many views of what fair representation is geographic representation, descriptive representation, ideological or party political representation but regardless of the view that is taken in each country, representation as a principle is a key guide when designing the most suitable electoral system.
5.4.12 Transparency
It is important that the mechanisms of the electoral system be as transparent as possible and known to both voters and political parties and candidates well in advance in order to avoid confusion and distrust in the results they produce at elections. The process through which the choice of electoral system is arrived at also benefits from transparency for the same reasons. If stakeholders arguments and influence over the process of review, reform or adoption are presented in an open way, the process and the electoral system arrived at will have a greater chance of being seen as legitimate.
5.4.13 Inclusiveness
The electoral system will have a greater chance of being accepted as fair and legitimate if it is considered to work in an inclusive manner. This means not only that the electoral law allows as many citizens as possible to vote (including inclusive suffrage, making sure that the system is easily understandable, and assuring access for all to the polling station), but also that the mechanisms of the electoral system do not overtly discriminate against any one group in society, minority or otherwise. 94
From the views given by the public on election of the Governor, it was clear that there was consensus that a plurality/majority 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. The First Past The Post (FPTP) system is the simplest form of plurality/majority system, using single member districts and candidate-centred voting. The voter is presented with the names of the nominated candidates and votes by choosing one, and only one, of them. The winning candidate is simply the person who wins the most votes; but not necessarily an absolute majority of the votes. Majoritarian systems7 try to ensure that the winning candidate receives an absolute majority (i.e. over 50 per cent). The systems in essence makes use of voters second preferences to produce a winner with an absolute majority if one does not emerge from the first round of voting. The first round is conducted in the same way as a single-round plurality/majority election using FPTP. A candidate or party that receives a specified proportion of the vote is elected outright, with no need for a second ballot. This proportion is normally an absolute majority (over 50%) of valid votes cast, although a different figure can be used to ensure majority. If no candidate or party receives an absolute majority, then a second round of voting is held and the winner of this round is declared elected. The details of how the second round is conducted vary in practice from case to case. The most common method is for it to be a straight run-off contest between the two highest vote winners from the first round; this is called majority run-off. It produces a result that is truly majoritarian in that one of the two participants will necessarily achieve an absolute majority of votes and be declared the winner.
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DISADVANTAGES Absolute Majority Simple Majority (FPTP) Absolute Majority
Table 5.3: Advantages and Disadvantages of the Simple and Absolute Majority Electoral Systems
ADVANTAGES
Simple Majority (FPTP)
FPTP systems are particularly praised for being simple to use and understand. A valid vote requires only one mark beside the name or symbol of one candidate. Even if the number of candidates on the ballot paper is large, the count is easy for electoral officials to conduct. It promotes a link between constituents and their representatives, as it produces a legislature made up of representatives of geographical areas. Elected members represent defined areas of cities, towns, or regions rather than just party labels. It allows voters to choose between people rather than just between parties. It gives a chance for popular independent candidates to be elected. This may be particularly important in developing party systems, where politics still revolves more around extended ties of family, clan, or kinship and is not based on strong party political organizations. It advantages broadly-based political parties. In severely ethnically or regionally divided societies, FPTP is commended for encouraging political parties to be broad churches, encompassing many elements of society, particularly when there are only two major parties and many different societal groups. It excludes smaller parties from fair representation, in the sense that a party which wins approximately, say, 10 per cent of the votes should win approximately 10 per cent of the legislative seats. In the 1998 general election in Lesotho, the Basotho National Party won 24 per cent of the votes but only 1 per cent of the seats. This is a pattern which is repeated time and time again under FPTP. It excludes minorities from fair representation. As a rule, under FPTP, parties put up the most broadly acceptable candidate in a particular district so as to avoid alienating the majority of electors. There is strong evidence that ethnic and racial minorities across the world are far less likely to be represented in legislatures elected by FPTP. It excludes women from the being elected. The most broadly acceptable candidate syndrome also affects the ability of women to be elected to legislative office because they are often less likely to be selected as candidates by male-dominated party structures. It can encourage the development of political parties based on clan, ethnicity or region, which may base their campaigns and policy platforms on conceptions that are attractive to the majority of people in their district or region but exclude or are hostile to others. This has been an on-going problem in African countries like Malawi and Kenya, where large communal groups tend to be regionally concentrated. The country is thus divided into geographically separate party strongholds, with little incentive for parties to make appeals outside their home region and cultural political base. It exaggerates the phenomenon of regional fiefdoms where one party wins all the seats in a province or area. If a party has strong support in a particular part of a country, winning a plurality of votes, it will win all, or nearly all, of the seats in the legislature for that area. This both excludes minorities in that area from representation and reinforces the perception that politics is a battleground defined by who you are and where you live rather than what you believe in.
Majoritarian systems can encourage diverse interests to coalesce behind the successful candidates from the first round in the lead-up to the second round of voting, thus encouraging bargains and trade-offs between parties and candidates. It also enables the parties and the electorate to react to changes in the political landscape that occur between the first and the second rounds of voting. Majoritarian systems allow voters to have a second chance to vote for their chosen candidate, or even to change their minds between the first and the second rounds. Majoritarian systems lessen the problems of vote-splitting, the common situation in many plurality/majority systems where two similar parties or candidates split their combined vote between them, thus allowing a less popular candidate to win the seat.
Majoritarian systems place considerable pressure on the electoral administration by requiring it to run a second election a short time after the first, thus significantly increasing both the cost of the overall election process and the time that elapses between the holding of an election and the declaration of a result. This can lead to instability and uncertainty. Majoritarian systems also place an additional burden on the voter in terms of time and effort required to cast the vote as the voter has to make it to the polling station twice, and sometimes there is a sharp decline in turnout between the first round and the second. Majoritarian systems share many of the disadvantages of FPTP. Research has shown that in France it produces the most disproportional results of any Western democracy, and that it tends to fragment party systems in new democracies. One of the most serious problems with majoritarian systems is its implications for deeply divided societies. Losers in the run-off phase have little incentive to play the democratic opposition and this is often a trigger for conflict e.g. in Angola and the Congo.
ADVANTAGES Absolute Majority It leaves a large number of wasted votes which do not go towards the election of any candidate. This can be particularly dangerous if combined with regional fiefdoms, because minority party supporters in the region may begin to feel that they have no realistic hope of ever electing a candidate of their choice. It can cause vote-splitting. Where two similar parties or candidates compete under FPTP, the vote of their potential supporters is often split between them, thus allowing a less popular party or candidate to win the seat. It may be unresponsive to changes in public opinion. A pattern of geographically concentrated electoral support in a country means that one party can maintain exclusive executive control in the face of a substantial drop in overall popular support. Finally, FPTP systems are dependent on the drawing of electoral boundaries. Boundary delimitation may require substantial time and resources if the results are to be accepted as legitimate. There may also be pressure to manipulate boundaries by gerrymandering or malapportionment. Simple Majority (FPTP) Absolute Majority
DISADVANTAGES
Simple Majority (FPTP)
It provides a clear-cut choice for voters between two main parties. The inbuilt disadvantages faced by third and fragmented minority parties under FPTP in many cases cause the party system to gravitate towards a party of the left and a party of the right, alternating in power. Third parties often wither away. It gives rise to single-party governments and coalition governments are the exception rather than the rule. It gives rise to a coherent opposition in the legislature. It excludes extremist parties from representation in the legislature. Unless an extremist minority partys electoral support is geographically concentrated, it is unlikely to win any seats under FPTP.
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There following are the proposals made on the majoritarian proportions needed for the election of the Governor during the county hearings: 1. Option One: An Absolute majority of 50% + 1 votes 2. 3. Option Two: An Absolute majority of 50% + 1 votes and at least 25% votes cast in half of the ward in the county Option Three: A simple majority and at least 25% of votes cast in half of the wards in the county 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. These options have to be weighed in light of the advantages and disadvantages of a simple FPTP and Majoritarian plurality system as illustrated in the Table 5.3 However in order to comply with the constitutional provisions of Article 180(4) in this regard, and to facilitate political stability, we recommend that the Governor be elected by a simple majority of votes cast in the county.
Box 5.10: County visit submissions on county executive committee mandate Link between County and National Government Monthly statements by the Governor Question answer sessions with the public, county speech at legislated time Information section in the Governors office Have a spokesman to tell people over the radio on the goings-on in the county. Through chiefs when disseminating information Have face to face forums with the Governor to answer public questions
5.4.14 Appointment of Executive Committee Members

The composition of the executive committee can follow two different modes: the first is composition along party lines where the Governor chooses members mainly along party lines and the political affiliation of the member is the principal factor taken into account. The second mode is where the composition is prescribed by law and it is not left to the political process or wishes of a Governor. The Constitution states that one of the principles of governance is inclusiveness and one of the principles of devolution is to foster national unity by recognizing diversity. It is also clearly stated that the law must ensure that the community and cultural diversity of a County is reflected in County Executive committee; and also protect minorities within counties. There is thus a clear constitutional requirement for a balanced Executive committee composed of representation from different regions, ethnic or religious groups from a county. The CoK 2010 also requires approval of county executive appointments by the County Assembly.
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Granting power of selection of Executive Committee members exclusively to the Governor may lead to a situation where all members of the Executive Committee are from the same gender, ethnicity, or regional area. In counties with multiple ethnic groups it is less likely that members of minority groups will hold the position of Chief Executive and by extension, in the Executive Committee. Approval by County Assembly may also not fully address the requirement of a balanced Executive Committee, especially in circumstances where the majority party in the County Assembly is also the Governors party. We therefore recommend two Box 5.11: County visit submissions on recall additional safeguards. The first issues safeguard is for the legislative Enact provisions for non-performing framework to specifically provide for Governors a pluralistic Executive Committee in Removal by resolution of County terms of gender, minorities and region Assembly representation. This system will be By the Governor upon approval by the County Assembly. particularly effective where there are Independent Commission to verify and multiple, dominant ethnic or religious make recommendations removal. groups because it ensures a balanced Use the County Service Committee representation within the Executive Impeachment Committee Committee from different groups. In Speaker to act as Interim Governor terms of mode of appointment we do not recommend a competitive process as this will unreasonably fetter the discretion and responsibility given to the Governor to ensemble a team that is accountable to him or her. 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. Mandate and Functions of the County Executive The main intention of the provisions of the Constitution is to create an autonomous County Executive, controlled by locally elected representatives. Executive authority is now constitutionally vertically divided between the central government and the County governments, ensuring political autonomy and governance for County governments in defined geographical areas. The provisions on the County Executive will be key in implementing the governance aspects of devolution that address the development of democracy, the legitimacy of authority, and the accountability of political leaders at County level. The Executive arrangements will also have a key bearing on the functional aspects of devolution in terms of ensuring efficiency in County administration and service provision. 99
The Governor and Deputy Governor are the Chief Executive and Deputy Chief Executive of the County respectively, and the Constitution states that the members of a County Executive Committee are accountable to the County Governor for the performance of their functions and exercise of their powers. A County Executive Committee has the following functions: a. to implement County legislation; b. c. d. to implement, within the County, national legislation to the extent that the legislation so requires; to manage and coordinate the functions of the County administration and its departments; and to perform any other functions conferred on it by the Constitution or national legislation.
A County Executive Committee may prepare proposed legislation for consideration by the County Assembly and shall provide the County Assembly with full and regular reports on matters relating to the county. These functions of the County Executive Committee are in relation to the functions and powers given to County Governments under the Fourth Schedule of the Constitution. The most important consideration in operationalizing the County Executive functions is that the legal framework should focus on the role of the 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. It is therefore recommended that the roles of the Executive Committee will be as follows: political responsibility, decision-making, policy formulation and oversight, and the establishment of county administration establishment. The key areas which the legislation should address in this respect are: 100 The Processes of policy formulation and approval (including legislation) Budget formulation and approval processes Procedures for the establishment of the county administration Delegation powers Access to information and public hearings Liability Conflict of interest and disclosure requirements
5.4.15 Political Accountability

Political accountability arises as a result of the fact that membership in the County Executive are appointed through political processes, and their primary role is to meet the political responsibilities as representatives of those areas for which they have been elected or appointed. The Governor and Deputy Governor will be required to gain office by putting before the people a political platform that is found acceptable by a majority of the voters. Accountability is the obligation on the part of public officials to report on the usage of public resources and answerability for failing to meet stated performance objectives. Accountability always operates together with transparency, which is the unfettered access by the public to timely and reliable information on decisions and performance in the public sector. Political accountability is also sometimes referred to as democratic accountability and refers to accounting to the electorate about the way government business is conducted. This form of accountability usually refers to political leaders being held accountable through local elections and impeachment procedures, but it also refers other political aspects such as campaign finances, performance evaluation, and so on. This will need to be regulated through the devolution framework legislation and also by national elections and political parties legislation.
5.4.16 Democratic Decision Making

The decision-making duty arises once the Executive Committee is in office, and it has to determine the wishes of the people before preparing and implementing policies and plans for the county. Here the Governor especially will be faced with political decisions that may not be acceptable to a section of the electorate he or she represents, and it is his or her duty to make decisions for the betterment and development of the county as a whole. Balancing various competing interests will be an integral part of the decision-making functions of the Executive Committee. The following key principles in decision making need to be reflected and detailed in the framework legislation: The responsibilities and relationships of the Executive Committee in setting strategic direction, supervising actions required to implement the direction and the responsibility to manage and safeguard the countys resources. Collective responsibility of the Executive Committee for the policies, management and actions of the County government administration. Opportunities for public input to help identify needs and set priorities, comment on proposed policies and provide information and feedback
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Effective communication of the Executive Committee decisions in a manner that provides information with clarity and accuracy.
5.4.17 Policy Formulation and Oversight

Policy formulation is a major function of the Executive Committee and it is this function that will guide political direction, internal administrative functions, expenditures, County legislation, the Executive Committees processes and procedures and the provision of services. Financing the operations of the County will be a basic responsibility of the Executive Committee in implementing policies and laws, and will include budget formulation and scrutiny as well as responsibility for all expenditure incurred by the County government. The operationalization of policy making will require the following aspects to be clearly detailed in the legislation: Policy initiation and advance consultation. This will include details on the County structures that can initiate policy, the steps in this process and approval mechanisms. It will also involve public input in terms of discussion papers, public forums and advisory committees and finally progress reviews. Preparation of the policy documents particularly the requirement for written submissions and proposals, the analysis processes and the format of Executive committee documents and decisions. The processes and format of communication of the policy decisions and documents.
5.4.18 Establishment and Supervision of County Administration

The Constitution has given County governments the power to establish staff positions in the County, and to hire, discipline and remove staff in those positions. This is primarily an Executive function and legislation will provide the standard norms and procedures to be followed by all counties in this respect. The County administration will be the organizational units created for the purposes of managing the functions and services of the County The Governor shall delegate to each county executive member the responsibility for one or more departments of the county government. It is also expected that the Governor will appoint one principal secretary as the head of administration for each department. The officer shall be the accounting officer of the department and 102
5.5
Restructuring of the Provincial Administration
4.5.1 National Administration

The origins of Provincial Administration can be traced to the colonial era where it was used by the colonial authorities as a formal mechanism to consolidate power. During this period, its main functions were to collect taxes, maintenance of law and order and pacification of the natives in the colony. It also provided judicial services and participated in legislative matters in Local Authorities. As discussed in chapter 2, the Provincial Administration was an instrument of control during the colonial period. The provincial administration has never been provided for by the Constitution or any other law and has been operating under a Presidential executive order since the 1960s. It has been run as a department under the Office of the President. In the public domain, Provincial Administration is a uniformed cadre of about 12,344 officers stationed in all districts, divisions, locations and sub-locations. Articles 262 (the Sixth Schedule) section 17 of Constitution 2010 provides that: within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution. During the county public consultation, the majority of the people acknowledged the important role of village elders, assistant chiefs and chiefs in dispute management and resolution. This suggests that the role played by this lower cadre is important to the people and should be catered for in a county administrative system. The TFDG was mandated to recommend the restructuring of the Provincial Administration to accord with and respect the system of devolved government established under the Constitution. In view of Article 262 (Sixth Schedule) section 15 of the Constitution the system of Provincial Administration should be restructured to accord and respect the structure of county administration. The restructuring of the Provincial Administration should be undertaken as a consultative process between the national government and county governments. This will ensure that there is no duplication of bureaucracies and staffing. Further, it is recognized that National Government has its constitutionally assigned functions and shall determine the structures for delivering on its mandate. In doing so, these structures must accord to and respect the county administration as proposed in the devolution legislation.
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also accountable to the county assembly for the financial affairs of the department. Units in each department shall be headed by senior professionals with qualifications that may be prescribed through national regulations or norms and standards. This is important for ensuring that service delivery is in accordance with county and national standards. The most important departments that may be established are those that deliver health, agriculture, planning and finance, environment and natural resources, administration, infrastructure (roads, public works, transport, housing and energy), social services, trade and industry and legal affairs. It is recommended that county governments shall decentralize to three units below the County, namely the sub-county, the ward and the village as illustrated in Figure 3.2. These should serve as units of administration, service delivery and citizen participation. County government administrative and technical staff shall be posted mainly to the sub-county and ward levels to work under administrators at each level. The village will be the lowest service delivery point in a county and managed by a village administrator with the assistance of village elders. It is proposed that County Assembly members constitute themselves into committees to supervise the county executive at the sub-county and the ward levels under legislation to be passed by County Assemblies. Whereas Counties may have the liberty to structure the village level as appropriate, both Sub-Counties and Wards will be applicable across the Republic of Kenya once the delimitation has been done and accepted nationally. These units shall be legislated for ensuring efficient service delivery and effective participation of citizens as embedded in the Constitution. In establishing a village unit, the County Assembly shall be guided by population size, community of interest; and geographical and communication factors. For purposes of delineating and establishing village units, the assemblies shall formulate local guidelines for the delineation and establishment of the village units taking into account national guidelines as may be prescribed by Parliament. The Sub-County units shall be administered by qualified Sub-County Administrators responsible for the coordination, management and supervision of the general administrative tasks; while the wards shall have a Ward Administrator to coordinate, manage and supervise the general administrative tasks in the wards. The Ward Administrators shall be answerable to the Sub-County Administrators. The village units established by County Governments shall be administered by village administrators assigned by County Governments. A village is an administrative unit created below the ward to serve as a unit of service delivery and citizen participation. In delineating villages, regard shall be given to the existing sub-locations to ensure cost effective administration.
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4.6
Checks and Balance
The provisions of the Constitution also provide the checks and balances between the County Executive and County Assembly. The County Executive Committee shall provide regular reports to the County Assembly, and the County Assembly may exercise oversight and approve the plans and policies of the County Executive. This appears to be a weak definition of oversight. It is therefore recommended that there be more formal oversight mechanisms in the legal framework and County Assembly standing orders to enable County Assemblies and the public to oversee Executive policy implementation and service delivery, and hold the County bureaucracy accountable for their performances. It is also recommended that the Governor be given veto powers over legislation passed by the County Assembly as a check against unreasonable and unlawful County Assembly operations. The power to veto is the power given to the Governor to withhold assent to a bill passed by the County Assembly. Veto powers are exercised if a bill passed by the County Assembly is criminal, illegal or in violation of the Constitution. The Governor will be required to return to the County Assembly any such law so presented to him, and may transmit therewith any amendments, which he may recommend. The legislation will therefore also require the Governors assent to all Bills passed by the County Assembly.
4.7
Removal from Office
The Constitution provides for circumstances when that the office of a Governor will becomes vacant if he or she dies; resigns, in writing, addressed to the speaker of the County Assembly; ceases to be eligible to be elected County Governor; is convicted of an offence punishable by imprisonment for at least twelve months; or is removed from office for the following reasons: gross violation of the Constitution or any other law; where there are serious reasons for believing that the Governor has committed a crime under national or international law; abuse of office or gross misconduct; or physical or mental incapacity to perform the functions of office of County Governor.
If a vacancy occurs in the office of County Governor, the deputy County Governor shall assume office as County Governor for the remainder of the term of the County Governor. If a vacancy occurs in the office of County Governor and that of deputy County Governor, or if the deputy County Governor is unable to act, the speaker of 105
the County Assembly shall act as County Governor and an election to the office of County Governor shall be held within sixty days after the speaker assumes the office of County Governor.
Figure 61: Recommended Functional and Competency Assignment Process
Legislation will elaborate on the procedure of removal of a County Governor and since the Governor is elected through a majority direct vote and the legitimacy that this implies, it also means that removal can only be by a special procedure and supermajority decision in an impeachment procedure. This will require an absolute majority of the members of the County Assembly to support the impeachment of the Governor. The framework legislation will provide for the procedures of impeachment. If a vacancy arises in the office of the County Governor, the members of the County Executive Committee also cease to hold office. Legislation should provide for additional circumstances when Executive Committee members should leave office. Considerations should be given as to whether the Governor has the power to remove them at will, or whether the County Assembly can pass a vote of no confidence in the Executive Committee. There also needs to be a legitimate process for removing corrupt and incompetent Executive Committee officials (through public referenda, formal financial reviews, and so on) for good governance. The Constitution specifically states
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that in such circumstances, legislation will provide for the procedures for the removal of and for suspension of County Executive Committees.
4.8
Conclusions on the County Executive
The Executive will be responsible for the implementation of laws in the County government, and will have political responsibility and accountability to the County Assembly and citizens. We recommend two ways of decentralising Executive functions. The first is by way the legislative framework providing for delegation of functions to Executive Sub-Committee and the second 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. We recommend that legislation provides for the proposed minimum educational and professional qualifications of the Governor, Deputy Governor and Executive Committee. 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 ethics that will 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). There is thus 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 those 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,
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decision making, policy formulation and oversight, County administration establishment and providing checks and balances by way of veto powers of the over legislation passed by the County Assembly. It therefore proposed that Governor be granted powers to assent to all Bills passed by County Assemblies. 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.
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Chapte
Functional Assignment for Effective Public Service Delivery in Kenya

6.1
Introduction
ealization 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 a clear and transparent effort to assign functions, competencies and responsibilities to multiple tiers of government and administration, non-state actors and private companies to fulfil them 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. This is key to effective and efficient utilization of resources for public service delivery. The way in which functions, competencies/responsibilities, are structured and organised affects not only what lower levels of government do, but also how well each level of government and the public sector as a whole actually responds to the needs of the citizenry. One of the key challenges in respect of public service delivery under the past constitutional dispensation was the lack of clarity in assigning of responsibility as well as lack of awareness on the part of citizens as to exactly which level of government was responsible for a service. A key unfortunate consequence of this was discordant policy frameworks, laws that said different things about the same issue, and multiple institutions competing for limited financial, human and other resources to deliver the same services. This resulted in lack of adequate or non-delivery of public services. Those that were delivered were achieved at high costs to the citizens. Key issues in respect of service delivery based on the functional assignment are as follows:
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1. 2. 3. 4. 5. 6. 7.
Achieve clarity in the functional assignment through unbundling them and assigning competencies between the national and county governments; Determine the service level gaps in respect of each competency; Determine the expected performance level; Assign funds to levels of government according to their service delivery mandates; Identify the capacity constraints; Develop a short, medium to long term capacity building programme 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.
6.2
Constitutional Provisions on Functional and Competency Assignment
6.2.1 The General Framework

Article 6(2) of the Constitution of Kenya, 2010 establishes national and county governments as distinct, but interdependent each with its own functions. Article 6(2) also requires that both levels of government relate to each other in a consultative and cooperative manner. The functions of the county governments are provided for in Article 185, Article 186(1) and listed in Fourth Schedule. Article 21 (Implementation of Bill of Rights), Article 62(2) & (3) (Vesting of Land on County Governments), and Article 235 (County Public Service), amongst others, delineate further functions, and imposes obligations on both levels of government in the execution of their mandates. County governments as constituted under the CoK 2010 clearly have more responsibility and authority than local governments under the previous constitution. The CoK 2010 through provisions of Article 186 further classifies the functions of county governments as exclusive, concurrent or residual. A review of the functions as articulated in Schedule 4 of the CoK 2010 points to the following:
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national government is largely assigned policy, regulatory and capacity building functions; county governments are assigned the service delivery burden. more critically, Article 43 functions are a major mandate of county governments; and where the functions are not explicitly distinguished as exclusive or concurrent, these are classified as residual and assigned to the national government.
The functions assigned to the national and county governments in the CoK 2010 are generally broad. This is a trend observed in other countries. Therefore, to effectively implement the constitution, it will be necessary to specify more explicitly the public service delivery activities over which each level of government will be responsible. This process of assisting ministries, departments and agencies (MDAs) to provide clear definitions of each functional category and explicitly specify the functional areas over which each level of government will have responsibility is generally referred to as functional and competency assignment. In the absence of this, issues of human resources, structure of administration, and the financial implications of devolution cannot be fully resolved. In the decision-making process for making these clarifications regarding which specific activities are to be devolved from the national government to county governments MDAs are better informed on the modes of service delivery and therefore must be involved in the process. Indeed, all MDAs are currently engaged in a process of reviewing policies, laws and regulations to ensure that their operations comply with the CoK 2010. This process is, however, not guided by a common methodological framework, but is approached from a variety of perspectives. Lessons from other jurisdictions such as Indonesia, Papua New Guinea and India, suggest that without a common framework, the outcome of the work of MDAs is likely to be a confusing array of functional assignments and could result in failure of the new, highly anticipated system of government. It will result in duplication of services, ineffective services, unfunded services, increased contestation, and wastage in funds expenditures. In the worst cases it results in macroeconomic imbalances with negative consequences for the wider economy. The latter situation needs to be avoided.
6.2.2 Foundational Principles

Two different dimensions of the Constitution are relevant to functional assignment. The first dimension is the articles that relate to the sharing of legislative powers and service delivery functions between levels of government. The second dimension is the articles on the Bill of Rights. 111
6.2.2.1 National Values and Principles of Governance Article 10 articulates the national values and principles of governance, including national unity, sharing and devolution of power, democracy and participation of the people, human dignity and social justice, good governance, integrity, nondiscrimination, accountability and sustainable development amongst others. These values and principles bind all state organs, state officers, and public officers in the execution of their mandates. Therefore, when assigning functions and competencies, it will be important to carefully consider how the process and the results reflect and are informed by these national values. 6.2.2.2 The Bill of Rights Among the key objectives of devolution are self-governance, equity, decentralized delivery and easy accessibility of services and protection of individual rights. These matters are at the heart of Chapter 4 of the Constitution on the Bill of Rights that provides the fundamental framework for social, economic and cultural freedoms. At the heart of the Constitution is the Bill of Rights (Chapter 4), which creates the framework for social, economic and cultural policies. Most relevant for the functional assignment task is Article 43, which states: 43. (1) Every person has the right (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education. (2) A person shall not be denied emergency medical treatment. (3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants. While Article 21 makes it a duty of the Government to adopt policies to achieve the objectives of Article 43, Article 20 recognizes that the Governments resources may limit its ability to fully provide the services implied in the Article 43. Nevertheless, the process of functional assignment needs to keep these Constitutional prerequisites in 112
mind as it proceeds. The most important practical implication of this is that if Kenyan citizens are already receiving some level of public services from the Government, a continuity of those services ought to be assured. This should be a primary objective of the Government in the devolution process since if current services are substantially reduced, it will undermine the hopes of the citizens for the new approach to governance in Kenya and will likely lead to re-centralization of service delivery functions. While Article 20(5) recognizes that the Governments resources may limit the ability to fully meet the provisions of Article 43, Article 21 makes it mandatory for the Government to develop and implement policy and legal frameworks to achieve the citizens economic and social rights. In this regard, the process of functional assignment must keep these Constitutional prerequisites in perspective . The most important practical implication of this is that if Kenya citizens are already receiving some level of public services from the Government, a continuity of those services ought to be assured. This should be a primary objective of the Government in the devolution process since if current services are substantially reduced, it will undermine the hopes of the citizens for the new approach to governance in Kenya and might lead to calls for re-centralization of service delivery functions. 6.2.2.3 Objects and Principles of Devolved Government The objects and principles of devolved government are clearly spelt out in Articles 174 and 175. While both these provisions are important, without minimizing the import of any of them, we take note of Article 174 (h), which says that one of the objects of devolution of government is, to facilitate the decentralization of State organs, their functions and services, from the Capital of Kenya. Read together with Article 1(4), which provides that the sovereign power of the people shall be exercised at the national and county levels, it can be argued that when national government is delegating its functions and services, it can only do that through county governments. It cannot bypass them.
6.3
Sharing of Functions and Powers
The respective functions and powers of the national and county governments are set out in the Fourth Schedule of the Constitution of Kenya. Article 186 provides that where functions are conferred on both levels of government, those functions are concurrent. Functions that are not referred to in the Fourth Schedule are deemed to belong to the national government. The most substantial service delivery functions devolved to counties under the Fourth Schedule are concurrent; meaning that there will be considerable integration between
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the roles of national and county governments. Co-management of functions by the two levels of government together demands considerable coordination, including a very clear definition of what activities will be performed at each level. The functional assignment process set out in this chapter is intended to provide this kind of definition as well as set out the institutional foundations for how coordination should occur.
6.4
Interaction of National and County Laws
The CoK 2010 envisages that during the three-year transition period, not all assigned functions would be performed to the same extent by all counties. Section 15 of the Sixth Schedule on Transition Arrangements provides for a law to provide for the phased transfer of functions assigned under Article 185. This law is to deal with how the national government will facilitate the devolution of power, assist in building county capacity, criteria to be met before functions are assigned. The purpose of these provisions is to ensure that counties should not be given functions they cannot perform. The law-making powers associated with the functions listed in the Fourth Schedule are also shared between the county and national levels of government. Parliament can legislate on any matter (Article 186(4)). County assemblies can pass laws that are needed for them to perform their functions (Article 185(2)). Where the laws of a county conflict with those of the Parliament, the national law will prevail, if one of two conditions applies: a. the national law applies uniformly across the county, and covers a subject that cannot be effectively regulated by individual county laws, or requires uniformity to establish national laws and standards or policies, or is needed for a number of reasons including: maintaining national security or economic unity, protection of common markets, promoting economic activities across county boundaries, promoting equal opportunity or protection of the environment; or b. the national law is aimed at preventing unreasonable action by a county which would prejudice the economic, health or security interests of Kenya or another country, or would impede the implementation of national economic policy.
In other cases, county laws prevail over national laws in all circumstances. Some of the functions listed as county functions in the Fourth Schedule are currently performed by local authorities, but most are being carried out by line ministries represented at the district level and below. The process of transferring these functions to the counties is the main focus of this chapter.
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6.5
Financing of Functions
6.5.1 Devolved Functions and their Financing

The assigned functions of county governments can be financed in a variety of ways. The different sources of financing include: own-source revenues generated by the county government; each individual county governments share of the minimum 15% equitable share of national revenue allocated to the county level of government;
As well as potentially: equalization grants, tied to provision of basic services in marginalized areas; conditional grants, paid by the national government out of its share of national revenues (which may include performance grants); proceeds of borrowing.
In deciding how to define the assigned functions, it will be important to take into account the likely source of financing.
6.5.2 Delegated Functions and their Financing

Article 187 of the Constitution provides that one level of government may transfer a power or function to the other level of government, by agreement, provided that: (a) the function would be more effectively performed by the other level of government, and (b) that the transfer of the function is not prohibited by legislation. A delegated function remains the responsibility of the level of government to which the function was assigned under the CoK 2010. The level of government to which the function was originally assigned remains responsible for providing sufficient resources for the function to be carried out, and ensuring an adequate level of performance. These provisions suggest that the national government can negotiate with counties to carry out additional delegated functions, but it will need to make provision for financing these functions. It also seems to follow that delegation of additional functions would necessarily be asymmetrican additional function could not be delegated unless each individual county receiving the function has agreed. Although some services related to the functions listed in Part 2 of the Fourth Schedule of the Constitution are currently being delivered by the local authorities, most are delivered by line ministries through their offices in the districts. Furthermore, some services are currently delivered by departments and agencies a number of which are decentralized to the local level. It is therefore necessary to unbundle the functions 115
and to recommend, for each service area, whether it should be the exclusive power of county governments, a concurrent function or a residual of the national government. This assignment and clarification of functional responsibilities will be followed by definition of functions, an activity that is necessary for development of minimum service standards (MSS). The development of MSS or norms for service delivery is not only necessary to monitor the implementation of national policies, but for planning and budgeting by county governments. The process leading to decisions on the final assignment of functional responsibilities must involve all the relevant stakeholders, in the context of set principles and guidelines through which this process will be undertaken.
6.6
Functional Assignment and International Experience
Functional assignment is the first step in designing fiscal decentralization arrangements for any country. The golden rule of fiscal decentralization is that funding should follow functions (Bahl 1999) and so the first emphasis is on identifying which functions are to be devolved, followed by an appropriate amount of funding to finance them. Fiscal decentralization literature includes principles that should inform decisions about what functions should be devolved to each level, but is it less concerned with theorizing how those decisions should be made. In countries with a long history of devolved government, the distribution of functions will have developed over a long time, with the result that adjustments occur mainly at the margins. In this environment, issues of function assignment usually arise in the context of considering whether responsibility for a specific function (like quarantine, or a particular level of schooling) should be shifted from one level to another. The concept of function assignment as a formal process of devolution has developed fairly recently, as a number of countries have undertaken big bang style decentralization, where a highly centralized government system is decentralized across the board. This approach involves many sectors being devolved at the same time, and is considerably more complex. Recognizing this complexity, a number of these countries have adopted formal processes for managing the definition of functions and implementation of the route to devolving them.
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6.7
Principles to Guide Functional and Competency Assignment Decisions
6.7.1 Principle of Subsidiarity

The first principle in assignment of functions is that of subsidiarity -- i.e., that a public service function should be assigned to the lowest level of government that is capable of delivering the service (Shah, 2007:8 and UN-Habitat, 2007). The main economic benefits of decentralisation arise from citizens having a greater influence over decisions affecting the services they receive. This principle is at least implied in Articles 174 200 of the Constitution, which pertain to the creation of county government and the objects of devolution. Specifically, Article 174 includes the objective of giving the power of self-government to the people and enhancing their participation in making decisions (clause c) and recognizing the right of communities to manage their own affairs (clause d). Furthermore, Article 176(b) states that county governments should decentralize their functions and service delivery to the extent that it is efficient and practicable.
6.7.2 Transferability of Functions

The second principle is that of transferability of functions. The CoK 2010 recognizes the concept of transferability of functions from one level of government to another. It is recognized that there is no permanency in the assignment of functions. Article 187(1) of the constitution recognizes this principle and provides for transfer of functions. It notes that a function or power of government of one level of government may be transferred to another level of government by agreement between the two levels of government. Such transfer would be necessary first, if the function or power would be more effectively performed or exercised by the level to which it is being transferred; and second, if the transfer of the function or power is not prohibited by the legislation under which it is assigned by the fourth schedule. Because of this, it is possible to have one level of government transfer some of or aspects of some of its functions to another level of government. Such transfer is not done by the constitution but by the agreement of the different levels of government. The transfer could be by agreement or by national legislation. Sometimes the legislation transferring the functions may be preceded by an agreement. However, because the transfer is not by the constitution, the function constitutionally remains the function of the level of government to which the constitution assigns it. This means that the transferring agreement can be later cancelled or legislation amended or repealed and the power reverted to the level of government to which
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the function or power is constitutionally assigned. In this respect, Article 187(2)(b) points out that if a function or power is transferred from one level of government to another level, constitutional responsibility for the performance of the function or exercise of the power remains with the level of government to which the function is assigned by the constitution in general, and the Fourth Schedule in particular. A most important element of transferability of functions is the need to ensure that functions are not transferred without resources. Since resources follow responsibilities, any transfer of responsibilities must be accompanied by the necessary resources to be used to perform the functions. In this respect Article 187(2)(a) recognizes this need. It requires that if a function or power is transferred, from one level of government to another level of government, arrangements must be made to ensure that the resources necessary for the performance of the function or exercise of the power are transferred to the level of government to which the function is being transferred. This is a very important factor to bear in mind to avoid the possibility of one level of government undermining the ability of the other to operate by simply transferring to it functions without the accompanying resources. The importance of this must be underscored given our countrys experience with the independence constitution which was rendered dysfunctional through this kind of mechanisms.
6.7.3 Alignment of Capital and Recurrent Expenditures

A third principle is that of alignment of capital and recurrent expenditure responsibilities (Boadway and Shah, 2009:146). In situations where one level of government is responsible for capital functions (for example, the construction of new health facilities) but another is responsible for recurrent functions, the mismatch can undermine service delivery. In general, it is undesirable if one level of government is able to create a liability that another level bears responsibility for. In Kenya, operationalization of the Constituency Development Fund (CDF) starkly illustrates the failure to observe this principle. The CDF supports the construction of facilities, which then have to be provided with operational funding out of the limited recurrent budget of a national ministry. Sometimes, these facilities are developed without any reference to sectoral plans, but make demands for operational resources that cannot be availed. Thus, many review reports of the CDF have found facilities in place, which provide no service and hence no tangible development outcomes. However, capacity constraints also bear on decisions about responsibility for capital funding. Sub-national governments may lack the capacity to manage large and complex construction projects. These limitations do not necessarily need to be addressed by retaining responsibility at the national level, but capital funding may be provided in the transfers to county governments.
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6.7.4 Policy Formulation, Regulation, Standard vis-a-vis Implementation

The fourth principle draws a distinction between policy and standardization functions on the one hand, and implementation functions on the other. In an approach that follows this principle, the national level of government is assigned and performs the functions of formulating policy and setting national standards; while the subnational level and any other lower levels of government are assigned and perform mainly implementation functions. In such systems, more legislation is done at and by the national level of government while the sub-national level deals with the implementation of the legislations. Ordinarily, the legislations are done in very broad terms leaving room for each of the sub-national constituent units to be unique and different when filling in details and elaborating the legislations. Germany is one of the countries that follows this approach. An important feature of a country that follows this approach is a bicameral system of the national legislature. The second chamber of parliament is normally representative of the constituent units to provide them with a forum for participation in the legislative process at the national level. This gives them an opportunity to contribute to the formulation, debate and enactment of legislation that takes in to account the concerns and difficulties of implementation that are experienced by the constituent units. An analysis of the fourth schedule lists of functions of both the national and county levels of government indicates that to a large extent, this principle has been followed in the assignment of functions. For instance, in the areas of agriculture, housing, energy, veterinary services, health, education, protection of the environment and natural resources, land planning, consumer protection, the national economy and planning, labour, monetary and currency matters as well as language, the national level of government has been assigned the function of policy formulation and setting of national standards. Although in the area of health the national government has been assigned the function of running national referral health facilities, the main function in the health sector is to formulate health policy and to set health standards. Similarly, even though in the education sector the national government has been assigned the function of primary and secondary schools as well as the colleges and universities, its main role in education is the formulation of education policy, the setting of education standards, curricula, examinations and the granting of university charters. On the other hand the analysis of the lists shows that the county level of government has been assigned the function of implementation of the policies and standards
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formulated and set by the national level of government. In agriculture for example, the county governments are supposed to engage in the actual agricultural development in the areas of crop and animal husbandry, livestock, plant and animal disease control and fisheries. In the health sector the county governments have been assigned the bulk of the health responsibilities. They will be responsible for the county health facilities and pharmacies; ambulance services; promotion of primary health care; licensing and control of undertakings that sell food to the public; veterinary services; cemeteries, funeral parlours and crematoria; and refuse removal, refuse dumps and solid waste disposal. Largely therefore, this particular principle can be said to have played a major role in the assignment of functions in the CoK 2010.
6.7.5 Foreign Affairs, Defence and Macroeconomic Policy

The fifth principle guiding functional assignment draws a distinction between functions that deal with foreign affairs, defence, and macro-economic policy and management on the one hand; and social functions on the other. Whereas the national level of government normally deals with foreign affairs, defence, and macro-economic policy as well as currency functions; the sub-national levels of government are normally assigned what are referred to as social functions. Social functions include health care, education, housing, agriculture and security. They are sometimes referred to as the welfare functions. It is argued that these welfare functions being those that touch on the day to day lives of the people are better performed at the local level where the people live and operate their day to day affairs of survival and self-preservation. The national level of government which is normally far removed from the people is better placed to perform those functions that may appear to be a bit removed from the people. These are the policy formulation and regulation functions as well as the national standards setting functions. An analysis of the lists of functions set out in the fourth schedule indicates that to a certain extent this principle was taken into account in the assignment of functions. The first part of the list assigns to the national level of government the functions of foreign affairs, foreign policy and international trade; immigration and citizenship; national defence and the use of the national defence services; national economic policy and planning; and monetary policy, currency, and banking. County governments are however assigned the mandate of implementation of service delivery, with a discernible focus on basic services and local economic development.
6.7.6 Categories of Functions

The sixth principle of functional assignment recognizes three categories of functions. These are exclusive functions which can be performed by only one level of government; 120
concurrent functions which can be performed by two or more levels of government; and residual functions which reside with the original level of government which existed before the creation of the other levels of government. The concept of exclusive functions or powers involves the assignment by the constitution of certain powers and functions to a level of government exclusively. The national level of government may be assigned certain powers in which the subnational levels cannot interfere or share. At the same time the sub-national level may also have its exclusive area in which the national level cannot interfere or share. In systems which overemphasize exclusive functions, the effect is to reinforce the idea of autonomy at each level of government. This also has the effect of making it clear which government is accountable for policy in that functional area. In practice, however, even where most powers have been assigned exclusively to one level of government or the other, experience has shown that overlaps of functional jurisdiction are unavoidable because it is virtually impossible to define watertight compartments of exclusive jurisdiction. The concept of concurrent functions involves the idea of joint tasks and or overlaps in terms of functional jurisdiction. There may be many cases in which a certain aspect of an issue is assigned to the national level of government while another aspect of the same issue is assigned to the lower level of government. For instance certain aspects of the education function may fall under one level and others fall under the jurisdiction of another level. A good constitutional design in this case must clearly specify which level of government will prevail in the event of conflict between the two levels of government. For example, in the event that the two levels legislate on the same matter but in different ways so that there are two laws governing the same matter but which are in conflict or contradiction with each other, it must be clear which one of the two laws will take precedence over the other. The concept of concurrent functions is necessitated by the inevitability of functional overlaps and the reality of shared nature of governance which requires that in certain matters decisions ought to be shared and therefore that there must be some areas of shared jurisdiction calling for collaboration. Scholars have associated concurrent functions with a number of advantages. First, concurrency provides a measure of flexibility in the assignment of powers and functions, enabling the national government to postpone the exercise of potential authority in a particular field until it has become a matter of national importance. In the meantime the sub-national levels of government are left with their own initiatives. Secondly, national government may use concurrent jurisdiction to set national standards for the whole country while giving the constituent unit governments room to legislate the details and to deliver services 121
in a manner more sensitive to local circumstances. Thirdly, concurrency also avoids the necessity of enumerating complicated minute subdivisions of individual functions to be assigned exclusively to one level of government or another. The concept of residual functions or powers refers to those functions that are not expressly assigned by the constitution to either level of government. It is normally necessary to know in which level of government such powers reside. In this case, it is important to note that the greater the enumeration and assignment of functions and powers by the express provisions of the Constitution the less significant the issue of residual powers. Therefore, to avoid the conflicts that quite often arise when a determination has to be made about residual powers, a good constitutional design should seek to expressly enumerate and assign most of the powers in and by the constitution. In most cases the level of government in which residual powers reside is determined by the manner in which the devolution system in a given country emerged. In countries whose devolution system emerged in an integrative manner, by various independent units coming together to form a single country the system is referred to as integrative federalism or devolution. In such systems, it is the constituent units which agree to release certain powers to the national or union government they would have formed. The constitution in this case concentrates on specifying which functions are assigned to the national or union government. In this case the functions which the constitution has not expressly assigned to the national level of government are residual powers of the constituent units. On the other hand, in countries where the system emerged in a devolutionary manner, by a unitary country dividing itself into various sub-national units and the national government releasing certain powers to the sub-national level of government, the system is referred to as devolutionary federalism or devolution. In such system the constitution concentrates more on spelling out functions of the constituent units. Therefore, any powers not expressly assigned by the constitution to the sub-national level of government are residual powers of the national level of government. In the Kenyan case, it will be important to create a legal framework for further and continuously clarifying the assignment of exclusive, concurrent and residual functions in the cooperative system of government adopted.
6.7.7 Principle of Proportionality

The seventh principle is that of proportionality, which largely requires that, a level of government is allowed only to take action to the extent that is necessary to achieve
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the stated objectives, regardless of those objectives. Article 190(3) provides that Parliament shall enact legislation that will allow national government to intervene to ensure county governments perform their functions. Article 190(4) details the steps for achieving this, including possible takeover by national government for performance of those functions. However, in Article 190(5), the provisions suggest some level of measured intervention through a requirement that a notice be issued to the defaulting county government and allows the national government to take only those measures that are necessary. It further provides that a process be defined by which the Senate would bring such an intervention to an end.
6.8
Limits of Devolution
Having enunciated the above, it is acknowledged that devolution has its limits. That is, not all functions are appropriate for devolution since they may not result in the most efficient delivery of public services. Literature also recognizes principles that suggest some functions are better carried out at national level. The principle of economies of scale recognises that if increases in the quantity of a service produced results in lower unit costs, then a larger unit of government may deliver the service more efficiently. Likewise, if the service provides benefits (or imposes costs) on those outside the area of control of a small scale governance unit, i.e., there are geographic spill overs of costs or benefits, the local unit is unlikely to produce the service at a level which would be most beneficial for society at large (since the local decision makers are probably only concerned about the costs and benefits to their own constituents). In a similar vein, some local public services, e.g., health, not only provide benefits to those obtaining health services but also society at large, and so involve issues of national interest. It is, therefore, often in a nations interest to insure that certain health policies are uniformly adopted throughout the country. In fact, the Constitution anticipates this since Schedule 4 retains for the national government the function of setting policy or setting standards in several sectors including housing, land planning, construction and maintenance of county roads, energy, health, agriculture, veterinary, and tourism. International experience in recent years also recognizes that capacity limitations are an important consideration. This principle is also reflected in Kenyas Constitution. As noted above, the Sixth Schedule provides for gradual transfer of assigned functions as counties develop capacity, so that no county is responsible for a function that it does not have capacity to perform. Annex 5 sets out an example of the criteria that were used to guide the assignment of functions in Indonesian decentralisation and that could be applied in further dissecting the constitutionally assigned powers, functions and competencies.
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6.9
The Need for Unbundling of Functions
Unbundling of functions, refers to the process of further clarification of functions with the specific intent of defining and allocating functions and competencies to various actors in a manner that leads to effective and efficient production of a public service. Unbundling is implemented horizontally and also in terms of management functions. In fact, this is generally the approach that is followed in other countries that rely either on a constitution or organic law on local governments to assign services. However, most countries also find that broad-based functional assignment similar to Schedule 4 in the Kenya Constitution is insufficient for defining responsibility for the delivery of services that fall under a particular broad based head of power. Rather than assigning, for example, primary education to the lowest level of government, in practice, only certain components or service delivery functions are assigned. Hence another principle of functional assignment is to unbundle services within sectors (particularly if the constitution or organic law does not define specifically what services are contained in an assigned sector). There are at least three dimensions to unbundling sectoral services. One is to recognize that services in most sectors include a variety of specific service tasks, sometimes involving multiple ministries. Each service activity associated with a sector should be identified and analysed. Second, delivering a service involves a number of decisions, sometimes termed provision decisions, including how the service is to be planned, financed (e.g., from fees or general revenues), produced (e.g., public or private sector), and managed. Some of these tasks may be reserved for the national government whereas others may be devolved to a lower level of government.
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Finally, a decision regarding which level of government is responsible for allocating funds to a service, i.e., budgeting, along with being responsible for producing the service must be made. Production decisions include responsibility over labour and non-labour inputs, overseeing and maintaining facilities, and constructing or reconstructing facilities. In sum, there is a wide array of combinations possible in the assignment process.
6.10 Processes for Coordinating Decisions on Functional Assignment

During the past two decades many governments have engaged in the process of devolving responsibilities for public service delivery to sub-national governments (with mixed success). From the experiences of other countries, it is clear that the process used to determine the alignment of service delivery responsibilities is particularly important. Among the lessons drawn by Ferrazzi and Rohdewohld (2009a & b) in their review of functional assignment efforts in a number of countries is that it is important for sectoral line ministries to be actively involved in the devolution process. It is also critical that the techniques and assumptions used by the sectoral ministries involved in the process be harmonized. This means that a coordinating organization needs to oversee and monitor the process. Since the set of services ultimately devolved are meant for the citizens of Kenya, the process should also be consultative. Finally, the results of the process must be a Government decision; so senior national government officials should lead the process.
6.11 On-going Role of National Ministries and Sectors

Devolution means that county governments will make decisions about service delivery. Experience of devolution in other countries suggests that a frequent reason for the failure of devolution is the syndrome of partial decentralisation. Partial decentralization occurs where county governments are established, but they do not have a proper degree of responsibility for all three components of service delivery: functions, funding, and functionaries. If county governments do not have control over these elements, they cannot be held responsible for poor service delivery. One of the most challenging aspects of devolution is the need to let go at the central level. An important dimension of function assignment is to define the intergovernmental management dimensions of concurrent, or shared, as well as functions that will be managed on an on-going basis. It is important that these
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intergovernmental management arrangements should give the county governments the space to be responsible for the functions that have been devolved to them.
6.12 Proposed Road Map for Assignment of Functions and Competencies in Kenya
Over the past two decades many governments have engaged in the process of devolving responsibilities for service delivery to sub-national governments with mixed success. The experiences reviewed above, clearly indicate that the process used in assignment of functional responsibilities is an important determinant of success. Among the lessons learned is that it is particularly important for sector (line) ministries to be actively involved in the process of devolving functions to sub-national governments. It is also critical ministries use a common framework in the process and that a coordinating mechanism is required to oversee and monitor the process.
6.12.1 Establishing the Process for Decision Making

As delivery of services of devolved functions are ultimately meant for the citizens of Kenya, the devolution process should be consultative and organized on a sector basis where appropriate. And since the results of the process will inform public policies and may require legal reforms, it is important that high-level national government officials lead the process. It is therefore recommended that an institutional framework to oversee the consultative process be put into place. This chapter proposes that a Committee of Permanent Secretaries (CPS) should coordinate the process, analysis, clarification and assignment of functional responsibilities. Schedule 6, Section 5(6) (a) mandates the Constitution Implementation Commission (CIC) to, monitor, facilitate and oversee the development of legislation and administrative procedures required to implement this Constitution. Article 216 (2) mandates the Commission on Revenue Allocation (CRA) to make recommendations on other matters concerning the financing of, and financial management by, county governments, as required by this Constitution and national legislation. Both these mandates require that there be a clear basis for the assignment of functions between the national and county governments. Therefore as a beginning, and based on these mandates, the CIC and the CRA shall jointly issue an advisory requiring that a Comprehensive Functional and Competency Assignment exercise is implemented by all sectors. The CPS will in turn report to the Cabinet Sub-Committee on Implementation of the Constitution. The Committee will appoint a 10 member Technical Working Group
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(TWG) that will guide the process through sector based Functional Assignment and Competency Teams (FACTs). The main outputs of FACTS will be to Draft Sector Functional and Competency Assignment Policy Papers whose process of approval will be cascaded up to the Cabinet level. The policy papers will provide the framework and plans for the transfer of functions by the national government to county governments. It is anticipated that the whole process will be completed and approved by Cabinet by 31st December 2011. The institutional framework for the process is summarized in Figure 6.1. It is recommended that these activities be undertaken under the coordination of the Transitional Authority proposed under the chapter on Transition to Devolved Government.
Figure 6.1: Recommended Functional and Competency Assignment Process
The TWG will, under the guidance of CPS, in the first instance analyse the distribution of functions provided in the Fourth Schedule and align them to sectors (see proposal in Annex A) and determine the ministries involved in the delivery of services for the purpose of establishing FACTS. For example, for functions falling under the health sector the relevant ministries - Medical Services, Health and Sanitation and Local Government and appropriate stakeholders - would appoint officials to form a FACT. The number of FACTS to be established will therefore depend on the number of sectors agreed by the TWG and CPS. The FACTS will work with ministries in analysing
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the activities of the relevant sector and ultimately prepare a sector Policy Paper on the devolution of functions (assignment of functions). As described more fully in the section to follow, the Policy Papers will provide information on the current modes of service delivery, resources utilized, and existing service gaps. For each activity pertaining to the sector, the FACTS and the concerned ministries would analyse and recommend how functions could be devolved to county governments, and the rationale for the recommendations. The analysis of functions by ministries should include the analysis of functions of state corporations falling under the respective ministries. To insure comparability, Policy Papers would follow a common format and be based on a consistent set of assumptions that are proposed in this chapter. The position papers will also have implementation (devolution) plans (described more fully below) for each function. The plans will include proposals for asymmetric phasing of devolution of functions, changes in administrative arrangements necessary, capacity building efforts and changes in law or policy that would be required for effective service delivery. Proposals on administrative changes are meant to ensure that organizations follow functions at the national level by proposing ways of right sizing ministries to accord to their new roles and functions. More importantly, the plans should outline the service norms and standards required to achieve policy outcomes; cost the plans; and, propose a performance management system for implementation plans. The policy papers are to be presented to the TWG by the FACTs, who after validation would submit them to the CPS for discussion and approval. The Committee may refer the papers back to the TWG or subject the recommendations to further stakeholder consultations where it may require more information or further clarifications. Once the Committee is satisfied with the papers then they are put through the cabinet approval process, first to the Cabinet Sub-Committee on Implementation, then to the full Cabinet. It is only after Cabinet approval that the ministries can begin to implement the plans. It is likely that some, both in and outside of government, will argue that this framework for devolving services to county governments will be costly in terms of time and resources that will need to be devoted to the process. And it is true that it will require considerable effort, particularly on the part of line ministries. However, as noted above, many ministries have already begun their own process relying on their own perceptions of the meaning of devolution as outlined in the CoK 2010. This nonharmonized approach is, we fear, likely to create confusion, particularly for the new 128
county governments. This confusion can lead to poor quality of services delivered to the people, which could impose costs on society (and subsequently on political leaders) that exceed the costs of carrying out the process. The attendant litigation and public satisfaction, as evidenced from other jurisdictions implementing similar efforts, will be far more costly than this initial down payment necessary to secure devolved government and ensure effective public service delivery.
6.12.2 Role of MDAs in Functional and Competency Assignment

The papers prepared by the FACTS will be presented to a Technical Working Group on Functional and Competency Assignment. The role of the Technical Working Group on Functional and Competency Assignment is to integrate and harmonize the efforts of different sectors and to facilitate a process of making policy decisions about issues that affect all sectors. Many of these policy decisions are critical to the way the transfer of functions will be implemented as well as to ensuring that there is coherence across and between sectors. Areas where a common policy position is needed are likely to include: Approaches to transfer/secondment of staff to county public services, including options in relation to retrenchment of excess staff; Determining what aspects of public service management should be regulated by a national framework; Identifying criteria for determining whether any staff should remain national public servants (for example, where shortages in niche skill areas mean some counties may be unable to attract permanent public servants); Criteria for determining whether a county is ready to receive a function, in the transition period; Policy and procedures for transfer of assets and liabilities
Questions of financing are also integrally intertwined with decisions about functional assignment. Kenyas Constitution provides for a minimum of 15% share of national revenue to be allocated to and divided among county governments. If too many functions are retained at the national level, it may leave the national government short of funding to pay for these functions, after 15% of revenue has been paid to the counties. An additional issue is that the formula used to share the minimum 15% of nationally raised revenues between counties is unlikely to be sufficiently sensitive to reflect differences in the cost base of different counties. These specific financing needs may be better addressed by unconditional or conditional grants to counties. Conditional grants may be appropriate in other circumstances, for 129
example to ensure that certain national priority programs are delivered. Since these additional unconditional and conditional grants could only be paid from the national governments share of revenue in effect on top of the 15% - there are significant fiscal implications.
6.12.3 Selection of Pilot Sectors

One common and recommended approach used in other countries is to use one or two sectors to pilot the planning and development of the process for shifting service delivery responsibilities to sub-national governments. This would assist other sectors and ministries in their preparations by providing a model process. Ferrazzi and Rohdewohld (2009b) suggest that sectors chosen for piloting should be those with interested and committed leadership in order to increase the likelihood of success. The selected pilot sectors would be supported through targeted technical assistance to carry out the planning for and initial implementation of shifting service delivery responsibilities to sub-national governments. This assistance can help other ministries carry out their preparations by providing a model for the process. For the Kenyan case, based on on-going activities and interest shown, it is proposed that the Health, Water and Infrastructure Sectors be considered for piloting. Critically, these are the sectors significant to achievement of Article 43 obligations. Most contestation will arise from public service delivery in these sectors.
6.12.4 Levels of Government

One of the key issues in functional and competency assignment will be that of achieving clarity in terms of who does what in terms of the levels of government. His Excellency, President Mwai Kibaki, at the opening of the International Symposium on developed government stated categorically that there should be no doubt in anyones mind as to who is responsible for what. The CoK 2010 provides for two levels of government and permits further decentralization to the extent that it is efficient and effective. For purposes of the functional and competency assignment, functions and competencies will be assigned to the national government, county governments as well as urban areas and cities. The CoK 2010 assigns functions to the national and county governments. Article 174 (h), says that, the objects of devolved government are to facilitate the decentralisation of State organs, their functions and services, from the Capital of Kenya. Further to this Article, it is proposed that if the National Government (NG) wishes to decentralise its functions and services, it should do so through the county government. Should it
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want those services taken below the County Government level, it should do so by clear and unambiguous agreement as par Article 187 dealing with the transfer of functions between governments.
6.12.5 Sector Policy Papers

At the heart of the functional assignment process is preparation of policy papers by FACTS and on the basis of agreed sectors. The primary intent of the policy papers is to provide the framework for ministries to devolve functions and hence the delivery services they are currently providing to the county governments, including those which can be transferred under Article 187 of the Constitution. The process will also identify and clarify those functions which are to be retained by ministries and, particularly where possible, determine those that could be classified as residual functions. In order to facilitate the development of policy papers it is important for ministries to document in detail all the functions and activities they are currently responsible for. These activities are then mapped to the functions distributed to the national government and county governments in the Fourth Schedule to identify the specific functional activities that have been constitutionally assigned to each level of government. We propose an 8-step process in the development of the policy papers. This is outline as follows: Step 1: The FACTs should unbundle the sector functions, as articulated in the Constitution of Kenya, down to specific activities and assign these to the two levels of government and the single level of decentralization below the county level of government. Step 2: The FACTs should, based on the current budget and expenditure patterns, list all current expenditure items by vote, head or sub-head both for recurrent and development by sector and sub-sector. Activities that are currently being carried out in the headquarters should be separated from those that take place in the provincial and district levels. This is what will provide rough estimates of the costs of functions to be devolved to county governments. Step 3: The FACTs should then map the expenditure items listed by Vote or Head to the functions and competencies identified in Step 1. This process should also include an identification of gaps, overlaps and identification of residual items not identified. From the expenditure lists, there will be some activities that would not be obvious candidates for devolution. Undertake analysis of the activities and for exclusive, concurrent and residual functions provide information preferably in the form of a table indicating the ministrys recommendations on functions assigned to the national government that may or may not be devolved to county governments. The criteria for making 131
the recommendations should be clear and objective. It is recognized from international experience that line ministries often attempt to retain control over activities even if they are reasonable candidates for devolution. The involvement of stakeholders in the process and FACTS should ensure that ministries have strong arguments for not recommending devolution of some functions. Step 4: Basic information on each of the activities/functions which have been agreed as candidates for devolution should be provided in a disaggregated form by the counties. This information is important in the costing of functions and should include: Current staffing in the activity based on number of budgeted positions by vote; the information should include numbers, cadres, gender, ages and qualifications. This should only apply to staff in-post. An analysis of the differences that may exist between authorized staff and those in post should be provided. Information provided should not include double counting of staff, that is, the staff expected to participate in more than one activity. Total recurrent spending (2010/11 and estimates for 2011/12) on that vote Assets and financial liabilities associated with the activity. Care should be taken to avoid double counting where facilities are shared across activities.
Step 5: An overview of how the service is to be managed should be provided here, together with an organizational structure for the delivery of services at the county and sub-county/district levels. This should include a brief synopsis of staffing/management hierarchy. Step 6: The levels at which various decisions are made are unbundled at this stage. This process starts with the recognition that policy making is primarily the responsibility of line ministries for services currently administered through their programs at the local level. Of interest here are the responsibilities given to the de-concentrated offices involved in the actual delivery of services. The focus is on the staffing, procurement and monitoring decisions. The question is at what level in the administrative structure are the decisions made (recognizing that it is the highest level that will ultimately be responsible for decisions). The rationale for the inclusion of this step is to insure that the ministry thinks through its current arrangements as it considers what activities or components of activities to devolve to the county governments. It could also serve subsequently to guide county governments as they deconcentrate service delivery within the county for devolved services. Annex D is designed to assist in this process. The FACTs would complete such a table 132
for each of the activities identified as possible candidates for devolution. Step 7: At this stage FACTS will analyse the attributes of each activity in light of the principles stated above. This is a continuation of the unbundling process. The functions assigned to the national government are mainly policy making. This is a very broad term which in unbundling of functions should be explicitly defined. There are, however, various components of what may be considered policy that could be devolved to the county level. Among the components of policy may be: Norms or service-standards that the ministry will either retain responsibility for or devolve to county governments. Under the latter alternative the county government can determine the level/quality of service it wishes to provide its citizens. Financing rules that are to be followed by county government service delivery units, e.g., zero fees for certain services, versus allowing the county government to determine how best to finance a service. Monitoring responsibilities which could either be retained by the line ministry (particularly if norms are set centrally) or devolved, with the county required to self-report on service delivery or rely on county governments to respond to citizen pressures for improved service levels.
Another potential regulation that may be placed on county governments is the degree to which revenues mobilized within a particular sector, e.g., water use fees, are to be ring-fenced within the sector even though the fees are paid to entities of county government providing the services. Full devolution would permit a county government to make that financial management decision itself and a basic tenet of fiscal decentralization is that local governments know best how to allocate their own resources. It is, however, not uncommon to find in both developed and developing countries ear-marking of revenues earned in a sector to be retained in that sector. This is particularly the case for utilities that are expected to be managed similarly to private operations. FACTs should also consider the various categories of production-related decisions. Services related to devolved functions/activities will be delivered by officers under the authority of the county government (Article 235). Furthermore, if an activity is devolved, the procurement decision should be the authority of the county government. The national government will need to adopt regulations concerning procurement mechanisms to be used by county governments, e.g., to insure a fair, competitive and transparent process and meet the requirements of Article 227 of the Constitution.
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Also, for purposes of national objectives, a national legislation may recommend that certain additional restrictions be imposed on the procurement process. For example, national government should generally set the minimum standards to be met and put in place mechanisms to monitor adherence to them. Step 8: The sectors policy paper would conclude with recommendations on functions to be retained by the national government and those to be devolved to county governments. These recommendations should be supported by substantive arguments. Policy papers may also recommend functions assigned to the national government that could be transferred to county governments under Article 187. Again substantive arguments should support this recommendation along with provisions to insure that both sub-paragraphs of Article 187(2) will be followed. Since Article 187(2a) specifies that resources will be transferred to county governments to cover the costs of the transferred activities, it will be necessary for the ministry transferring the activity to estimate the costs that county governments would bear in carrying out the activity. The ministry would then also need to specify the exact mechanisms it would use to insure that those costs are covered through conditional grants to county governments. Finally, since Article 187(2b) stipulates that the ministry retains responsibility for performance of the county government in carrying out the activity, the details of how county governments actions would be monitored should be clearly spelt out. At this point functions would have been classified as national functions, county functions and those to be transferred to county governments by the national government. Those that remain and do not fit in these categories would be deemed residual functions and therefore are functions of the national government under Article 186(3) of the Constitution.
6.12.6 Implementation Plans

As soon as functional assignments and their costs have been agreed implementation plans will be prepared and made public well before the devolution of service responsibilities to county governments is made. The publication of the plans is to ensure that all the stakeholders are in agreement that they are in conformity with the position papers and the Constitution and to ascertain the feasibility of implementation. There are numerous issues that will need to be considered and addressed in the implementation of the plans. The most important of which are discussed below.
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6.13 Setting of Service Standards/Norms

In the case of most of the functions assigned to county governments by the Constitution, the national government is responsible for policy functions. It is therefore anticipated that ministries will set service standards/norms that will govern the delivery of services by the counties associated with devolved functions. This will be particularly important for delivering the services and in meeting the targets that the national government has pledged to carry out in international forums. Service norms can be prescribed in a variety of ways including specifying inputs that must be employed in producing the service, outputs of services delivered, or even outcomes from service delivery. These three performance indicators are required to be easily measured and monitored. However, in practice it is usually relatively easy to measure the inputs, e.g., the number of staff assigned to an activity, amount of consumables used, etc. whereas measuring and monitoring outputs will require a more elaborate monitoring system to be put into place. Finally, the requirement of outcomes as measures of performance, e.g., the health status of a community, will be even more difficult to gauge. Although easier to measure, establishing input norms especially with respect to staffing may conflict with the Constitutions stipulation that staffing decisions are reserved for the county governments. It is possible however for norms based on labour inputs to be provided in the context of legislation under Article 235. As an example, it should be possible to prescribe that only licensed doctors can be employed in certain health positions. It is also the case that overly circumscribed input restrictions will run counter to the underlying argument for devolution of powers. The primary rationale for devolution is to permit local governments to respond to the particular needs and requirements of their own citizens. In a similar vein norms based on amounts or percentages of a countys budget allocated to a particular activity are contrary to the principles underlying fiscal decentralization. Since the constitutionally created equitable share transfer is considered an unconditional grant, the national government cannot mandate how it is to be allocated by county governments. The national government must, instead, use conditional grants to achieve that purpose. Ministries can establish output norms. However, as noted above, it will be critical that mechanisms be put in place that can be used to monitor and report on the achievement of the prescribed standards/norms. It may be the case that ministries are already relying on output measures associated with their services, e.g., number
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of km. of rural roads on which periodic or routine maintenance was performed or heads of cattle vaccinated. The same outputs measures could be transferred with the devolution of road maintenance or animal disease control to county governments. The output norms that are established should, however, not be too many or unrealistically too stringent (and the reason the position paper is to report on service gaps). If the ministries themselves have not been achieving high levels of output, it is not sensible then to mandate that county governments achieve significantly higher output levels, particularly in the short run.
6.14 Performance Management System

As ministries design norms for the devolved functions, they will need to consider as well the methods to be used for monitoring compliance. A performance management system must be included in the implementation plan. There are two major issues associated with monitoring and evaluation that should be considered in designing a performance management system system for verification of the norms and consequences based on performance vis--vis norms. The monitoring system may rely for results on self-reporting by the service delivery unit or through an independent evaluation or random sampling survey of service units. Obviously, self-reporting has the potential for unreliable and inaccurate usually inflated levels of outputs (if outputs are used as the basis of norms as suggested above). Some indirect measures of outputs can be obtained indirectly, in at least some cases, by measuring quantities of inputs, e.g., the number of doses of vaccines ordered and used in the case of a health centre which might be available centrally. Nevertheless, if accurate monitoring and evaluation is to be accomplished, it is likely to require on-site visits to service centres even though this will increases the costs of monitoring. On site visits, either to all such centres or a random sampling, will be more costly both in terms of travel costs and staff time. Furthermore, if only the records of the centre are examined, false entries in the records will undermine the accuracy of the monitoring. In some cases, e.g., veterinary services or health services, a sampling of households to determine the apparent coverage of the service may be necessary even though again, this will increase monitoring implementation costs. The implementation plan should also indicate whether monitoring will be carried out only annually or whether it will be done periodically throughout the year to provide an indication of the ability of the activity to fully satisfy the norms by the end of the
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fiscal year. As well, it should specify the plans for staffing requirements for carrying out the monitoring who will be responsible for the activity and how the reports will be compiled and analysed. Even if accurate monitoring is accomplished, there remains the issue of what the consequences are for the county government if it fails to meet the norms. Article 192 of the Constitution allows for the President to suspend a county government, however, it would seem that it will take very extensive and important exceptional circumstances regarding unwillingness to meet the norms established by a ministry to initiate the process envisioned in the Constitution. Furthermore, it will probably take some time given the need to create an independent commission of inquiry. Finally, it should be acknowledged that failure to meet norms can have different social costs associated with them and should be recognized in any sanctions imposed. Failure of a county veterinary service to treat cattle for communicable diseases or a health centre to fail to treat patients are likely to have substantially greater costs to society as a whole than failure to fill potholes in a rural road. In the context of the implementation of the devolution plan there are two performance issues. The first relates to the monitoring and evaluation of devolution during the transition period, while the second relates to the eventual monitoring of the implementation of national policies and their own programmes by the county governments. These concerns should be addressed separately for they relate to responsibilities that could belong to different entities. During the transition period the major activities will be review of policies, legal and regulatory frameworks that underpin current delivery of services by ministries to comply with the Constitution; audit of central government assets and liabilities in the counties; audit of assets and liabilities of local authorities; audit of central government and local authority staff; devolution of functions to counties by ministries; and, building capacity in counties. The Task Force on Devolved Government is recommending that a Transition Authority be established to work with ministries, with the involvement of CIC (as provided by section 15 (2) (d) of the Sixth Schedule) to address these issues. It is recommended that the Transition to Devolved Government legislation be enacted. The legislation will among other things provide for the management of the transition period, including the establishment of the Transition Authority that will be a mechanism to monitor the devolution plans during the transition. In the case of monitoring the implementation of national policies and county plans, it is anticipated that a performance management system will be developed as part 137
of a national legislation on planning and budgeting provided by Article 220(2). This legislation could require the county executive to report on some prescribed time frame to county assemblies (Article 220(2) (b)). Monitoring of national policies, including regulations on standards and norms that would be gazetted to regulate provision of services by the counties could be undertaken on the basis of the provisions of Article 220(2) (c). This Article could provide measures that could be taken against county governments that persistently fail to meet performance targets.
6.15 Transfer of Assets and Liabilities

Many of the services that will be devolved are associated with existing real and financial assets (and liabilities), land, buildings, vehicles, and moveable equipment are currently being used in the production of the services. Where responsibility for continued production of the services lies with county governments, it will be necessary to transfer ownership of the assets to county governments and for liabilities to be liquidated before the functions are transferred to the counties. It is recommended that the national government makes budgetary provisions for the liquidation of the existing liabilities of local authorities to enable the county governments to begin their operations on a clean slate. Ideally, this policy should apply to the assets and liabilities of ministries and local authorities alike. It is recognized that the national government will continue to provide certain services at the county level and as such may not transfer all the assets. This may apply to those local authorities that may be recommended to remain in existence under Article 184. Even if a uniform policy is to be put into place, it will be necessary, as part of their implementation plans, for ministries to compile lists of their assets. Counties will produce the lists. This will assist in the determination of the infrastructure requirements of counties that may save substantial money where development of county infrastructure from scratch is avoided. One practical issue concerns how detailed the inventory of real assets needs to be. For example, should relatively low cost items, including consumables be included in the lists? One risk associated with asset transfer concerns actions that might be taken in expectation of such transfer. For example, if a ministry knows that its vehicles will be transferred to a county government in a few months, it may have little incentive to maintain those vehicles. Likewise, it is unlikely to spend resources on making repairs to buildings; instead, it will pass that task on to the next owner of the building. Similar risks may apply to liabilities in the form of outstanding bills that have been submitted by suppliers and contractors for work carried out prior to the devolution of
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powers to county governments. The Transition to Government legislation is expected to address these risks and the Transition Authority and CIC should ensure that the legislation is fully complied with.
6.16 Changes in Laws and Policies

The assignment of functions that will arise from sector work by FACTS will inevitably require changes to existing policies and laws. This is primarily to ensure that these laws comply with the Constitution and to introduce regulations that will provide guidelines for service delivery by county governments. The implementation plan should therefore begin by listing all policies and laws relevant to each sector that will need to be reviewed. The review of these laws will be guided by the need to reflect new policy framework developed to take into account the devolved system of government; the definition and assignment of functions to each level of government; development of the standards/norms for service delivery; and, the new institutional frameworks for devolution. It is alluded above that sector policies are likely to change to reflect the new system of governance. The Constitution assigns policy setting to the national government and as such ministries should review existing policies or develop new policies that take into account the new arrangements for service delivery and address specifically how devolution may have an impact on the relevant sectors.
6.17 Costing of Assigned Functions and Competencies

Once a clear understanding has been achieved as to which level of government will perform which function and/or competency, it will be important that these functions have costs of delivering them determined. This must be done in a coordinated manner, with clear consultations between the entities delivering and the budgeting units. This costing is key to ensuring achievement of the finance-follows-function imperative. In fiscal decentralisation literature these costs related to the expenditure assignments are key to ensuring that the function and/or competencies are meaningfully funded. Literature identifies a number of approaches to costing of assigned functions and competencies. These include the Norms or Minimum Service Standards Approach and the Production Function Approach. The norms of minimum service standards approach require that national standards be defined. These would include detailed technical and policy goals. The costs of achieving these are then computed and these form the basis for determining expenditure needs. It has potential challenges in the sense that it creates incentives for sectors to set high standards in pursuit of resources and
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Box 6.4: County visit submissions on organizational options for effective service delivery Every constituency should be a sub-county Departments headed by a director answerable to the executive committee A County Service Commission in charge of hiring, firing and disciplining staff County staff should be on permanent and pensionable terms with retirement benefits Current civil servants be absorbed by the county Structure of the County Public Service should borrow from the structure of local authorities Cross border services should be under the National Government Regional authorities to oversee the management of cross border services County Public Service be structured, staffed and managed by the national Public Service Commission Employment of support staff be delegated to county government Equal representation from counties of cross border service organisations Effective health service delivery by counties Children to self-advocate on issues through clubs on radio, TV, children magazines and during sports Establish channels for children to access quality services and report abuse
also, if poorly conceived, would allow devolved units to pass blame for poor delivery of services. The production function method is a normative method in the sense that needs are computed from the perception of those deciding as to what is the best way to deliver the function. In the production function approach, there is a need to define a service level that is expected. Next, conditions of production needs for that service level, for each county must be taken into account. It requires a very good and accurate data base as well as knowledge of service production possibilities and options.
The costs could be computed by reviewing costs of similar functions in other countries and looking at the relative shares of devolved vis a vis national government expenditure on these functions. It is generally not a very accurate method. A second approach would be to use historical data, gleaned from existing institutional arrangements. It uses retrospective data to determine the monies that would be required to deliver the same services in the new devolved environment. It is dependent on there being good records of costs of service delivery in the pre-devolved period. The third approach contemplates a full bottom-up calculation of the costs. It is best applied where good costing data does not exist and there is a consensus on the desired functional assignment and service delivery standards. A fourth approach is a judicious combination of approach two and three. In this case previous costs from existing arrangements would be applied as a short-term measure, while full bottom-up costing is implemented in the medium to long term. Annex 9 provides a review of these approaches. 140
6.18 Organizational Options for Effective Service Delivery

Once a determination of the assignment of functions has been done and costs have been determined, it will then be required that a decision is made as to which mechanism to use to deliver the services, including who is to deliver them. As illustrated in Figure 6.2, the national government can deliver its services directly, through de-concentration and by empowering county governments to deliver on their behalf.
Figure 6.2: General Framework for Delivery of Public Services
The issue at hand will be to determine which approach will deliver the service effectively, in respect of outcomes, while doing so at the lowest possible cost. There exist a variety of organizational options in service delivery strategies. These include public sector provision, private sector provision, community sector provision, and public-private partnerships. The key concern in respect of operationalization of the counties is the manner in which the public sector is organized. Figure 6.3 illustrates the options available for public service delivery in terms of partnerships with the private sector. These are the options that both the national and county governments could, in addition, feasibly use to de-concentrate delivery 141
of public services in a manner that is efficient and effective. A key question would be 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.
Figure 6.3: Options for County Public Service Partnerships in Kenya
In respect of citizen participation, their participation in the election of service boards as well as through referenda on key decisions, establishment of citizen juries as well as rights to comment on service delivery plans should be considered. Another question to answer is, whether in respect of public service delivery, county governments have exclusive jurisdiction.
6.19 Budgetary Implications

One other area that requires review is the annual preparation of the medium term expenditure framework (MTEF) budgets by ministries. Since county governments under Article 203(2) of the Constitution are assured of at least 15 per cent of national revenues, the costs of functions which will have been estimated above should be incorporated in budget estimates for the year 2012/2013. In particular, the sector 142
allocations should reflect not only the new functions of the national governments, but more importantly the reality that in some sectors delivery of services will be mainly the responsibility of county governments. The need for the projections is the reality that the intergovernmental transfers to county governments will have important implications on the budgets of ministries. The shares of national revenues and other transfers to counties will no longer be available to finance line ministry activities or any other item in the national government budget. It is from this macroeconomic perspective that the government should have a good estimate of the impact of devolution on budget allocations to activities of line ministries. It will, therefore be important for the affected line ministries to include in their implementation plan an estimate of the cost savings they will experience due to the transfer of service responsibilities to county governments. In order to estimate the net cost savings, each ministry should include the total amounts previously spent on the devolved activity (under the assumption that the costs of the inputs necessary to produce that service will now be the burden of county governments to assume). But in addition, if the ministry anticipates other changes in its costs, e.g., due to a decrease in need for headquarters, regional or provincial staff that previously had direct responsibilities over the activity, these too should be shown in the implementation plan. On the other hand, if there are anticipated additional costs associated with changes in the administrative structure of the line ministry, e.g., associated with monitoring county government activities and comparing them vis-vis the established norms, they too should be included in the implementation plan. With this information, it will be possible for the Government to determine the net effect on the total budget of the assignment of functional responsibilities.
6.20 Changes in Administrative Structure

With changes in the responsibility that line ministries will have regarding the delivery of devolved services, there are likely to be changes in the administrative alignment of staff. The implementation plan must include a plan for how their current staffing structure will be altered. For example, there is likely to be a substantial reduction in required staff at the service delivery level and certain offices will be transferred to county governments in line with the asset transfer discussion above. But the plan for monitoring, also discussed previously, may entail staffing re-alignment. All of these planned changes will need to be documented in the implementation plan. If there will be no difference in the new staffing patterns of line ministries across counties, these too should be documented.
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6.21 Capacity Building

It is the responsibility of the national government to build capacity of county governments (Fourth Schedule). Section 15(2) (a) (ii) of the Sixth Schedule provides for enactment of legislation specifying how the national government shall assist county governments in building the capacity to govern effectively and provide the services for which they are responsible8. Ministries must therefore include in their implementation plans capacity programs targeting county governments, including providing technical assistance at the initial stages. Ministries would also need to retrain their staff to ensure effective performance under changed circumstances. The aspects of the required capacity development in counties, especially during the transition period will be provided by a Transition to Devolved Government legislation (Article 190(1)) to be passed by Parliament. This Act will provide the institutional arrangements and the modalities for providing support to county governments.
6.22 The Transition Phase

The implementation plan of sectors must also include plans for the transition, particularly for the possible asymmetric devolution of functions to county governments as provided by Section 15(1) of the Sixth Schedule. The Sixth Schedule of the Constitution (15(2) (b)) stipulates that Parliament will make legislation that establish criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform. Nevertheless, individual line ministries should begin to identify factors that may constrain transfer of functions to counties and measures that could be taken to address them. As part of this process the implementation plan of each sector should state what indicators of readiness would be appropriate for determining the capacity of a county government to perform assigned functions. The indicators should be measurable and should not be unrealistic and unattainable by an average county. For example, if the current level of service in a sector falls short of ideal in some service centres within a county, the readiness indicators should not require that those services levels be increased to the ideal level before devolution of the service. The plan should also indicate how the assessment of readiness will be conducted.
6.23 Consequences of Ineffective Functional and Competency Assignment

In a devolved system of government functions are allocated between the various levels. These functions are classified as being exclusive, concurrent/shared or residual.
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The clear distribution of functional areas is important for effective service delivery9. This is primarily to limit conflicts and the attendant litigation as well as avoid waste amongst others.
Table 6.1: Dealing with lack of clarity in functional assignment between different levels of government
Challenges arising from lack of clarity in functional assignment Duplication of services Ineffective services No service delivery Unfunded services Increased contestation Wastage in funds expenditures Strategies to address them Judicial interpretation Statutory definitions Administrative definitions Negotiated definitions National definitions Local government definitions
Where functional assignment is not clear, effective public service delivery is affected through duplication of services, ineffective services, lack of service delivery, unfunded services, lack of accountability, and increased contestation over who is responsible for what. Table 6.1 summarizes the challenges arising out of inadequate functional assignment and the strategies that countries have adopted to deal with the same.
6.24 Conclusion
Functional responsibilities are what role players governments at all levels and nongovernment institutions are expected to do in the process of delivering a countrys 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 longterm act as a threat to national cohesion.
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Chapte
Integrated Development Planning in Devolved Governments

7.1
Introduction
ntegrated development planning is key to enhancing the efficiency and effectiveness of public policy as a mechanism for addressing the mandates of the Constitution of Kenya, 2010. Such planning will be instrumental in ensuring that the envisaged development devolved government is able to leverage, in as optimal a manner as possible, the resources available to the County Governments to address the needs of citizens. It will be a key step in the drive towards building a more just and equal society for the Kenyan people and their progeny. The major concern of integrated development planning will be to address the challenge of wealth creation within the limited resources available. A key concern for effective and efficient integrated development planning is an understanding of Kenyas human settlement pattern. It is projected that Kenyas population is expected to reach 64 million persons by the year 2030. This population will be largely youthful, with more than 60 per cent comprising persons aged below 35 years of age. It will also be significantly urbanized, from an estimated 29 per cent in 2009 to 74 per cent in 2030, but with a major rural population in terms of the number of persons. Current population growth patterns and settlement dynamics have a number of implications for Kenya, namely: Settlement dynamics reflected in movement and settlement patterns, especially given the projection that high rainfall areas will be densely settled, will put extreme pressure on the natural resource base of the country, critical for food security and sustainable development. This has implications for the demand for and access to basic services by the citizens;
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The differential population growth rates and the resultant changes in population distribution has implications for the functional boundaries for service delivery and therefore, the demand for variations in service delivery and electoral boundaries and, consequently, the system for boundary demarcation; Rapid urbanization, in the context of a significant rural population, and emerging local, regional and global evidence that urban areas will be the engines of successful wealth creation efforts has implications for measures to deal with urban-rural linkages. The growth of these urban areas, beyond political-administrative areas, will mean that measures to deal with service delivery, in an economical and efficient manner, will need to be put in place. In this context, integrated development planning will need to address issues of the merging demographic patterns, provide for productive urban-rural linkages, deal with emerging challenges of urban sprawl, peri-urban areas, service provision across county boundaries, and creation of supportive policy and institutional frameworks.
7.2
Integrated Development Planning and Effective Public Service Delivery
7.2.1 Why Integrated Development Planning?

Integrated development planning is a process through which devolved governments can establish a development plan for the short, medium and long-term. The main steps in producing an integrated development plan are: An assessment of the current social, economic and environmental reality in the county area - the current reality; A determination of community needs through close consultation and aligning this to the imperatives of the Constitution of Kenya, 2010; Developing a shared and compelling vision for development in the county; An audit of available resources, skills and capacities; A prioritization of these needs in order of urgency and long-term importance; Development of integrated frameworks and goals to meet these needs; Formulation of strategies to achieve the goals within specific time frames; Implementation of programmes and projects to achieve key goals; Use of performance management tools to measure impact and performance and make appropriate course corrections.
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The Integrated Development Plans are comprehensive, strategic planning frameworks to help the counties cost effectively and progressively achieve their developmental mandate. They will assist the devolved governments to amongst other things: align national and devolved government development and spending priorities align their financial and institutional resources behind agreed policy objectives and programmes; and serve as a basis for engagement between local government and the citizenry at the local level, and with various stakeholders and interest groups. Participatory and accountable government only has meaning if it is related to concrete issues, plans and resource allocations.
7.2.2 Linking Integrated Development Planning and Effective County Governance

Effective county governance is about facilitation of the citizens of the various counties to realize their highest potential. Through working towards the realization of the objects of devolution as articulated in Chapter 11 of the CoK, 2010, county governance enhances access by citizens to opportunity. To avoid many of the challenges of uncoordinated planning and development, there will be need to harmonise sectoral, national, localised as well as term planning to secure effectively our development outcomes as illustrated in Figure 7.1. Kenyan counties face immense challenges in not only addressing the development challenges arising from the demands of the CoK 2010 but also the additional challenge of raising the welfare of their citizens, acting as the engines of growth in the move towards achieving the goals set out in Kenya Vision 2030. The imperative of building attractive and sustainable settlements which meet the needs and improve the quality of life of local communities are major. As earlier illustrated, to meet these challenges, the counties will need to develop a clear and compelling economic and social vision for their areas, understand the various dynamics operating within their areas, deliver the appropriate services to build liveable places, and develop strategies for realizing and financing that vision in partnership with other stakeholders. To do this, they will require an integrated development planning framework to effectively and proactively harness the resources at their disposal. Annex 12 shows a framework for Integrated Development Planning for the nation, including the Counties.
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Figure 7.1: Components of Integrated Development Planning for Kenya
7.3
Operationalizing Effective Integrated County Development Planning
Effective integrated development planning is premised on the presence and operationalization of an effective legal framework, as well as the capacity to define and realize the instruments for development planning.
7.3.1 Constitutional Basis for Integrated County Development Planning in Kenya

Under the CoK 2010, development planning is anticipated at various levels. Schedule 4 of the CoK, 2010 assigns various elements of development planning to the national and county governments. This Schedule assigns national economic policy and planning, national statistics and data on population, the economy and society generally, general principles of land planning and the coordination of planning by the counties to the national government. County governments are assigned county planning and development including statistics, land survey and mapping, boundaries and fencing, housing, electricity and gas reticulation and energy regulation. Other functions key to development planning assigned to counties include transport, agriculture, health 149
services, as well as trade development and regulation. In respect of counties, these set of functions assign primary influence on county economic planning to the counties themselves. A major component of development planning, namely regional planning is not mentioned and should be undertaken through an inter-governmental framework. Other provisions of this constitution explicitly or implicitly assign objectives of development planning and these are also clear and onerous. Figure 7.1 shows the various provisions. Key amongst these objectives is the progressive realization of the provisions of the Bill of Rights. Effective development planning must link national and county economic planning. Recognizing that development takes place on land, and to avoid the challenges of the past, there must be a clear connection between economic and land use planning. In addition, recognizing that certain services are most cost effectively provided on a large scale, there needs to be provisions for cross-county and cross-national boundary spatial planning.
7.3.2 Proposals for Integrated Development Planning in Kenya

In order to realize the objectives of 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. Evidence from other sub-Saharan African states suggests that there is significant scope for improvements in resource utilisation, through harmonisation of parallel planning processes, with consequent misalignment of these and the outputs/outcomes. This planning will be implemented at the national, regional, county, sub-county and ward levels as illustrated in Figure 7.3. The instruments for achieving the anticipated planning outcomes would be crafted in development planning policy, legislation and guidelines. In this regard, it is proposed that matters relating to county development and planning be provided in the legislation on devolved government or in a separate legislation. The objectives of this Bill shall be to facilitate and guide the development of a strategic, integrated development planning framework for counties in Kenya. In respect of counties, it will: 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;
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link national, regional, county, sub-county and ward level planning and development control activities
Figure 7.2: Proposal for Integrating Development Planning Frameworks in Kenya
Figure 7.3: Operationalizing Integrated Development Planning in Kenya
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As illustrated in Figure 7.2, there is need to provide for integrated planning linked to a national development vision and strategy. We will require having various coordinated plans at the national and county levels. To deal with the cross county issues, effective regional planning will need to close the missing middle as illustrated in Figure 7.3. The manner in which development planning is to be implemented is implicitly anticipated under Article 6 on devolution and access to services. It is suggested that these plans should be updated within 9 months by each incoming County Government and translated effectively into 5-year Delivery Program for each County Governments term of office. Each county Governor would in addition be required to make an annual State of the County Report that would provide indications of progress in achieving the plans by their administration, including a statement of the challenges they face.
7.4
Conclusions
One of the major challenges Kenya has faced is the lack of comprehensive and coordinated planning. This situation was made worse by the inadequate linkages between planning and budgeting that effectively hampered implementation. It is no surprise that the country is renowned for developing comprehensive and strategic development blueprints, which are never implemented. This is a challenge that must not infect the devolved system of government. To this end, it is proposed that: A Devolved Government Bill, 2011 be developed and passed. This will form the basis for integrating economic and spatial planning at the national and county level. It will also be the basis for identifying programmes, projects and initiatives aimed at improving the welfare of Kenyans. All appropriations at the county level should be based on the Integrated County Development Plan (ICDP) that will provide the basis for expenditures by county governments. In the transition process, the inaugural Governors should be mandated to develop and have approved within the first 12 months the first ICDPs to be approved by the County Assemblies within the same period. As illustrated in Figure 7.3, the ICDP should take account of the national, county and cross-county development imperatives. The Devolved Government Bill, 2011 will provide for the ICDP that will comprise the following instruments to be a 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 the regional and national programmes in a manner that harmonizes sustainable development of both the county and country. It will form the basis of other sub-county plans, and a prerequisite for appropriation of resources. It will contain short, medium and long term
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measure programmes aimed at eliminating or ameliorating dysfunctionalities, disparities and inequalities within the county 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 on enhancing the skill 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.
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Chapte
Intergovernmental Relations and Conflict Resolution

8.1
Introduction
evolution provides a strong anchor against concentration of power in the Executive and engenders cooperative governance. It also accommodates diverse national interests and local decision-making on priority development activities. Devolution stands in contrast to the erstwhile administrative system which did not stimulate a spirit of cooperation and consultation between the national and sub-national units as partners for development. The CoK 2010 provides for National and County Governments as distinct and yet interdependent levels. The principle of cooperative government is central in informing the relationship between the two levels of government and among the county governments themselves. The thrust of this principle is that governments must function as a cohesive whole in order to achieve the desired outcomes including the effective delivery of services and national integration. The effective operation of cooperative government requires a system of intergovernmental relations and conflict management and resolution. Further, mechanisms for drawing public participation must be identified and implemented in order to provide effective citizen oversight over state organs. The Terms of Reference of the Task Force include undertaking stakeholder and public consultation to develop consensus on options of structures and institutions of devolved government. We have, in this chapter, proposed practical mechanisms to facilitate government cooperation and coordination at both levels of government and among the counties themselves. Our recommendations are informed not only by extensive and relevant comparative experience, but more importantly, by the invaluable views expressed by Kenyans during the public consultations. 154
In setting the context, we begin with an overview of Kenyas erstwhile administrative system. The rationale and principles for intergovernmental relations are then addressed. We next examine the mechanisms for cooperation between the national and county governments and inter-county government. We finally propose recommendations on the policy and legal framework.
8.1.1 Setting the Context: A Brief Overview of Kenyas Administrative System

Kenyas 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 Kenyas 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 relationship was
RELEVANT CONSTITUTIONAL PROVISIONS FOR INTERGOVERNMENTAL RELATIONS Article 1 (4): The sovereign power of the people is exercised at the national level and the county level; Article 6 (2): 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; Article 186 (2): A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government; Article 189 (1): 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 institutions of government at the other level and, in the case of county government, within the county level; assist, support and consult and, as appropriate, implement the legislation of the other level of government; and liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity. Article 189 (2): Government at each level, and different governments at the county level, shall cooperate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities; Article 189 (3): In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation; Article 189(4): National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration; Article 189 (5): In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict; Article 189 (6): A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency; Article 96 (1): The Senate represents the counties, and serves to protect the interests of the counties and their governments.
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that of a superior and subordinates. 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 centre retaining complete control over local authorities. Legislative authority was entirely vested in a unicameral house, which would delegate powers to various state institutions and non-state actors to implement the law. Under the centralized system, there was limited active involvement of the sub-national units as partners with central government in governance. The principle of devolution, which is a running pillar throughout the CoK 2010, heralds a complete shift from the old order. Mechanisms for vertical and horizontal co-operation and consultation between the National and County Governments and inter-county must, therefore, be identified and harnessed in order to avoid the centralized and unilateral decision-making that has been the hall mark of Central Government for many years.
8.2
Constitutional Foundations For Intergovernmental Relations
The CoK 2010 provides a purposeful framework for intergovernmental relations. The overarching principles are fidelity to the nation, unity in diversity, cooperation and interdependence.
8.2.1 Principle of Fidelity to the Nation

Article 10 (2) identifies the national values and principles of governance. These include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people. The principle of fidelity behoves the people of Kenya to appreciate that we are united in diversity, the establishment of county governments notwithstanding.
8.2.2 Principle of Unity in Diversity

In the preamble, 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.
8.2.3 Principle of Cooperation

Article 189 provides for mechanisms of cooperation between the levels of government. Governments may form joint committees and joint authorities to facilitate cooperation. The new political system requires duty bearers to work in 156
consultation, exchange information, and to respect the role of organs, institutions and structures as the law provides. Such cooperation includes fostering national unity, harmonizing policy formulation, coordinating the implementation of socio-economic policies, implementing of legislation, enhancing capacity and facilitating National and County Governments operations. The principle of cooperation excludes rigidity and emphasizes continuous day to day engagement and exchange of information between public officers and the citizenry. This principle assumes especial importance in view of the need to manage shared resources among counties.
8.2.4 Principle of Interdependence

Article 6 provides for interdependence in the operations of the two levels of government. Both levels, although distinct, shall conduct their mutual relations on the basis of consultation and cooperation.
8.3
Intergovernmental Relations: Conceptual Issues
Intergovernmental relations are the set of multiple formal and informal processes, channels, structures and institutional arrangements for bilateral and multilateral interaction between levels of government. They seek to achieve various objectives including the following: promotion and facilitation of cooperative decision-making; coordination and alignment of priorities, policies, plans, budgets, and activities across interrelated functions and sectors; ensuring smooth flow of information within and between governments on a constant basis in order to enhance the implementation of policy and programmes; and constant provision of appropriate information to citizens and appropriate responses to their needs. Article 186 of the CoK 2010, 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. Functional distribution and execution requires a coordinated government approach and consultation for optimum resource use and service delivery. The National and County levels and inter-county, levels must of necessity, therefore, cooperate in the implementation of policy and legislation, public resources while harnessing behind common goals within a framework of mutual support. A cohesive multi-sectoral perspective should be adopted with a view to avoiding wasteful competition, ineffective use of human resources and costly duplication. In addition, functions and responsibilities, must be deliberately and rationally distributed in order to enhance the efficiency and effectiveness of government as a whole. The interrelatedness of organizational arrangements is the outcome of well designed intergovernmental relations.
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Most intergovernmental disputes are better resolved politically because they centre round policy choices and administrative discretion. They should ideally be dealt with through political processes and should not be packaged as legal issues to be determined by the courts. There must be a systems, rather than an ad hoc, approach to the prevention and settlement of intergovernmental disputes. A systems approach involves the acceptance of the inevitability of conflict and the creation of permanent structures, procedures and personnel to anticipate, prevent, contain and manage disputes effectively. South Africas Intergovernmental Relations Framework Act, 2005 provides some useful guidelines in this regard. The Act sets up various intergovernmental structures for consultation and cooperation. Where the implementation of a policy, the exercise of a statutory power, the performance of a statutory function or the provision of a service depends on the participation of organs of state in different governments, those organs of state must coordinate their actions in such a manner as may be appropriate or required in the circumstances, and may do so by entering into an implementation protocol. The implementation protocol must identify all challenges anticipated in carrying out the task allocated and describe the roles and responsibilities of each organ in implementing the policy, exercising the statutory power, performing the statutory function or providing the service. The Act also provides for the settlement of intergovernmental disputes but excludes settlement of specific intergovernmental disputes in respect of which other national legislation provides resolution mechanisms and procedures.
8.3.1 Emerging Key Issues

The issues that have significant bearing on the design of a facilitative intergovernmental framework include: mechanisms of vertical consultation and co-operation between national and county governments; consultation and cooperation between the county governments and other state organs and officers, including the Senate; and horizontal co-operation between county governments.
8.4
Mechanisms of Co-ordination and Co-Operation
8.4.1 Introduction
In our initial conceptualization of the framework for intergovernmental relations we had included intracounty processes. In this regard, for example, we proposed some intra county fora, including the organization of municipal authorities as institutions for intergovernmental relations. Our review of the CoK 2010, however,
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GLOBAL IGR EXPERIENCES South Africa (National and Provincial Spheres)

The Republic of South Africa has a hybrid presidential-parliamentary system. A notable feature of the 1996 Constitution is Chapter 3 (articles 40-41) entitled Co-operative Government. This explicitly enunciates that intergovernmental co-operation is to be the underlying philosophy for the conduct of government and relations between the three spheres of government: national, provincial and local. Furthermore, to encourage intergovernmental co-operation, the constitution empowers the Constitutional Court, if it is not satisfied that every reasonable effort to settle a dispute by intergovernmental negotiation has been taken, to refer a dispute back to the governments involved (article 41(4)).The Inter-governmental Relations Framework Act, No. 13 of 2005 (pursuant to section 41(2) of the Constitution establishes and provides for structures and institutions to promote and facilitate intergovernmental relations. It regularizes a number of existing Inter Governmental Relations (IGR) fora which include the South Africa Local Government Association (SALGA). Another forum for co-operation and co-ordination is the Presidents Coordinating Council (PCC). It consists of the President, the Deputy President, the Minister in the Presidency, the Minister for Provincial and Local Government, the Minister for Finance, the Minister for Public Service and Administration, the Premiers of the nine provinces, and the Chairperson of SALGA. The PCC meets twice a year. It is, however, primarily a consultative body, its decisions not being formally binding or enforceable. Germany (Federal and Lander Governments) Germany has also developed an extensive number of extra-constitutional bodies and procedures for intergovernmental consultation and co-ordination. These include the Conference of MinistersPresident (Premiers), in which the Federal Chancellor (Prime Minister) participates, and which meets at least twice a year and Numerous Conferences of Specialized Ministers of the Federation and the Lnder. With regard to the latter, each meets at least once every six months, and each meeting is preceded the week before by a meeting of the relevant state secretaries. These ministerial meetings are significant because they make political decisions, generally on the basis of unanimity, which are considered binding on all parties.
countermands this position as government is constituted at national and county level. Intergovernmental relations are, therefore, conceptualized between the National and County Governments and among the County Governments themselves. Intracounty mechanisms for co-operation are addressed under the devolved government framework. Debate arose, also, regarding the inclusion of the representatives of the Judiciary and the Legislature in the proposed intergovernmental institutions. The argument that the Judiciary should be left untainted in disputes, which it may in all probability adjudicate over, was compelling. With regard to the Legislature, the view was that the assemblages constitute fora for consultation and cooperation. We were, also, guided by the expressed concern by citizens that statutory institutions are kept to the bare essential due to the financial implications.
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In addition, the experience of South Africa was instructive. The following organs are excluded from the operation of South Africas Intergovernmental Relations Framework Act: Parliament; The provincial legislatures; The courts and judicial officers; Any independent and impartial tribunal or forum; The state institutions supporting constitutional democracy, established by Chapter 9 of the Constitution, including the Electoral Commission; Any other constitutionally independent institution, including the Municipal Demarcation Board; and Any public institution that does not fall within the national, provincial or local sphere of government and is, therefore, not subject to the executive control of the spheres of government.
Finally, we were conscious of the fact that we should not unduly over prescribe for the county governments. In view of this, therefore, some of the earlier proposals we had entertained for the county governments were abandoned. We had, for example, proposed that the intergovernmental legislation provides for incorporation of legislation by reference to enable counties that lack capacity to legislate to adopt legislation of other counties. A related recommendation was that National Government provides to county governments transitional model legislation pending the building of the necessary capacity for county assemblies. We now hold the view that counties, themselves, should make the requisite decisions in these matters.
8.4.2 National and County Government Intergovernmental Relations

The areas of potential conflict between the two levels of Government include issues relating to financial management and resource allocation criteria, and intervention and suspension of county governments by National Government. Mechanisms of co-operation and co-ordination must address these concerns. Most federal and quasi-federal systems, particularly parliamentary ones, employ formal or informal federal-provincial and inter-provincial councils in facilitating intergovernmental cooperation and collaboration. In Australia, India and South Africa, for example, the emphasis is on effective federal-provincial councils dealing with issues of both vertical and horizontal cooperation. The Australian intergovernmental relations
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experience illustrates that constitutional underpinning is not essential. The gaps that exist in Constitutions, including Kenyas, can be filled either through legislation or even informal mechanisms to which the levels of government are committed. In establishing formal institutions to improve intergovernmental collaboration, it will be essential to ensure that they are open, transparent, accessible and responsive in order to avoid undemocratic practices. The experiences of South Africa, Germany, Australia and Canada in this regard, are instructive. More importantly, in all government processes, mechanisms that ensure citizen participation in the formulation of government policies, and the monitoring and evaluation of their implementation are prerequisites.
8.4.3 Views Expressed by Kenyans

Design of a policy and legal framework to guide cooperation and consultation between National and County Governments Establish a ministry of cooperative government at the national level to facilitate the coordination of the affairs of County Governments National Government should focus on policy formulation and training of County civil service, while County Government concentrates on implementation of projects and services
FURTHER GLOBAL IGR EXPERIENCES Australia (Federal and State Governments) Australia, like Canada combines federal and parliamentary institutions. With the exception of the Loan Council, intergovernmental relations are not referred to in the constitution. Australia has established a number of major formal councils to deal with policy issues that have intergovernmental implications. The Council of Australian Governments (COAG) is Australias primary intergovernmental institution. It was established in 1992 with the objective of reforming intergovernmental relations in Australia. It is chaired by the Prime Minister and includes all the State Premiers and Territory Chief Ministers and the President of the Australian Local Government Association. It generally meets at least once a year. The main purposes of COAG are to increase co-operation among governments and to oversee and co-ordinate the work of the Ministerial Councils. There are some 30 intergovernmental ministerial councils dealing with sectoral responsibilities at which a minister of the Commonwealth and of each state and territory attends. A number of these ministerial councils have decisionmaking mandates assigned by legislation and have voting rules, making them, therefore, genuine intergovernmental co-decision mechanisms. Canada: Federal Government Model Legislation The Federal Government adopts a model legislation that regulates a given field in a detailed way while allowing for the possibility of suspending its application in a province that has a regulation deemed equivalent by Ottawa.
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Establishment of a joint association that regularly meets with the Governor to share information that will help in harmonizing laws between National Government and County Government A National Advisory Committee to help in the operations of the Counties Establishment of the office of a coordinator between the County and the National Government Formation of joint boards/committees to coordinate functions, services and facilitate co-operation between the National Government and County Government The County Executive cabinet should reflect that of the National cabinet in number, function and service Mechanisms should be put in place for the Governor to brief the President on matters in the County Government Senators should be a link or a hub between the National Government and County Government to facilitate cooperation
Matching of the National Parliament with County Assemblies on the issues of standing orders, business calendar, and committees
8.4.4 Recommendations
It is recommended that: 1. An intergovernmental relations legislation and where practicable, concrete decision-making mandates be assigned to the designated intergovernmental institutions 2. 3. 4. Protocols and codes of conduct to guide intergovernmental relations An intergovernmental/co-operative National Government ministry that will facilitate intergovernmental cooperation A policy direction that National Government should endeavour to focus on policy formulation and enhancement of the capacity of the County Governments, while the latter concentrate on implementation of projects and efficient delivery of services A National and County Coordinating Council be established comprising the National President and the 47 County Governors Sectoral /Working Groups and committees for efficient facilitation of the functions of the National and County Government Co-ordinating Council.
5. 6.
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8.5
Inter-County Governmental Relations
The areas of potential conflict among 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 coordination. In Germany, for example, the two states of Berlin and Brandenburg have worked together closely for years, and demonstrate some laudable quality of Germanys federal system. Comparative experiences also show that our county component of 47 is far too large, and unless county governments cooperate in the execution of their functions, the benefits accrued from economies of scale will be lost (road construction, procurement of machinery, medical equipment and drugs etc). Some countries with a longer devolution experience than Kenya have also encountered operational challenges attributed to numerous territorial units. In this regard, Germany with its 16 Landers has already set up a Commission to make recommendations on how to reduce these units.
8.5.1 Views Expressed By Kenyans

Design of a policy and legal framework to guide cooperation and consultation among county governments A regional consultative organ be established to coordinate counties in issues of mutual interest Have inter-county committees meeting quarterly to discuss issues of mutual interest Establish a governors forum that meets every six months to deliberate on the issues in their counties in order to enhance cooperation and inter-relations Form a County Steering Group
Ethiopia: Traditional And Legal Methods Of Conflict Management The violent conflicts between the Gumuz and Amhara from 1992-1994 associated with historical, cultural and land encroachment factors were resolved by integrating traditional and legal methods of conflict management. Regional authorities including joint peace committees were tasked with responsibilities for developing joint activities whilst the police from both states ensured that law and order were observed. The lower peace committees which included elders and administrative authorities of both communities played a reconciliation role Nigeria: Unresolved Conflicts The Jos Plateau State conflicts between Muslim and Christian communities total 13,500 since 1999. Various Committees of Inquiries set up have been unable to provide a resolution of the conflict. A Truth and Reconciliation model has been proposed by some commentators as an alternative dispute resolution mechanism.
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comprising County Executives, County Senators, among others, to coordinate operations within Counties Appointment of county ambassadors/liaison officer by every county for representation Establishment of county line ministries that correspond to the national ministries. Establishment of inter-county technical agencies to manage cross-county services
Recommendations
We recommend: 1. The enactment of intergovernmental relations legislation to support inter county cooperation 2. There be established a Council of Counties comprising the 47 Governors with the chair on rotational basis, which shall hold a minimum of two sittings per year. The council be supported by a sectoral forum of the respective county executives. The Council reports 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 governments. Additional fora to address issues of trans-county concerns be constituted on a need basis.
3.
INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION
8.5.2 Intergovernmental Conflict Resolution: Conceptual Issues

In a cooperative system of government, it is expected that there will be times when disputes between different levels of government vertically and among counties horizontally, may arise. Articles 190 and 192 of the CoK 2010 envisage occasions of intervention by national government in the affairs of county governments and the suspension of a given county government in certain circumstances respectively. Article 191 recognizes the possibility of conflict between national and county legislation. In view of the fact that some of the functions conferred by Articles 186 and Schedule 4 of the CoK 2010 are concurrent, there will be situations of conflict and misunderstanding between the two levels of government calling for resolution. In
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addition, the process of sharing of national resources is a fertile ground for conflict. Agreements between governments that exclude key partners could also strain relations. Shared resources, if not properly managed, could occasion inter-county conflicts and conversely, well managed joint activities between counties will enhance mutual cooperation. Article 189 of the CoK 2010 provides that in any dispute between governments, the latter shall make every reasonable effort to settle the dispute by alternative dispute resolution mechanisms including negotiation, mediation and arbitration. This is necessary in order to avoid costly and time-consuming litigation. Further, judicial intervention should be recourse of last resort as it could scar the relationship of the parties irreparably. The same Article requires that national legislation provides for procedures for settling intergovernmental disputes. A dispute resolution tribunal would, in our view, complement other processes and institutions. Article 191 provides that where a conflict between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government occurs national legislation prevails over county legislation if the national legislation applies uniformly throughout Kenya or the national legislation is aimed at preventing unreasonable action by a county that is prejudicial to the economic health or security interests of Kenya or another county or impedes the implementation of national economic policy. Effective dispute resolution mechanisms must be developed through transparent and consultative processes which demonstrate fairness, flexibility, affordability and efficiency. There are three possible categories of dispute settlement. Firstly, there is the facilitative processes in which an outsider (a conciliator/mediator) assists the parties to make decisions but is not able to make binding decisions for them, for example, mediation. Secondly, there are advisory processes in which the advisor assists the parties to make decisions and where they are unable to do so, uses his or her expertise to guide and advise them on possible outcomes. Thirdly, there are determinative processes in which the intervener investigates the case, hears the evidence and arguments from all sides, and makes a decision that is final and binding, for example, arbitration. It is imperative that there be early identification of and intervention in conflicts. The initial uses of low cost, internal, informal processes are also preferred and that systems are designed that enable processes to be used in an incremental and systematic way. Protocols and codes of conduct can provide guidance as to the appropriate role and conduct of the respective parties. Each organ of state could have a dispute resolution manager who is a facilitator of the dispute resolution process and would not act as 165
judge or umpire. Such an official would be obliged to liaise with the counterpart in the other relevant organ. Both would crystallize the issues and agree on the nature and parameters of the dispute.
8.6
The Role of Senate

Article 96 the CoK 2010 provides that Senate interalia, represents County Governments and serves to protect their interests. It participates in the law-making function of Parliament by considering, debating and approving Bills concerning county governments. It also determines the allocation of national revenue among counties and exercises oversight over the same. The Senate, therefore, is an important organ for intergovernmental relations and dispute management and resolution.
Canada: Resolution of Disputes Arising From Concurrent Functions Federal-provincial agreements sometimes seek to coordinate the exercise of shared jurisdictions. The immigration agreements signed between the federal government and each of the provinces are good examples of this. These offer an asymmetrical sharing of provincial and federal responsibilities in an area of explicit concurrent competencies. For example, the Canada-Quebec Accord Relating to Immigration and Temporary Admission of Aliens gives Quebec funds and responsibility for settlement services and a greater say in planning and attracting business immigrants. Quebec also has the responsibility for the actual selection of immigrants and the control over settlement services. The Federal Government determines national standards and objectives relating to immigration and is responsible for the admission of all immigrants and the admission and control of aliens
8.6.1
Emerging Key Issues
1. Mechanisms for conflict management and resolution (including in situations of conflict of laws) between the national and county government. 2. National Government intervention and suspension of county governments.
8.6.2 Views Expressed by Kenyans

Establish an inter-county committee to deal with disputes arising Create a national arbitration organ Establish a specialized ministry at the national level to deal with conflict resolution. Empower the Village Council of Elders Devolve judicial functions to the lower level
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Establish special courts to resolve conflicts and establish peace-conflict committees Boundaries of counties be clarified The restructured Provincial Administration plays a role in dispute resolution
We recommend that: 1. The intergovernmental relations legislation makes provisions for, interalia, a. The National and County Coordination Council to address issues relating to management and resolution of conflicts The Council of Counties to address issues relating to management and resolution of conflicts The appropriate committees of Senate to facilitate the management and resolution of intergovernmental conflicts An intergovernmental disputes resolution tribunal The structures of intergovernmental relations facilitate the receipt of citizen issues for redress
France: Intervention and Suspension of Local Government In France, the Regional Chamber of Accounts ensures that the budget of the Department is balanced. In the event of either default in preparation of budget or failure to remedy a defective budget, the National Government intervenes through the Prefect. If the President of the General Council is completely unable to manage the budget and secure the necessary majority in Council decision-making, the Minister for Local Government can, upon the advice of the Prefect, dissolve the General Council and call for fresh elections.
b.
c.
d. e.
2. 3. 4.
There be specification of signatories to national and county government agreements For purposes of coordination of the exercise of concurrent jurisdiction, both governments define and agree upon their respective roles and responsibilities Provide for the granting of incentives for counties to undertake joint projects
Recognise appropriate existing traditional/local mechanisms and institutions for dispute resolution subject to the Constitution.
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8.2 Conclusion
Our principal recommendation is that intergovernmental relations legislation should be enacted before county governments become operational. The intergovernmental institutions identified should be assigned clear statutory mandates and concrete decision making powers. More importantly, however, governments must remain cognisant of the fact that they bear the constitutional responsibility of ensuring that Kenya remains united an indivisible whole. It is imperative, therefore, that positive experiences are feted and points of divergence narrowed in a constructive manner.
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Chapte
Intervention and Suspension

9.1
H
9.2
Introduction
istorically the national government has exercised immense control over local governments, including the power under the Local Government Act to dissolve local authorities. In contrast, the philosophical basis of the devolved government structure in the CoK 2010 is one of autonomously functioning county governments, controlled only by locally elected representatives. However, due to policy formulation and standard setting functions assigned to the national government a limited measure of oversight over county level of government is envisaged. The Constitution under Articles 190, 192 and 225 has provided for very restricted circumstances for intervention in the affairs of the county governments and suspension of a county government by the president.
National Government Intervention
9.2.1 Effective performance of county government functions

Article 186 and schedule four of the CoK 2010 assigns functions to National and County governments. Both governments are required to diligently perform and to the satisfaction of the citizens. The constitution requires that the county governments should be provided with sufficient resources to ensure adequate, affordable, reliable and high quality provision of services. County governments are therefore required to establish and operate appropriate structures, policies, legislation, plans, strategies and management that will ensure the satisfactory provision of services within their jurisdictions. Where a county government is unable to perform the functions assigned under the Constitution, the national government may pursuant to Article 190 (3) (a), intervene to ensure such functions are performed satisfactorily. The functions of a county government are performed either jointly or separately by 169
the county assembly and/or the county executive committee. The inability of either or both of the two arms of the county government to perform their respective functions could lead to their failure to effectively deliver the required services. The role of the county assembly is to enact county bills into laws or by laws, to consider and approve matters referred to them by the county executive including vetting of executive committee members and senior county public officials. The county assembly also considers and approves strategic plans, annual budgets, audit reports, collect local revenues, loans, grants, review investment and expenditure reports and connected matters. In performing their functions, county assemblies may constitute committees whose reports are tabled for consideration and adoption by the assembly. On the other hand, the county executive committee is responsible for implementing county legislation; and implement national legislation within the to the extent that the legislation so requires; managing and coordinating the functions of county administration and its departments; and perform any other function conferred on it by legislation. In addition, the county executive is responsible for formulation of county policies; preparation of strategic plans including plans for the management and exploitation of the countys resources as well as infrastructure investment plans; project planning and management; financial management including matters relating to revenues, budgeting, borrowing requirements, and loan guarantee requests; production of annual financial statements; response and action on audit queries, regular of preparation of sector reports and their submission to the county assembly; preparation of reports requested by the county assembly, human resources management and capacity building, among others. A county government will be considered unable to perform its functions if either the county assembly or the county executive or both fail to perform any of their functions. A county is deemed unable to perform its functions if it fails to meet within a period of three months to consider and make a decision on county legislation, approve the county budget by 20th of June of every year after having received the proposed budget two months before the end of the financial year; or within fifty days if the budget is received on a date later than 1st of May of every financial year or does not meet within thirty calendar days to consider and make a decision on county borrowing requirements, and loan guarantee requests. Also if it does not meet within thirty calendar days to consider and make a decision on the approval of persons nominated by the governor for appointment as executive committee members or county principal secretaries and persons designated as accounting officers for county departments, urban areas and cities and county public entities then it is considered incapable to perform its functions.
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It is also anticipated that the county assembly meets to within a reasonable period to consider and make a decision on a matter necessary to facilitate the county executive to effectively and efficiently perform its functions. Further, the county assembly is expected to meet consider and approve the county strategic plan submitted to it by the county executive within three months of its submission. In the case of a county executive, it is considered incapable if it is unable to formulate key policies, and submit the same to the county assembly for approval, to appropriately guide the county in the efficient and effective performance of the functions assigned under the constitution. Also, the county executive can be deemed incapable if it fails to implement specific county and national legislation as required by the county assembly or has not developed effective structures and systems to administer and manage the affairs of the county, urban areas and cities and county public entities or is unable to satisfactorily provide the requisite services to its citizens based on the standards developed by the national government and adopted by the county governments. Other considerations include inability to prepare the countys strategic plan for submission to the county assembly, for approval consideration within nine months after the constitution of the county government. The strategic plan will include proposals for the management and exploitation of the countys resources as well as infrastructure investment. Other indications include failure to prepare the county proposed budget and submit it to the county assembly two months before the end of the financial year. The budget shall include annual work plans, procurement plans, cash flow plans, including plans for the management and exploitation of the countys resources as well as infrastructure investment plans. In addition, the budget will include expenditure proposals, revenue projections and borrowing requirements, and loan guarantee requests. Others include failure to execute project implementation included in the budget, and failure to prepare regular and annual sector reports including human resources management and capacity building as required by the county assembly.
9.2.2. Recommendations
If the Cabinet Secretary responsible for devolved government becomes aware that a county is experiencing operational problems that may hinder its ability to perform its functions effectively, the Cabinet Secretary shall promptly consult the governor of the county to determine the facts; assess the seriousness of the situation and the countys response to the situation; and determine whether the situation justifies or requires an intervention in terms of Article 190 of CoK 2010. The Cabinet Secretary responsible for devolved government may inform Parliament, National and the County
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Government Coordination Council and the Council of Counties of the failure of the county government to perform its functions. It is also recommended that the Cabinet Secretary shall promptly decide whether or not to intervene in that county. If the Cabinet Secretary decides to intervene, he or she shall appoint a competent person(s) or firm(s) with relevant expertise to prepare and implement a properly costed intervention plan with clear performance targets and timelines to ensure that the county government is able to perform its functions effectively. The recovery plan shall be approved by the Cabinet Secretary responsible for devolved government and tabled before the county assembly and Parliament, for information. The intervention plan shall be for a period not exceeding nine months and every effort shall be expended to ensure the administration and management of the affairs of the county reverts to the county government. The county government shall be required to give all the necessary support to the person(s) or firm(s) responsible for preparing and implementing the recovery plan to facilitate them in their work; including providing them with the requisite financial, personnel, policy, legislative, office space, records, reports, and communication facilities. During the intervention period, the Cabinet Secretary responsible for devolved government may suspend or reassign some of or all the duties and responsibilities of the county government to the person(s) or firm(s) responsible for implementing the recovery plan. At the end of the intervention the appointee shall prepare and submit a plan to the Cabinet Secretary responsible for devolved government and the county assembly specifying actions that have been undertaken to address the operational weaknesses identified and recommendations for the future governance, administration and management systems that shall be adopted and implemented by the county to enable the effective performance of their functions. The Cabinet Secretary responsible for devolved government shall submit the report on termination of the national intervention to Parliament and National Government, and County coordination council and the council of counties for information.
9.3
Suspension of County Governments
9.3.1 Grounds for Suspension

The Constitution establishes and recognizes county governments as one of the two levels of government and further protects them from dissolution by the national government. At the same time, the Constitution under Article 192 gives the President
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powers to suspend county governments on two grounds namely; in an emergency arising out of internal conflict or war or in any other exceptional circumstances. It can be argued that these grounds are justified by the unitary system of government that is established by the Constitution and that places the entire nation under the general supervision of the President. However it is the Task Forces view that these powers of the President must be exercised democratically and not capriciously or arbitrarily. This will entail a clear and exhaustive definition of the essential elements of the grounds for suspension provided for in Article 192 so that they are not subject to abuse. It also entails an elaboration of the procedures to be followed in exercising of the powers of suspension. Article 192 already provides for two checks on the exercise of the Presidents powers, namely recommendation by an Independent Commission of Inquiry in instances where suspension is sought in exceptional circumstances, and secondly the approval and/or termination of suspension by Senate in all cases where the President seeks to suspend a County Government. Detailed procedures in this regard are therefore necessary.
9.3.2 Management of the County during Suspension

The period of suspension shall not extend beyond a period of ninety days, and on the expiry of this period elections for the relevant county government must be held. During this period the Constitution provides that legislation shall make arrangements for the performance of the functions of a county government. The two main functions of the county government are legislative and executive functions. However the legislative functions can only be undertaken by the County Assembly under the Constitution, which leads to the logical conclusion that during the period of suspension the county assembly stands prorogued and no legislative processes can take place. Therefore the only functions that can be exercised during suspension are the executive functions. We propose that for purposes of cost-effectiveness and continuity the county executive committee being the organ with political accountability is suspended, and an interim management board appointed by the President to manage the county with the assistance of the county administration.
9.4
Conclusion
The constitution provides for national government intervention if a county government is unable to perform its functions. Such an intervention should be undertaken on the basis of a properly costed intervention plan with clear performance targets and timelines to ensure that the county government is able to perform its functions effectively. The intervention plan shall be for a period not exceeding nine months 173
and every effort shall be expended to ensure the administration and management of the affairs of the county reverts to the county government and lessons learnt are used to inform future policy and legislation to forestall such failures. To guard against abuse of the provisions on suspension of county government by the President, the Task Force recommends that legislation provides specific details on the grounds for suspensions in Article 192, provides checks on the exercise of the Presidents powers, and elaborates on the procedures to be followed in exercising of the powers of suspension to ensure due process of law. During the period of suspension the law should provide for efficient and cost effective management procedures, and also take due cognisance of the constitutional and legal status of the county government.
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Chapte
10
Citizen Participation, Protection of Minorities and Marginalised Groups

10.1 Introduction
itizen participation, protection of minorities and marginalised groups are central issues in development. The CoK 2010 gives prominence to these issues and provide for citizen participation in all governance processes. Article 1 (1) and (4) provides to the people of Kenya sovereign power which can be exercised either directly or through democratically elected representatives. This power is further strengthened in Article 10, 2a and 2b where national values and principles of governance include participation of the people, inclusiveness and protection of the marginalised among others. The principles of governance provide opportunity for citizens to see themselves not only as sovereign citizens, enjoying a rich and broadened Bill of Rights, but more particularly as free citizens constructing their destinies. This requires a deeper understanding and appreciation of democratic space, role of citizens and responsibilities of both National and County governments in development. There is a nexus between participation and protection of marginalised groups in society, and hence the inclusion of both in this chapter. In recognition of the need for inclusiveness, the CoK 2010 recognises and protects the rights of minorities and marginalised communities and groups by adopting a rights based approach to development. This ensures that everyone is entitled to development as a right and not a favour from the state, and both levels of government have the responsibility to ensure the realisation of this provision. In order to provide deeper understanding of these issues and their realization, the sub sections below
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discuss citizen participation and protection of minorities and marginalised groups in County Governments.
10.2 Citizen Participation

Citizen participation is embedded in the Constitution and the responsibility of operationalising the provisions solely lies with both levels of government. This section begins by discussing the concept of integrated citizen participation, followed by a discussion of basic elements of citizen participation focusing on citizen participation as a right, the function of transparency in democratic governance, the imperative of influencing decision making, access to information and the right to effective democratic citizenship, meaningful dialogue; conditions for accountability, transparency, the basis for equity and equity as a right of self-determination.
10.2.1. The Concept of Integrated Citizen Participation

Citizen participation is a core element of democratic governance in devolved systems. In understanding the concept, the County is conceptualised as a developmental governance unit. But most important it seeks to locate service delivery as both the rationale for and the core ingredient 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 with a view to underscoring its cross-cutting importance for good governance in sustainable societies. Moreover, the section seeks to demonstrate the crosscutting character of citizen participation as an essential element in democratic and social development of modern societies. Closer details are envisaged in an overarching policy framework and corresponding statutory spin-offs from the recommendations that are embedded in this section of the Report. The past two or so decades have been the scene of an increasing devolutionary pressure across the continent which, by extension, affects a large number of countries worldwide. Kenya has not been an exception. Right at the core of its key pressure point is the imperative of more direct citizen participation. Although the political build-up of this pressure constitutes a highly heterogeneous process, proceeding to different degrees of decentralization and following different political rationales for citizen engagement in matters of public administration, citizen participation remains a cross-cutting concern, the operationalization of which should, at best, find unmediated expression in as many statutory provisions as may be required for a successful implementation of the Constitutional provisions of a devolved system of government.
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The Constitution marks a turning point in Kenyas long history of both nation building and democratization of its state sector, the market and civic sectors. The two mutually reinforcing processes are anchored on normative pillars of: subsidiarity, solidarity and sovereignty of citizenship. Together and in a complementary manner, they define the extent to which devolution will require the involvement of an active citizenship with the capacity and democratic will to build a viable nation state, ministering the social development interests of a harmonious society. During the public consultations, Kenyans of different walks of life may have resorted to different ways of expressing their desire to exercise the right of participation as citizens, particularly within the context of the new devolved system of governance. But common to all that they shared with the Task Force regarding their basic desire to become real sovereign citizens through direct participation in public affairs, is the unmistakable pursuit of engagement in autonomous spaces away from any form of manipulation; spaces that offer greater scope for reconfiguring hitherto skewed power relations and the possibility of extending democratic practices beyond political manoeuvres by those in power. In this particular regard, Kenyans are unanimous in their uncompromising demand for citizen participation away from sham involvement in invited spaces that are merely opened up by the state sector to non-state actors for cosmetic endorsement of predetermined government policies. This demand is borne out of real experiences with actual unitary governmental schemes of ersatz mechanisms that are designed to pass for citizen participation. Most of them still remember, with disquiet, how Poverty Reduction Strategy Papers (PRSP) merely increased their hope for real citizen participation without bringing them anywhere near real participation in public affairs. The CoK 2010 builds on a rich and long struggle for citizen participation in the public policy-making process. At its core is the transformative agenda for democratic citizenship, as an approach to citizen empowerment, which is increasingly becoming a vital element of democratic theory and practice all over the world. Inspired by the spirit of The African Charter on Popular Participation in Development and Transformation of 1990, the basic principles underlying the practice of stakeholder engagement inform the on-going discourse on the management of sustainable societies. As a central principle of public policy-making, it presupposes that all levels and functions of government should seek to build citizen and stakeholder involvement into the respective policy making processes and activities. This means that if public participation is to be meaningful and effective, citizens have to be involved in the design and rolling out of the entailed process in order to guarantee optimal democratic ownership of the outcomes.
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Kenyans, in their large numbers, appreciate the fact that the main aim of devolution is to bring public services closer to the people. But most importantly, they are keen to engage public processes that shape their destinies in a manner resonating richly with their democratic will and social development needs. It is against this background that public participation in governance has been received with near euphoric optimism and, by that same token, acquires the necessary prominence as it informs the main thrust of devolution.
10.2.2 Basic Elements of Citizen Participation

Citizen participation is crucial in ensuring the protection of rights, transparency, accountability, equity, self-determination influencing decision making, effective democratic citizenship, meaningful dialogue as discussed below 10.2.2.1 Citizen Participation as a Right With the enlargement of the Bill of Rights, as one of the transformative pillars of the CoK 2010, and the attendant deepening of the reach of subsidiarity beyond its cosmetic limits, Kenyans have been keen to turn the page and begin the long journey towards a more progressive relationship with different levels of government. Broadly, they share the belief that this can only come about as a result of: the historic broadening of the strategic objectives and the institutional strengthening of the normative wirings of sovereignty of citizenship; keeping alive the promises of a devolved developmental state; and being ready to subvert the typical spaces of invitation, that have been used by oppressive governmental systems to promote a false sense of participation under conditions that have never allowed for the construction of politically and economically sustainable societies. A great majority of Kenyans aver that it is time for the major deficient and non-meaningful forms of participation to give way to increased accountability, transparency and equity-enhancing solidarity. The optimism is shared across ethnic and party-political divides and by that same token forms the basis for driving the necessary consensus around broadly accepted sites, modalities and policy framework/statutory requirements for direct citizen involvement in decision making. The democratic limits and normative deficiency of solely relying on technocratic and bureaucratic monopoly of decision making are no longer an issue for any meaningful debate. Experience in South Africa has shown that the few formal and statutory spaces designated for civic engagement are usually hogged by more organized CSOs, leaving individual citizens and less formally organized sections of society excluded from participation. Yet, as far as the need for impacting social change is concerned, it is
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the activities of less organized, more activist oriented actors which have registered the most impressive successes; with impacts that have brought the most significant changes in governance in South Africa. It is therefore imperative that such informal forms of citizen participation, and relevant policy frameworks and subsidiary legislations, equally protect their unique opportunities for participation. The composition of such citizen participation formations are more effective when they draw upon civic commitments of ordinary citizens, representative interests of County Assembly members, technical County government officers, CSO representatives, religious and development partners. To this particular extent citizen participation formations should be demographically representative and socially inclusive of all stakeholders and thus should cut across youth, women, retired professionals, marginalized groups and faith based organizations who offer more civic value-based contributions to upholding community interests. This is the surest way to enhance coordination, joint learning and knowledge sharing among citizens, and also to enhance quality and coherence in policy advocacy. With the increased impact of action research and better communication it is expected that uptake by policy makers will be guaranteed All over the world, citizen participation is generally a costly affair. This is more particularly so if the task of enhancing the capacity of the communities and government personnel in embracing and utilizing participatory approaches remains a core pillar of good governance. Financial support for citizen participation should therefore be a collaborative effort among all the key stakeholders, with public resource playing a key role. In this particular respect, the County governments should partner with the private sector and citizens in funding citizen participation. This should be done as a matter of obligation rather than as a means of insinuating a controlling hand into the domain of citizen participation. The operational modalities of the above citizen participation formations should be dictated by the service delivery needs, sectoral/functional jurisdictions and the political auspiciousness obtaining at different levels and units of county government. Going by the experiences in South Africa and the Philippines, general purpose citizen platforms (as suggested by a section of the public consultations and submissions) are appropriate for particular civic actions e.g., petition, public hearings, generating issues for social budgeting etc. This should not obscure the specificity of service delivery needs of the County populations and, therefore, the necessary focus with which citizen intervention should be designed and carried out on particular civic platforms. With the increasing specialization of operational focus among CSOs, mushrooming of interest groups among the ordinary citizens and single-issue based advocacy 179
interventions increasing in appeal, it is imperative that such spaces are preserved for self-articulation of interest groups and thus catered for in both policy framework and legislation. 10.2.2.2 Public Participation and Transparency The right of access to information and the transparency that comes with it underpin two distinctive yet mutually reinforcing principles of democratic governance: publicity of citizen action and transparency of public administration. It is the strategic conflation of these into a unified scheme of democratic social praxis and relations that completes the circle of citizen participation and participatory/open government. Experiences in countries like post-apartheid South Africa have produced examples from which conclusions can be drawn to the effect that even with a plethora of formal mechanisms of citizen participation, the bias in favour of groups with the capacity to self-organize as opposed to those that are unable to do so continues to militate against the possibility of public authorities benefitting from such mechanisms by understanding and responding to the social development needs of the poor. In our not-very-unique case the imperative of transparency in institutions and processes of governance are believed to provide for: Autonomous spaces and open opportunities for stakeholder engagement in public processes in general and in decision making in particular, Predictable instances and opportunities for enforcing and realizing the full expression of democratic citizenship of sovereign peoples, Direct and indirect effects and impacts of citizen inputs into consensus building in decision making Information rich and knowledge-bearing citizenry with the capacity to contribute to and question policy decisions.
In all matters relating to economic and political governance, the Constitution in Article 201 (a) requires unqualified openness and unlimited accountability. Kenyans have been pressing for the actualization of the underlying imperative for many years. In the process they have demonstrated unmistakable interest in having the relevant provisions of the Constitution implemented with the necessary fealty to the spirit of an open society. There is no doubt that realizing this will require appropriate policy as well as legislative measures that will place unhindered freedom of information and related citizens rights and obligations squarely within the ambit of democratic openness. Best practices are available all around us and can be the best sources of ideas that should feed into an appropriate legislation which must take into account our unique history and culture. 180
Participation enhances transparency of interaction in the public domain through such facilities as notice board announcements of job opportunities, recruitments information; social/participatory budgeting; opening the budget process to citizen participation; procurement transparency and oversight committees (part of which will be the requirement that procurement records, including a detailed contractor/supplier profile be made available to the public); monthly revenue and expenditure reports; quarterly development status reports; bi-annual monitoring report prepared through the Sub-County Citizen Forums; County and Sub-County Assemblies; monthly public revenue and expenditure forums; and quarterly face-to-face question and answer sessions with the governor and senator of each County. The legislative elements of each of these instruments and platforms for citizen participation may vary from sector to sector and from County to County. But the overarching national legislation should spell out the normative and ideological foundation of the right of citizens to take part in the making of all decisions that affect their lives. From this the counties can take cue and come up with statutory measure that are not only consistent with relevant legislations at the national level but those that reflect the dynamic of citizen participation needs at that level. Whatever the case, such elements must include: equality before the law, solidarity among citizens, accountability of public authorities and citizens, transparency, publicity of actions and intentions of the state/all its organs and state as an instrument of a balance of social forces in society, serving it rather than lording it over the stakeholders. The above citizen participation platforms should be complemented by less formal (but protected by either policy frameworks and/or statutory promulgations) citizen participation formations like neighbourhood associations/forums, regular or occasional Town Hall meetings, information bulletins, notice boards, suggestion boxes, web based and mobile phone (SMS) service delivery monitoring, platforms like Fix-myStreet in England, HUDUMA in Kenya and others. In addition, communication laws will need to be changed to support and accord with the popular need for TV, FM and community radio stations ministering to the information and communication needs of the counties and their communities. 10.2.2.3 Citizen Participation and Accountability With widespread impunity continuing to afflict Kenyas body politic and the management of the economy, many Kenyans have welcomed the CoK 2010 with even greater expectations in respect to better opportunities for their empowerment against the preponderance of state patrimonialism. Most of them are optimistic that, armed with the Constitutional provision on accountability of public authority, they are just a short distance away from slaying the legendary dragon of impunity. Ordinarily, accountability is often used synonymously with such allied concepts 181
as responsibility, answerability, blameworthiness, liability, and other terms associated with the expectation of account-giving. As a significant aspect of good governance, it has been central to discussions pertaining to decision-making challenges in the public sector, non-profit and private spheres. In public sector leadership roles, accountability amounts to the acknowledgment and assumption of responsibility for actions, decisions, policies and outcomes. This includes the administration, governance, and implementation within the scope of the role encompassing the obligation to own up, report, explain and be answerable for the consequences. In order for accountability to be real, effective enforcement mechanisms must accompany the policy frameworks, statutory provisions and by-laws that will be required to anchor it within the domains of binding rules, the infringement of which will attract deterrent actions by legitimate authorities on behalf of the people but not for tendentious political competition. 10.2.2.4 Citizen Participation and Transparency Freedom of information is the cornerstone to good governance, meaningful participation, and efficiency-enhancing transparency. It is, therefore, recognized by a broad majority of the people as a fundamental human right without which the claim on and the exercise of democratic citizenry and upholding of democratic values of equality and justice remain a pipedream. Sustainable democracy, therefore, depends on a knowledgeable citizenry whose access to a range of information enables it to participate more fully in public life, helps to determine priorities for public spending, receives equal access to justice, and holds its public officials accountable and for that matter more responsive to the social development needs of the entire population. Inadequate access to public information allows corruption to flourish and breeds unequal access to public resources; and since politics, at its most basic level, is about resource distribution decisions and, for that matter, the red meat of politics, lack of transparency in public affairs is, therefore, a recipe for the dark forces in society to insinuate their malign influence over the development of appropriate social capital. The benefits of such social capital can only be maximized if it is sustained by efficient management of knowledge as a conflated product of free, accessible, accurate and timely information. As an imperative of good governance, transparency is provided for in the Constitution by the requirement for County Assemblies to conduct their business in an open manner, to hold sittings of their committees in public and to facilitate public participation and involvement of citizens (Article 196) (1) (a) (b) in matters of public interest. Budget literacy, not only among the elite stakeholders in the urban areas, is a key ingredient of effective citizen participation. Access to budget information and citizen involvement in all stages of the budget preparation process will only be useful if the 182
budget information is appropriately disaggregated to ensure maximum transparency with regard to cost per sector, County, Sub County and Ward. Only then can citizens appreciate their direct involvement in a process that makes meaning for them.
COUNTY VISIT SUBMISSIONS ON PARTICIPATION Develop a Legislation e.g. Participatory Act Establish Sub County Citizens Forum (SCCF) to scrutinize county project planning, budgeting and implementation Forums, neighbourhood associations and Focus Group Discussions (FGDs) Community Based Monitoring System (CBMS) Ward Citizen Forums (WCF) to enable citizen engagement with the right to access all official records for sectoral and county departments. Establish information centres to access all county information County magazines/monthly newsletters/Information bulletins Establish a Commission that will ensure development Create Ombudsman and Public Complaints Standing Committee Service delivery should be community driven through committees e.g. County Education Committee Organize public barazas Establish a TV station and FM radio stations Broadcast the County Assembly proceedings to the members of the public Notice boards/suggestion boxes/websites SWAP, service charters and (social networking facilities ) County calendar of events so that the citizenry is aware and can participate Community Development Officer who will do planning, monitoring, act as a convener, secretary and information disseminator Continuous liaison among the County, constituencies, locations sub-locations and at village level Social accountability reports Regular consultations with children/guardians to identify needy children, drug and sexual abuse victims and to include children in children issue prioritization The Senator should have quarterly meet the people forums to listen to the people/State of the County address Legislate designated days when the Senator spends time listening to the needs and concerns of County residents The Governor to have face-to-face forums with the public to answer their questions There should be continuous civic education to sensitize the public on the importance of their involvement in public affairs. Start at the micro-level by encouraging participation in school and church committees Citizens Assemblies at sub-county level Customer care desks in each county
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10.2.2.5 Citizen Participation and Equity Equity in its prescriptive usage, and as the ideological underpinning of democratic governance, has a close connection with ethics, morality and justice, in general, and distributive justice in particular. From antiquity onward and for all societies on earth, equality has been considered a constitutive feature of justice. The majority of Kenyans agree. Throughout our history, first as colonized and secondly as a decolonized society, emancipatory movements have used the language of justice to pillory certain inequalities among different sections of our society. But what exactly is the connection between equality and justice, i.e., what kind of role does equality play in the theory and practice of justice? The role and correct account of equality, understood as a critical issue of social justice, is itself a difficult philosophical challenge; and one that hardly lends itself to easy understanding and measurement at the level of outcomes, but rather as a condition that is best appraised at the level of social inputs, such as access to all the basic social and economic services (e.g., education, health etc.). This explains, to a large extent, the failure nearly everywhere in the developing world of neo-liberal attempts to reduce poverty. This is because they have relied on the poverty index and not the causes of poverty, which remain concealed behind all manner of marginalization, including poor economic and social infrastructure (poor roads, lack of good schools, no electricity, no clean water, no health facilities). In an attempt to clarify this, philosophers have defended a wide variety of principles and conceptions of equality, many of which are reflected in the Constitution that Kenyans have adopted. The presumption of equality is a prima facie principle of equal distribution for all goods politically suited for the process of public distribution. In the domain of political justice, all members of a given society, taken together as a collective body, have to decide democratically on the fair distribution of social goods. Applied to our political situation and domain, the presumption of equality requires that everyone, regardless of tribal, gender, religious, generational and regional differences, should get an equal share in the distribution of public resources including, public infrastructures, employment opportunities and capacities (Article 10. (2)(b). If the voices of every section of society, but more particularly from the marginalized in society, could be heard loud and clear, for a meaningful dialogue to ensue and for a binding consensus to be driven leading to a re-balancing of power relations in society in favour of equitable distribution of public resources around the principles of solidarity, conflicts in society would be reduced to manageable levels. Research in Scandinavia and parts of Latin America has established a positive correlation between popular participation, equity and a reduction of conflicts. If citizen participation is embedded in the spirit and practice of devolution the nation building and statedemocratization challenges Kenya has been grappling with will be things of the past.
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10.2.2.6 Citizen Participation and the Right to Self Determination Citizens are part of a given society as self-actualizing individuals. It begins with the assumption that people are active organisms, with evolved tendencies toward growing, mastering ambient challenges, and integrating new experiences into a coherent sense of self. The natural tendency towards self-determination does not, however, operate automatically and certainly not in a vacuum, but instead requires on-going social interactions and available social nutriments and support systems. That is, the social context can either support or thwart the natural tendencies toward active engagement and civic growth, or it can catalyse lack of integration, defence, and fulfilment of need-substitutes. Thus, it is the dialectic between the active/participative citizen and the social context that is the basis for self-determination. Self-determination requires a democratic space for citizen engagement for its realization. Within self-determination, the nutriments for sovereignty and the accompanying self-actualization and functioning are specified using the concept of social-psychological needs for relative autonomy, social competence, and relatedness. To the extent that the needs of self-determination are continuously satisfied, citizens are more than likely to grow into well-adjusted members of a given society; but to the extent that they are thwarted or starved of democratic instrument for effective participation, the people are more than likely to be disposed towards social anomy, ill-being and non-optimal functioning. The darker sides of human behaviour and experience, such as certain types of psychopathology, prejudice, and social aggression are understood in terms of reactions to deficits in such basics as self-actualization having been thwarted. 10.2.2.7 Public Participation and Decision Making The process and act of influencing decision making by citizens presupposes that: Rule-making behaviour by public authorities is subject to inputs by citizens for purposes of popular ownership and free-willed fealty to the outcomes of the decision making in question, It is mandatory as a means of improving the legitimacy and binding authority of decision making and its outcomes, It removes the formalistic trappings of democracy and essentially disciplines the practice of it thereby making it a way of life rather an imposition by the whims of a patrimonial state. It promotes and protects inclusivity in the public life of a community rendering it the only viable basis of democratic citizenship built on the imperative of equity.
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All this is important for eventual democratic ownership of the effects of decisions made under the above conditions. Experience with LAPDEF in general and CDF and LATF in particular has taught Kenyans that participation is meaningless if the rules of engagement are unilaterally made away from popular participation and mutual accountability. Kenyans, speaking through the consultative forums, have been very clear that they would like to have more say in how they are governed, both within the realm of the economy and politics. And they are ready to benefit from relevant experiences in societies where citizen participation in decision-making has borne social development fruits. The Constitution provides for the participation of the public in the exercise of the powers of the state and in making decisions through indirect and direct involvement of the people in the process of policymaking (Article 232. (d) and participation in the legislative business of the National Assembly, Senate and County Assemblies (Article 118 (1) (a) (b), 124.(1) (b), 124. (4) (c), 196. (1) (a) (b)). The point is to fortify the entailed Constitutional gains through practically consistent legislations. Some, if not many, of the civic intervention opportunities and sites of citizen participation referred to above will address a good number of the democratic challenges facing the people of Kenya in their incremental struggle to make national and County governments more responsive to the social development needs of all sections of society. Citizen Participation and Meaningful Dialogue It is only through open and appropriate deliberative processes that the legitimacy of decision-making will justify binding policy action. This requires the creation of autonomous democratic spaces in which citizens can freely process their social demands and, as a necessary consequence, engage public authorities in making sure that the outcomes of such processes resonate deeply with their social development needs. This should end up turning them into architects of their own destinies and makers of their own history. On how to ensure that the quality of popular dialogue remains high and meaningful, the Kenyan public have made suggestions that range from open neighbourhood forums, town hall meetings, participatory budgeting to technology assisted/webbased monitoring and discussion platforms. New theoretical developments as well as practical implications, based on best practices elsewhere in the world, should be the basis upon which any legislative anchoring of these democratic innovations will need to rest.
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10.2.3 Access to Information and the Right to Effective Democratic Citizenship

Everywhere in the country and at every level of government, citizens want to know what is happening around them; with a view to manage their lives in a fairly predictable political-economic environment. They seek both general and practical knowledge about their proximate and wider environment in order to equip themselves with all that it takes for effective participation in public affairs. This, they averred, should include unhindered access to the minutes of the various committees of the County Assembly, the Executive Committee meetings. Spectator sport, reserved for passive subjects, in the way of the limitations of representational engagement with politics and the economy, will no longer do for them. They said as much during the consultations and the entailed message continues to reverberate throughout the media. Enforcement of democratic citizenship, their messages convey, requires informed engagement with public policy and effective citizen action. This is based on the assumption that: Information is power and power to influence public policy decisions is the right of every citizen. Every citizen is, therefore, entitled to easy access to and practical use of relevant information for society to benefit from his/her participation in its affairs. For effective participation to benefit society it must rely on accessible, timely, accurate and user-friendly information.
The spirit behind the above social demand is faithfully captured in the Constitution, particularly where it states, with all the necessary clarity, that every citizen has the right of access to information held by the State (in the Bill of Rights, Article 35). In this particular respect it will be necessary to revisit the provisions of the Freedom of Information Bill with a view to synchronizing its legal mechanisms with the spirit of the expanded Bill of Rights in the new Constitution. The stalled Bill seems to enjoy the support of civil society in general and a wide variety of interest groups in particular. What remains to be done is for a renewed attention and concerted effort to be directed at first-tracking its legislation, particularly given that it is one of the most important pillars of citizen participation.
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10.2.4 Process and Modalities of Public Participation

Depending on status, role and the station in the life of a given individual, and given the right to choose in which participatory process and modality one would like to be part of, citizens are more than likely to come up with a wide range of propositions. Whereas some may prefer to be part of a social movement, militantly challenging the ideological rationale of policies driving our political economy, others may choose to take part in a public baraza, listening to the local chief announcing security measures to be undertaken by the Provincial Administration. There are, therefore, as many citizen participation processes and modalities as there are different sections of a given social order and corresponding social development interests. In the Kenyan case, it is hoped that the political and cultural dynamics which are going to play out in the various counties will provide unique circumstances on the basis of which different actors from civil society and the state sector will find their location and operational modalities. Whereas it will be necessary, if not prudent, for a few overarching policy frameworks and legislative measures governing the operations and management of citizen participation spaces to come at the national level, it is advisable that ample room be reserved for the Counties and sub-Counties to live up to the distinctiveness afforded them by the Constitution; by being allowed to involve their communities in the design of the architecture of citizen participation that will accord with local civic and governance needs and challenges. A grand architecture designed from the top is the reason why Kenyans have been engaged in a protracted struggle for re-negotiation of a better social contract with themselves and the state. Finally and most importantly, citizen engagement sites, modalities and processes like the Social Budgeting Framework, community libraries, capacity building will need to be disaggregated along functional and sectoral lines for appropriate statutory institutionalization to follow. The critical elements of both policy frameworks and sector-sensitive legislative measures, particularly those that need to be mainstreamed in the various sector and function-based statutory provisions, e.g., in the area of environmental protection, social budgeting, health related areas of civic intervention etc., should draw upon the knowledge of the host sector and inputs from a rich expertise within the relevant non-profit sector. However, the most important aspect is the normative and framework elements of citizen participation that need to be captured in a broader national policy framework from which relevant organic laws addressing the imperative of citizen participation should cascade into different legislative measures. Such a framework should lay the legal infrastructure for citizen participation and bring out strategic, administrative and operational elements of the underlying constitutional provision. Its main elements should include: subsidiarity as an overarching principle, dynamism of popular jurisdiction, autonomy of individual and
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collective action, solidarity with others and sovereignty of the citizen. The rest of the legislations should be mainstreamed into relevant sectoral jurisdictions, elaborating with the necessary faithfulness to the spirit and letter of the policy framework and the provisions of the organic legislations that originate in the subsidiary legislations at the County level.
10.3 Protection and Inclusion of Marginalised Communities and Groups

The Constitution of Kenya 2010 (the Constitution) provides a legal framework for the recognition and protection of the rights of minorities and the marginalised communities and groups (herein after referred to as the marginalised). The Bill of Rights provides a framework for affirmative action that ensures that minorities and the marginalised are brought up to speed in social economic and cultural development. This sub-section begins by highlighting the terminologies of minorities and marginalized groups which are important for understanding discussion in the sub-section. This is followed by a presentation of relevant principles that inform the protection of marginalised groups and communities; problems faced by the marginalised groups, remedies provided under the Constitution, while the last sub-section makes proposals for legal, policy and institutional measures.
10.3.1 Definition of Terms

10.3.1.1 Marginalised COmmunity The CoK 2010 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. a traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole; b. c. 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 i. ii. 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;
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Of the above definitions, the term that demands further explanation is indigenous community. This term requires critical analysis because it is not only controversial but also because its use at international level has been opposed by African countries. The argument has been that everybody in Africa is indigenous and thus there should be no need for special protection of other people in the name of indigenous persons. What does Indigenous People or Community mean? There is no single definition of indigenous people. In fact attempts to have one definition have been resisted. According to the African Commission on Human and Peoples Rights (ACHPR), the danger of a strict definition is that many governments may use a strict definition as an excuse for not recognizing indigenous peoples within their territories. According to the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms: There is no internationally agreed upon definition of indigenous peoples. Different states adopt different definitions in terms of their particular contexts and circumstances. The term indigenous is frequently used interchangeably with other terms, such as aboriginal, native, original, first nations or else tribal or other similar concepts. In some states local terms might be commonly used that are not easily translatable. In still other countries, no formal designation exists even though there might be general agreement that such populations do in fact inhabit certain areas of the country. And in still other countries, the existence of indigenous groups is denied altogether and therefore their definition becomes even more problematic, yet the absence of an international definition should not prevent constructive action in the promotion and protection of the human rights of indigenous peoples. 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.
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Art.1 (2) of the ILO Convention provides that self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups. It is important thus to recognise that in the Kenyan context, there is likely to be a challenge dealing with indigenous people because the list is endless if self-identification is to be taken as one of the criteria. There is therefore fear that self-identification will be used as a means of taking advantage of Constitutional provisions by a group which in the real sense is not indigenous. This can be sorted out by requiring that such a group must not be the dominant one in society. There are factors that can point to the concept of non-dominance. They are; Numerical inferiority; Ways of life and social organisation; and Distinctive cultures.
It is however acknowledged that a group may be the majority but be the victims of marginalisation by another group with a smaller population. In most cases, indigenous groups are referred to as minority because in many instances they are the numerically inferior group. However, as discussed below, there is a difference between indigenous and minority groups. Indeed, the ACHPR has recognized a number of misconceptions in Africa about indigenous rights. The first misconception is that, to protect the rights of indigenous peoples would be to give special rights to some ethnic groups over and above the rights of all other groups within a state. Since certain groups have been discriminated against based on their unique circumstances, then a call to protect them is not discriminatory but an affirmative action measure to address injustices. The second misconception the Commission identified which is closely related to the first misconception is that the term indigenous is not applicable in Africa as all Africans are indigenous. According to the Commission: When some particular marginalized groups use the term indigenous to describe their situation, they use the modern analytical form of the concept (which does not merely focus on aboriginality) in an attempt to draw attention to and alleviate the particular form of discrimination they suffer from. Professor Stavenhagen reinforces this point of view by stating the definition of indigenous people as follows:
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From a human rights perspective is not who came first but the shared experiences of dispossession and marginalization. The term indigenous is not intended to create a special class of citizens, but rather to address historical and present-day injustices and inequalities. The third misconception identified by ACHPR is that talking about indigenous rights will lead to tribalism and ethnic conflicts. According to the ACHPR: Giving recognition to all groups, respecting their differences and allowing them all to flourish in a truly democratic spirit does not lead to conflict, it prevents conflict. What rather creates conflict is that certain dominant groups force through a sort of unity that only reflects the perspectives and interests of certain powerful groups within a given state, and which seeks to prevent weaker marginalized groups from voicing their particular concerns and perspectives. Or put another way: conflicts do not arise because people demand their rights but because their rights are violated. There are three major and crucial differences between minority rights and indigenous rights. First, minority rights are formulated as individual rights whereas indigenous rights are collective rights. Second, unlike minorities, the indigenous groups are characterized by a strong cultural bond to their lands, without which they would not exist as a cultural entity and their lives would be in great danger. Third, while minorities are identified based on numerical inferiority within a state, the indigenous identify themselves in regard to particular territorial land whether within a country or even beyond the borders of a state. Indeed, they claim their rights based on social factors that existed even before the state was established. The UN Rapporteurs report identified indigenous people in Kenya to be the minority hunter-gatherers and pastoralists who live mostly in the arid and semi-arid lands, such as the Elmolo, Maasai , Endorois, Borana, Gabra, Pokot, Samburu, Turkana, and Somali, and hunter-gatherer communities whose livelihoods remain connected to the forest, such as the Awer (Boni), Ogiek, Sengwer, or Yaaku. Other groups such as the Nubians consider themselves as a minority that has also been marginalized, but in an urban context. Marginalised Groups Article 260 of the CoK 2010 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 192
social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In this case women, youth and people with disabilities are considered marginalised groups in Kenya. There are various considerations that must be observed when determining marginalised groups and communities. These are: historical injustices which include: the poverty index, adverse climatic conditions, baseline data, landlessness/squatters, infrastructure development, economic status and special interest groupings e.g. persons with disabilities 10.3.1.2 Minorities There is generally no single agreed definition of minorities in international law. A 1977 study made for the United Nations defines minorities as; A group numerically inferior to the rest of the population of a State, in a nondominant position, whose members--being nationals of the State--possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. In Poland, an ethnic or national minority is defined as a group of Polish citizens which wishes to preserve its language, culture, traditions and national (or ethnic) consciousness and which remains in minority in relation to the rest of society. To qualify as an ethnic or national minority ones ancestors must have been living in the present Polish territory for over a hundred (100) years. This definition is controversial because it omits new cases of minorities or future minorities. In a number of counties, the citizens emphasised that to be a minority in a particular county, you must have been born there. Still others insisted that the County should be your ancestral land. However this must be weighed against the need to avoid polarization and maintain national unity. The above creates a problem of exogenous and endogenous minority. There is need to deal with the issues of endogenous and exogenous minorities. According to Professor Van der Baken, endogenous and exogenous minorities are defined as follows: Endogenous minorities are those ethnic groups that have traditionally lived in the territory of the region. Exogenous minorities are ethnic groups that have migrated to the region in the recent past and are endogenous in another region. We could also call them internal migrants. 193
In most of the Counties, the proposal was to afford protection in the County Government only to those who originate from the County. People were opposed to the protection of economic migrants. There was insistence that for a group to receive privileges accorded to minority and marginalised groups and communities in a County, they must have substantial ties with that County. There are two ways of defining minorities. First, minorities are defined based on national demographics and second, minority is defined using demographics within the geographical boundaries of a county. The former will accord protection to national minorities while the latter will afford protection to even those who are a national majority if they find themselves in a situation where they are a minority in a particular County. The specific rights of persons belonging to national or ethnic, religious or linguistic minorities include the right to enjoy their own culture, to practise their own religion, to use their own language, to establish their own associations, to participate in national affairs etc. These rights may be exercised by persons belonging to minorities individually as well as in community with other members of their group. There are various factors that must be considered in determining minority groups: the poverty index, numerical inferiority, climatic conditions, baseline data, infrastructure development, economic status, historical injustices, special groupings e.g. persons with disabilities, language, religion and age.
10.3.2 Principles for the Protection and Inclusion of Marginalised Groups

10.3.2.1 The Principles of Participation The participation of marginalised groups and communities in the affairs of a state is crucial in a democratic society. Indeed, when the marginalised groups are involved in decision-making and implementation of laws and policies, they are able to influence the governance of a state in a manner that will promote the attainment of equity. Article 10 of the CoK 2010 recognises public participation as a value that should guide the interpretation and application of laws and policies in Kenya. However, these values must be made operational through established legal mechanisms and institutions, which will ensure effective participation of the marginalised in public life. The institutions must exercise authority and responsibility to ensure that the minority, marginalized groups and communities realise their Constitutional rights.
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To attain the principle of participation, states are expected to respect both the process and outcome of decision-making. Governmental agencies and independent commissions and offices should pursue an inclusive, transparent, and accountable process of consultation in order to ensure that minorities and marginalised groups and communities are catered for. There must be a monitoring and evaluation mechanism that will ensure that the desired objectives are achieved. 10.3.2.2The Affirmative Action Principle Affirmative action has been defined as those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. According to the United States Commission on Civil Rights, affirmative action is a contemporary term that encompasses any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex, or disability, along with other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and/or to prevent the recurrence of discrimination in the future. Affirmative action can also be defined as public or private actions or programs which provide or seek to provide opportunities or other benefits to persons on the basis of, among other things, their membership in a specified group or groups. Affirmative action is often used to denote a positive step taken, as well as more specifically to connote, an attempt to reverse or mitigate past discrimination and historical injustices. Affirmative action is intended to address various objectives namely to: i. Remedy past discrimination Affirmative action enables a state to relook at past discrimination meted out against marginalised groups. The intention is to erase the effects of past discrimination. This is done by favouring the victims in a manner that will hasten their integration into the mainstream society. The implementation is through programs that can benefit particular individuals of a society or group that are marginalised. It can also be done by addressing the marginalised group as a whole through reparation programs and projects. In the former instance it can be done by employing individuals, providing education scholarships, distributing business capital to individuals among other actions. In the latter case, infrastructure such as roads, electricity supply, and water supply can be used to target a group as a whole. The CoK 2010 takes both the individual benefit approach and the whole group approach. Under Article 56 education, employment and appointment opportunities will be accorded to individuals belonging to a minority or marginalized community and 195
group. Under the same Article, communities are entitled, as a group, to benefits such as development of cultural values, languages and practices, access to health services, infrastructure, water, and electricity among others. Article 204 creates an equalization fund meant to provide basic services to marginalized areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible. The marginalized areas are supposed to be places where marginalized communities exist as clarified by Article 204 (3) (b). ii. Enhancing diversity. A state will be able to develop with better values, peace and stability if diversity is natured and appreciated. Affirmative action will help build a diverse and inclusive society. It is therefore imperative to take deliberate measures such as favoured consideration of companies of marginalised groups in public procurement and allocation of contracts, school admissions, and employment among others. iii. Increasing the political power of the marginalised. Affirmative action can increase representation and political power of the marginalised. Creating special electoral units that will increase the representation of marginalised groups especially the minorities does this. On the other hand political appointments can be done to fill the gaps where marginalised groups may not get a chance through popular vote. It is however important to come up with a system that will ensure that those appointed through political parties are persons who are desired by the respective groups.
10.3.3 Problems Faced by the Minorities and Marginalised Groups and Communities
10.3.3.1 Overview
First and foremost, the major problems faced by minority and indigenous people are loss of land rights, historical land injustices, exploitation of resources without their participation or accruing benefits. There are various examples of the above mentioned problems in the Kenyan context. In the Endorois case before the ACHPR, the Complainants (Endorois) alleged violations resulting from the displacement of the Endorois community, an indigenous community, from their ancestral lands, the failure to adequately compensate them for the loss of their property, the disruption of the communitys pastoral enterprise and violations of the right to practise their religion and culture, as well as the overall process of development of the Endorois people. Such cases
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are replicated in other communities like the Ogiek and Sengwer who are under constant evictions from their ancestral lands in the desire to protect forests. Probably the old and most cited land problems involve the Maasai and Samburu. Land problems among the Maasai date back to the pre-colonial period when the Maasai signed a treaty with the British Crown known as the Anglo-Maasai Treaty of 1904. This treaty was violated leading to the misappropriation of Maasai land. A case filed by the Maasai was dismissed on technicalities. Other cases involving the Ogiek have been instituted in Kenyan courts with no success.
As shown in the Endorois case, successive governments have perpetuated the colonial policies of depriving the minority/ indigenous communities land in the pretext that they are protecting the environment and natural resources. Lack of recognition of land rights has further advanced the marginalization and impoverishment of these communities. The second problem is the biased government 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. As a result of such policies, the problems now faced by the minority / marginalized groups are, soaring unemployment, weak presence in the public sector, violation of language rights and the lack of socio- economic development. Marginalized minorities are often left out of economic development. The most underdeveloped areas are where minorities are situated. This is in line with the past government policies that perpetuated the votes/charity/favour based approach to development. Often, you will hear citizens in Turkana, North Eastern, the Sengwer, Ogiek etc. complaining of being treated as second-class citizens. These groups are always faced with extreme starvation and instead of adopting long term policies to address their plight the government has focused on short-term relief programs. The third problem is lack of political representation, recognition and participation. By virtue of their numbers, the minority and marginalized communities are unable to have one of their representatives garner enough votes to win an elective office. There is also no meaningful participation in civil service and public offices where decision-making is made. This is partly because they are not educated or have been utterly ignored. The fourth problem is the denial of cultural rights. The minority indigenous groups have suffered loss of culture as a result of the domination by the other communities. The main objective of the colonial government was to erase the identity of smaller communities and thus to get them assimilated by the majority groups. The case of the Sengwer is a good example. 197
Kiptum and Odhiambo state: I agree then with the recommendation reported in the prescription that wherever possible the Dorobo should become members of and be absorbed into a larger tribe which they have most affinity. In view of the complications that would arise having Cherangany officially residing in two different Districts and under two separate Provinces, he (the District Commissioner) would reluctantly agree to the move (of Cherangany from Marakwet to West Suk) out of sympathy with the District Commissioner Tambach, Forest Preservation Policy, and provided that the Cherangany in question would agree to surrender their tribal identity..... With this kind of policy, loss of identify, language and culture has been systematically witnessed by the minority/indigenous groups. The fifth problem is that of insecurity. The areas occupied by the minority and marginalised communities have serious insecurity problems. Security will remain the greatest challenge in facilitating the economic development of the marginalized areas. The UN Rapporteur on indigenous people concluded that their livelihoods and cultures have been traditionally discriminated against and their lack of legal recognition and empowerment reflects their social, political and economic marginalization. The Rapporteur further stated as follows: The principal human rights issues they face relate to the loss and environmental degradation of their land, traditional forests and natural resources, as a result of dispossession in colonial times and in the post-independence period. In recent decades, inappropriate development and conservationist policies have aggravated the violation of their economic, social and cultural rights. The lack of social and health services in indigenous communities is especially hard on women and children, who suffer gender inequalities and discrimination, especially with respect to property rights, and harmful traditional practices that are also conducive to the increasing spread of HIV/AIDS amongst these communities. Sixth, minority groups are often excluded from accessing employment opportunities. In a country that largely relies on numerical strength, the majority groups domineer over the minority. The latter groups have no access to education which inhibits their ability to qualify for jobs. 198
Finally, the youth, women and disabled face a number of problems, which 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 the disabled; restriction of the freedom of movement and expression especially among the disabled; and inequality in attaining citizenship especially among women.
10.3.4 Solutions Provided Under the New Constitution

This chapter interrogates how the devolved system will ensure that the marginalised communities and groups plus minorities are going to be protected and involved in governance. 10.3.4.1Devolution as a Solution It is argued that devolution presents the best opportunity for dealing with marginalization. According to one author commenting on the Indian system: Federalism is no doubt, the useful answer for managing conflicts and accommodating the diverging interests and to establish peace and order in a pluralist democracy. Federalism is not only an effective tool for managing conflicts but it is widely considered as an effective instrument for protecting the democratic rights of people in the decision making process of different tiers of the polity.1 Though devolution has been projected as the best solution, Professor Keating outlines the criticisms of federalism in a divided society. He states thus:2 a. Where the federated or devolved units represent distinct nationalities, they will regard themselves as sovereign and self-determining, and their leaders will merely use the institutions as a way of expanding their powers and undermining the state. From this it follows, ironically, that federalism will only work in homogeneous societies (where we might think that it is not needed); Since the territory of a federated unit will never correspond perfectly to a nationality group, that federalism or devolution will merely create new discontented minorities within the new units, leading to recurrent challenges and divisions.
b.
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COUNTY VISIT SUBMISSIONS ON CRITERIA FOR DETERMINING MARGINALISED GROUPS a. Less populated areas, poverty index, historical injustice, infrastructure, baseline survey ,lack of services b. Marginalised are children with special needs, women, girls and handicapped people, displaced people, sick, aged and youth ,disabled, unemployed, People Living With HIV/AIDS, Marginalised Can be identified by tribe, age, religion, education, widows, ownership, elderly Per capita income, and physical environment can be used as objective way of determining marginalized groups. Minorities are determined by population size, level of drought and poverty. Single mothers and religious groups be considered as marginalised groups Development level, ASALs areas, socio-economic status, census, history of leadership, literacy level, elderliness They can be identified through the indigenous people framework. Census approach use social and economic indicators for identifying marginalized groups or use census figures to identify marginalized groups Marginalised groups are communities not allowed education during colonial period and are academically now marginalized. Need to deal with youth and unemployment problem as a way of addressing marginalization Youth have been focused on but little has been accomplished Set aside up to 15% of funds to cater for marginalised youth. Awareness creation through civic education i.e. educate people on matters of marginalization by providing information on minorities and marginalized members of community be made available at chiefs level and displayed in public. Sensitization of the marginalised communities themselves to understand that they have equal rights and setting up information Centres. Publish regular reports Public Participation & Communication including participation in development plans and inviting the public to make submissions through open Barazas and town hall meetings. Public to have access to county assembly debate proceedings Representation e.g. Executive members must be from all areas of county, women be included and youth be considered. Executive positions be advertised and running mate of governor be of opposite gender. Education should not be a basis for leadership position-marginalizes those that have not had similar educational opportunities and those that competitively vie for seats be considered for special seats if they are unsuccessful County govt. should have one third positions reserved for the marginalized in the county.(e.g Gender, people living with HIV/AIDS/disabled)
c. d. e. f. g. h. i. j. k. l. m.
n. o.
p.
q.
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COUNTY VISIT SUBMISSION-Continued r. s. t. u. v. w. Proper representation of minorities and the marginalized in all sectors of the government County to form disability committee and include disabled in each county committee and legislate for their protection Gender consideration in county governance Minority be given own wards 5% of funds be given to persons with disabilities Affirmative action for marginalized groups through legislation of affirmative action in county civil service and hiring of people with disabilities as well as a database for marginalized groups. Protection of youth through tender and managerial positions reserved for youth Infrastructure e.g. set up an Electoral College and establish an office or body at county level to deal with marginalised groups and set up an office and a resource and care Centre for people with special needs/challenges. County government should build schools for the disabled in each district. Infrastructure be based on full implementation of the Disability Act and engendering the legislation as a way of ensuring majority rights. The Human Rights Commission should establish offices at the county level Establish a Public participation and Oversight Committee Identity Cards be given to marginalized (e.g. Endorois and pastoralists) who do not have them. Friendly environment to cater for disable people Chiefs and church elders to recognize marginalised groups Political parties cannot protect minority rights (bias) Women friendly hours of business Respect for minority rights Funds: Access to equalization fund and poverty index and rates be used to determine allocation of Equalization funds. In addition the marginalised to determine how their funds are to be used. The poor and marginalised should be supported Fund be set aside for the elderly Marginalised groups be granted equal opportunities
x.
y. z. aa. bb. cc. dd. ee. ff.
gg. hh.
In turn Prof. Keating concludes that federalism or devolution in itself thus does not represent a definitive solution to conflicts of nationality. It may be a contribution to accommodation, but only in the right conditions and by paying attention to issues of institutional design.3 Through this policy Kenya has the opportunity of adopting laws, regulations, policies and strategies that will create the right conditions for devolution in Kenya. It gives Kenya the best opportunity to design the right institutions that
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protect the interests of the minorities, the youth, and persons with disability, women and other marginalized groups within Counties. Failure to do this will give birth to just another level of discrimination. According to Prof. Keating, for one to design the right institutions you have to understand the problems that devolution was established to solve.4 The overall objective of devolution in Kenya as indicated in the CoK 2010 was to diffuse power from the centre to the counties. The Constitution of Kenya lists the specific objectives of devolution to be among others;5 a. b. to foster national unity by recognizing diversity; to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; to recognize the right of communities to manage their own affairs and to further their development; to protect and promote the interests and rights of minorities and marginalized communities; and to ensure equitable sharing of national and local resources throughout Kenya.
c. d. e.
In cases such as federalism, further decentralization is encouraged to bring governance closer to the people. It is noted that: Decentralization no doubt, makes the federal system more democratically and politically balanced and establishes new institutional arrangements for political participation of different sections of people in a society having diversity and multiculturalism.6 It is further noted that: Decentralization facilitate to articulate the choices of these different groups and protect their cultural identity and this in turn helps to enhance the trust and sense of ownership of the people in a multi-cultural society.7 Further decentralization enables the people to demand that the government should deliver better services to the people and to redress social-economic inequalities. Further decentralization will take governance closer to the people and enable them to audit and hold the government more accountable.
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In India, the 73rd and 74th Constitutional Amendments created Rural Local Governments and Urban Local Governments respectively. These Local Authorities paved way for devolution of powers and resources further within the various States. In the Kenyan context, when the debate was raging, a number of communities were opposed to the number of Counties, their boundaries and the composition. In Bungoma County, the Sabaot were opposed to the CoK 2010 because they had been grouped together with a large population of the Luhya community. In ElgeyoMarakwet County, the Marakwet were opposed to them being grouped with the Keiyo because of past marginalisation. In Baringo County, many minority groups such as the Pokot, Njemps, Endorois and Arror feared the other dominant Tugen communities. In Migori County, the Kuria were opposed to being grouped together with the Luo majority. In Garissa County, the Abdalla clan of Ijara did not want to be grouped together with the dominant Abudwak and Aulihan clans. In our county consultation, these communities insisted that there had to be decentralized units known as Sub-county 10.3.4.2 Other Constitutional Solutions The CoK 2010 introduces the concept of the rights based approach to development. Development is no longer a gift but a right which all citizens regardless of their status are entitled. The CoK 2010 recognizes the fact that there are certain vulnerable members of the society who need specific attention and protection. The CoK 2010 thus makes provisions for affirmative action to remedy the injustices meted out to the marginalized groups and communities. To start with, Article 10 (2) of the CoK 2010 lists national values and principles of governance to include, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. As a matter of principle therefore, the people of Kenya agreed to protect the marginalized. Indeed Article 21 (3) provides that all State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. Article 27 (4) outlaws any state discrimination on the basis of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 56 provides that the State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups: 203
a. b. c. d. e.
participate and are represented in governance and other spheres of life; are provided special opportunities in educational and economic fields; are provided special opportunities for access to employment; develop their cultural values, languages and practices; and have reasonable access to water, health services and infrastructure.
There is need for making these provisions operational in the devolved government. In terms of political representation, Article 91 (1) (e) requires every political party to respect the right of all persons to participate in the political process, including minorities and marginalized groups. Article 100 requires Parliament to enact legislation to promote the representation in Parliament of, women, persons with disabilities, youth, ethnic and other minorities and marginalised communities. These positions are expected to be filled by the twelve nominees as provided for under Article 97 (c) of the Constitution. The objects of devolution under Article 174 (e) of the CoK 2010 include to protect and promote the interests and rights of minorities and marginalised communities. Article 177 (1) (c) provides that the County Assembly should consist of a number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament. Under Article 197 (2) (a) and (b) Parliament is required to enact legislation to ensure that the community and cultural diversity of a County are reflected in its County Assembly and County Executive Committee and prescribe mechanisms to protect minorities within counties. Protection of the marginalized groups is also reflected in the principles governing public finance. Article 200 (b) (iii) provides that the public finance system shall promote an equitable society, and in particular that the expenditure shall promote the equitable development of the country, including by making special provision for marginalized groups and areas. To that effect, Article 204 (2) obliges the National government to use the Equalisation Fund only to provide basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible. Under Article 204 (3) (b) the National government may use the Equalisation Fund either directly, or indirectly through conditional grants to Counties in which marginalised communities exist. Under Article 216 (4) relating to the functions of the Commission on Revenue Allocation, the Commission is required to determine, publish and regularly review a policy in which it sets out the criteria by which to identify the marginalised areas for purposes of Article 204 (2).
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10.3.5 Recommended Legal, Policy and Institutional Interventions

10.3.5.1 Embedding participation in County Strategic Plans Counties should ensure that development/strategic plans are prepared using the bottom up approach where views are collected from each local administrative unit. The concerns of women, youth, disabled, marginalized communities, children, and minorities should be captured in the County plan. Plans should be debated and adopted in the County Assembly. The CoK 2010 states that it is the duty of the County Assembly to receive and approve plans and policies for: (a) the management and exploitation of the Countys resources; and (b) the development and management of its infrastructure and institutions. The approval of these plans should also involve Senators, and members of the National Assembly from the County. But it is the County government that will take responsibility and leadership in the process. This will be useful in ensuring that the County government will not ignore any region, group or community in the process of development. This will also shield the population from the short-term interests of politicians. As per Article 220 of the Constitution, parliament must enact legislation that provides the structure of the development plans and budgets of Counties, the time the plans and budgets of the Counties shall be tabled in the County Assemblies, and the form and manner of consultation between the National and County governments in the process of preparing plans and budgets. County Plans must be consultative. The people have the right to determine the priorities and strategies for economic and social development. This includes the right to determine the health, housing, infrastructure, and other economic and social programs and, to the extent possible, to deliver these through their participation in County government. To ensure that these plans cater for marginalized groups and communities, there must be a binding monitoring and evaluation mechanism that will ensure that the County is protecting and involving the minority and marginalized groups in development. 10.3.5.2 Participation in Governance and Public Service As per the Constitution, devolution legislation shall reaffirm the requirement that minorities and marginalized be represented in the decision-making organs and within the power structures. That means that they must be adequately represented in the County Assembly and the Executive. Their participation should include involvement in public service. These are policy positions that County governments must report on.
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The legislation shall provide timelines within which County government shall report on the number of appointments made to ensure that minorities, marginalized groups and communities are adequately involved. The structures and decision-making processes of the counties should be made transparent and accessible in order to encourage the participation of marginalized groups and communities. 10.3.5.3 Community Interests, Delimitation of County Wards and Decentralisation Units The demarcation of the wards should ensure that minority groups are considered. Arguments for demarcation are based on the practice of ethnically based devolution. Indeed, the Kenyan devolution is ethnically based. Most of the Counties are inhabited by one ethnic majority. Although this creates national stability by making these communities determine their own social economic development and culture, it creates other minorities. It is for this reason that the ethnic minorities in certain counties have raised concerns. These issues have been raised by communities located in a number of Counties, for example the Kuria in Migori County, the Sabaot in Bungoma County, the Sengwer/Cherangany in Elgeyo-Marakwet and Trans Nzoia Counties, the Pokot in Baringo County. The challenge of official recognition of ethnicity is that with the benefit that comes with it, some groups that did not originally see themselves as separate ethnic units may begin to see themselves as such. This is the case in places like Nyanza where the Suba community may begin to see themselves as a separate group from the Luo. However, this is inevitable because some ethnically based Counties have been recognised. The recognition of ethnic or racial minorities is not new. The Ethiopian Constitution created ethnic based federalism with nine states namely: Tigray, Afar, Amhara, Oromia, Somali, Benishangul-Gumuz, the State of the Southern Nations, Nationalities and Peoples, Gambella and Harar. Of the nine states, the Southern State is multi-ethnic with most of the communities made up of small populations. According to one author: ... there are no less than 56 different ethnic groups (or - to use the official vernacular -nations, nationalities and peoples) in the region. Some of these groups have more than one million members (such as the Sidama and the Gurage), but most are very small, each amounting to no more than some tens of thousands of people. Despite the existence of some larger groups, it is important to note that not a single group has the numerical majority.8 Article 45 (1) of the Southern States Constitution provides a four-tier internal administrative structure: the regional/state level, the Zonal/Special Wereda, the Wereda level and finally the Kebele level.9 The Zones are ethnically based territorial 206
entity. This guarantees the representation of all ethnic groups in the regional assembly. In the same breath, Kenya should create wards and decentralisation units that will cater for the interest of the minorities. In the Ethiopian case, there is a distinction between the endogenous and exogenous minorities. Similar territories have been created for minorities in Canada, India and Bosnia Herzegovina where a special district called Brcko was created. In other countries, minorities are afforded protection through non-territorial federalism. This is meant to extend public support and privileges on a personal and non-territorial basis to members of a specific community. This is the case in the protection of Germanspeaking Belgians in Belgium. It is therefore necessary that where minorities are concentrated territorially, single member wards may provide sufficient minority representation. 10.3.5.4 Kenya National Human Rights and Equality Commission (KNHREC) and County Institutions The Commission should be the institution that monitors the participation and protection of marginalised groups and communities in the devolved system of governance. Since this is a shared institution, it must ensure that its offices and functions are decentralised to all corners of the country to monitor implementation on issues relating to the protection of marginalised groups. In the Sixth Schedule of the Constitution, the Kenya National Commission on Human Rights and the National Commission on Gender and Development are merged and now form the interim Kenya National Human Rights and Equality Commission. In the transition period therefore, the KNHREC should reorganise its operations in such a manner that entitlements of minorities and marginalised groups are secured. The County government should designate one Executive member to deal with issues of marginalised groups and communities. This member will report periodically to the County Assembly Committee in charge of marginalised groups and communities on efforts that the government is making to address the concerns of the marginalised groups and communities. The County should establish an advisory, monitoring or consultative body within appropriate institutional frameworks to serve as a channel for dialogue between the County government and the marginalised. Such a body might also include special purpose committees for addressing such issues as housing, land, education, language, and culture. The composition of such a body should reflect its purpose and contribute to more effective communication and advancement of the marginaliseds interests. 207
The body will thus advise the County government through the designated County Executive. County governments and the KNHREC should undertake an inventory of existing marginalised groups to obtain a clear understanding of their current status and how to help realise their rights. The KNHREC should come up with mechanisms to guide the whole country on the issues of protecting marginalised groups. Further, Article 59 (4) and (5) in the Bill of Rights prescribes that Parliament shall enact legislation that may restructure KNHREC into additional commissions. In effecting this clause, it is imperative that new look Gender Commission, Commission on Minorities and Marginalised Communities, Commission on Persons with Disabilities and that of Youth are established. In the alternative, fully fledged departments of fused additional commissions are specifically established to cater for minorities and marginalised groups. Finally, in the restructuring of the current national Executive to accord with the Constitution, and where line ministries will be downsized to a maximum of 24 from the existing 40, it is imperative that Parliament creates institutions that will secure and nurture the interests of minorities and marginalised groups, including women, youth, children, persons with disabilities and senior citizens. This principle should likewise apply in the establishment and functioning of the County Executive. County Government as a Facilitator of Minority and Marginalised Groups Rights a) Indigenous peoples are entitled 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.10 Protection of marginalized groups from harmful and repugnant cultural beliefs and practices. 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 investing in culture and cultural activities with special consideration for the minorities. The County government is empowered by the CoK 2010 and allocated the resources to manage minority issues under Schedule IV
b)
c)
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of the Constitution. d) e) There must be a deliberate effort to allow the minority and the marginalized to access employment opportunities in the County. Protection of intellectual property of minority and marginalized communities, including sciences, technologies, medicines, and knowledge of flora and fauna as well as arts and performances.
10.3.6 Legislative Proposals

a) The Minorities and Marginalized Communities Act b) It will define minorities and marginalized communities Consolidate the benefits accorded to these groups Provide legal and institutional mechanisms for realizing the benefits outlined in Articles 56 and 204 of the Constitution.
The 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.
10.4 Conclusions
This foregoing unit has put public participation in perspective in reference to such governance issues as transparency, accountability, decision-making and equity. The unit also integrates issues of inclusivity for the marginalized and minority communities in the context of public participation in a democracy, and unveils proposals for legal, policy and institutional interventions. The next unit on communication and civic education summarizes the need for integration of communication and its offshoot, civic education, into all facets of governance institutions. The presentation of civic education covers the fundamental issue of integrated civic education as a key factor in building a symbiotic culture of accountable government and responsive citizens.
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Chapte
11
Public Communication and Civic Education in Devolved Governance

11.1 Communication and Devolved Governance
he centrality of communication to the promotion of good governance and citizens participation is now an acceptable principle internationally. The role of communication is empirically more demonstrated in countries that observe the rule of law. In such countries the principles of participation and respect of the basic rights of citizen participation are regarded as key components of a democratic society. In an environment where good governance is practised, genuine democracy is understood as requiring more than the election of representatives to various assemblies such as parliament, senate or local counties. Thus, over and above party politics, democracy requires that people can make their wishes known in public and require citizen participation in debates about the society they live in and their freedom to make key decisions on various issues that might affect them. It may be argued that the core of a democratic society is the presence of public debate about the distribution, execution and limitation of power; to this extent therefore choices made by the power holders are by way of public policy design scrutinized and contested through public debates. Thus the absence of such provisions in different societies seriously hinders democratic governance. The situation obtaining in Africa raises fundamental legal and policy questions on what needs to be done in the field of communication and information sector so as to address further concerns with regard to giving citizens greater access to formal levels of expression, freedom and control of public information processes. The answer lies in making public communication an integral part of democratic governance. This is critical. People need to have access to the knowledge they require to have the
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COUNTY VISIT SUBMISSIONS ON COMMUNICATION - 2 Accountability: Open forum be established for accountability Quarterly reports Hold open budget days where the local population participates. Safeguards to prevent misuse of funds Have meetings after 4 months go round explaining to the local people whats going on. The public should create oversight institutions outside the ambit of the county government. Create ombudsman office in County Field days for the county staff to meet their people for feed back Have periodic questionnaires for the public to evaluate the performance of the county government. Give copies of budget expenditure to the public for easy monitoring and evaluation Opinion polls to gauge performance of the leaders Continuous liaison between the county, constituencies, locations and sub-locations and also at village level County care centres/Public complaints office Automation of county systems and other services Establish and equip ICT resource centers Public forum be held at beginning and end of year Participatory budget process There should be civic education to sensitive public on the importance of their involvement in public affairs. Maybe start at the micro-level by encouraging participation in school and church committees Communication and Information that all counties establish TV and FM Community radio stations establishment of newspapers or county magazines that will enhance information flow and feedback to the people creation of ICT centers and ICT training centers in all wards creation of county Facebook and twitter accounts as well as county websites use of media for advocacy such as: promotion of social issues such as health and culture feedback between citizens and government to enhance citizen participation creation of development information networks to promote grassroots interaction up to village levels use of focus groups to discuss development issues and complex taboo issues creation of media and cultural centers in the counties to promote the use of local theatre and drama for social integration and peace building and reconciliation to use the local media and community to provide development information to the counties and also to explain development issues at the county level use the media at the counties for posting county events that seek citizen participation use mainstream media and community media for overall promotion of development and awareness creation at the counties
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education to deal with that knowledge and be able to discuss issues in public among themselves for purposes of genuine participation and exerting influence on issues that are of their interest. It is therefore imperative from the start that both the national and the county governments must embrace fully the central roles of communication and information in their broader meanings. The role of public communication and information need to be seen and understood as overarching to all governmental activities and interventions. In other words, public communication and provisions 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 and channels such as the media and their roles in enhancing citizens participation, feedback and the medias role in awareness creation, analysis, interpretation and continuous rationalization of development issues nationally and at the county levels.
11.1.1 Communication, Information, Governance and Development

Communication and information are variables that are constantly needed by people in a democratic society at all levels for purposes of governance and development. In the context of democratic governance for example, the media as a communication tool in a democratic society has an extremely broad institutional framework for exercising the force of public opinion as a way of imposing checks and balances on the government as a democratic requirement. Similarly, citizens need a number of key factors which are both linked to the intrinsic genuine democracy and citizens participation, such as reason, responsibility, mutual respect, access to information, freedom of expression and freedom of conscience to be contextually and correctly mediated by proper and accurate communication mechanism. This is viewed as critical in ensuring that citizens are therefore able to use the accurate, relevant, adequate and appropriate information available to them to make correct and rational decisions at individual, collective and at governmental levels. General communication and provision of information is recognized as critical ingredient to the practice of democracy. For example, Ochilo et al have argued that the media in Kenya has continued to serve the ends of democracy through the facilitation of popular participation of citizens on public affairs and in its continuous struggle in opening up political space and political transition together with other non-state actors within the civil society.
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It is therefore our considered view that the county governments can benefit in using the wider reach effectiveness of both the print and electronic media in sharing extensively on various aspects of their governments. Such exchanges are critical in enhancing peoples confidence and motivation to participate in various demands of governance. This is supported by the existing empirical evidence indicating that peoples participation in governance and decision making process can greatly be improved through institutionalized and professionally structured communication. In this regard, we take the position that all forms of development are intrinsically linked to democratic governance and the existing political elasticity that allows full participation of citizens in their government. In this case the national government and the county governments, respectively. The promotion of various forms of development activities and goals, in one way or another, will require the inclusion and full integration of communication and information. This is the context in which Hedebro has argued that media are critical in the mobilization of human resources, moulding, replacing old norms and at the same time having the capacity to enhance human productivity as well as increasing human labour efficiency. By way of professionally designed methods, communications have the capacity to support various forms of development goals and improvements. Of relevance is the fact that the proposed counties greater population are in the rural areas. Many of them continue to live far apart due to their geographical locations and infrastructural arrangements, which continue to separate them. In this context, 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 others nationally. Similarly, scholars like Shramm, Uche, Lerner and others have argued that the media have the ability to keep development agenda alive, internationally, nationally and at the county levels given that a high degree of correlation does exist between modernization goals and availability of media outlets. This is the context in which the provisions of the CoK 2010 should be viewed. Article 33 (1) to (3) provides for the freedom of expression; Article 34(1) to (4) covers various elements that deal with constitutional issues relating to the freedom of the media; Article 35 (1) to (3) deals with access to information and Article 36 (1) to (3) makes provision for issues relating to freedom of association. 213
Article 33 (1) provides that every person has the right to freedom of expression which includes: freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Notwithstanding the above provisions, Article 33 (2) states that the right to freedom of expression does not extend to the following: propaganda for war; incitement to violence; hate speech or advocacy of hatred that may constitute ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in Article 27 (4). And that in the exercise of the rights to freedom of expression every person shall respect the rights and reputation of others. Matters relating to the centrality of information in the promotion of governance and the principle of citizens participation has also been given further attention in the new CoK 2010 under Article 34 with regards to the key question of freedom of the media. Article 34 (1) states that freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33(2). Article 34 provides that the state shall not: exercise control over or interfere with any person engaged in broadcasting the production or circulation of any publication or the dissemination of information by any medium or penalize any person for any opinion or view or content of any broadcast, publication or dissemination. Besides, broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution and are independent of control by government political interests or commercial interest. Furthermore, state owned medial shall be free to determine independently the editorial contents of their broadcast or other communications, be impartial and afford fair opportunity for the presentation of views and dissenting opinions In addition, part (5) of this Article provides that parliament shall enact legislation that provides for the establishment of a body, which shall be independent of control by government, political interests or commercial interests as well as reflect the interests of all sections of society and set media standards and regulate and monitor compliance with those standards. The CoK 2010 has also made provisions on the core issues relating to the question of access to information. Under Article 35(1) to (3) the key provisions are that every citizen has the right of access to information held by state and information held by another person which may be required for the exercise or protection of any right or fundamental freedom and that every person has the right to correction or deletion
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of misleading information that affects the person. Similarly, it is also expected that the state shall publish and publicize any important information affecting the nation. Using the above broad constitutional provisions as entry points, we then asked the public the following questions: What information and communication methods are required for the public to effectively participate in devolved governance? How should members of the public receive feedback from the county governments? How can ICT be utilized to promote good governance and accountability in counties?
In summary, most 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 various counties. The role of communication is also understood as being critical in the analysis, interpretation, rationalisation and demystification of various development agenda that are key at both national level and within the counties. In this regard therefore, it is our view that all the counties need to embrace the role of communication and information in the promotion of development. This, therefore, is the context in which the public suggested and recommended fully the need for the creation of various information structures, channels and outlets in all the counties.
11.1.2 The Media and the Implications of the New Constitution

The critical discourse in Kenya before the promulgation of the CoK 2010 had been broadly dominated by criticism relating to the lack or absence of constitutional guarantees and legal protection of the press. Specific focus was on freedom of expression, access to information, freedom of the media and the statutory limitations. Some of the key ones include the Defamation Act, Preservation of Public Security Act, the Chiefs Authority Act, the Official Secrets Act, Treason and Sedition as provided under the Penal Code Section 57 (I), the Prohibited Publications as provided for under the Penal Code Section 52 (I) and (2), Films and Stage Play Act, Communications Act and the Kenya Broadcasting Corporation Act. It is therefore important that we note from the start that the Constitution has made significant attempt in making fundamental constitutional provisions with regards to 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 Article 36 (1) to (3) which has made provision for freedom of association.
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Furthermore, it is significant that the Constitution under the Bill of Rights in Chapter 4 Article 20 (1) makes provision that the Bill of Rights applies to all law and binds all state organs and all persons. Significantly, Section (2) provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. Enjoyment of freedom is in this context given by the CoK 2010 as fundamental right to every person. These provisions when taken together with the provisions in Article 33 to Article 36 (1) to (3) provides 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, by virtue of these provisions, undertake as a matter of legal requirement and policies to enact the necessary legislations and amendments of the various existing Acts so far identified to bring them in line with the current constitutional requirements. Besides, given the supremacy of the Constitution, the private media outlets and those owned by various interest groups must make all the necessary legal adjustments as well. Such changes will thus create greater communication flexibility, space and enhanced the 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. Such factors 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. If some of these issues are carefully addressed, then the role of communication and the provisions of information will go a long way in promoting the broad issues relating to the principles of human dignity, freedom, justice, peace and citizens participation in governance at both the national and county levels.
11.1.3 Key Issues and Recommendations

Many scholars, practitioners and users of information, internationally, are now unanimous on the critical roles played by communication, information and the various media channels in the promotion of good governance, democracy and development. These functions may, for example, relate to;
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11.1.3.1 Principle roles of communication in governance and participation in development It is now accepted internationally that the use of proper communication and information serves the democratic requirement by way of providing information for use by citizens in decision making process. Similarly, media outlets provide national forums for ideas generation and democratic debates on various key issues of governance. Media outlets also provide space for citizens greater access to formal levels of expression, freedom and control of public information processes. The media do provide space in which debates are carried out, ideas distributed, choices contested and made, power executed and policies presented and scrutinized through continuous public discourse. These institutions of the media enhance increased levels of access to information and the knowledge that people require in a democracy. Further, they are critical players at the national level in setting agenda on core governance issues. Critically, the media act, on behalf of the silent majority, by keeping governments on check through by comparing what government promise to deliver and the actual levels of government delivery. Other roles of the media include promotion of national values, the Bill of Rights, the Rule of Law and the CoK 2010 by way of analysis and interpretations. They also play a role in interpreting genuine democracy and how citizens can participate through reason/responsibility, mutual respect, access to political power, freedom of expression and freedom of conscience. It is further accepted that communication serves the ends of democracy through the facilitation of popular participation of citizens in public affairs for purposes of opening up political space and transitions with other none state actors. Similarly, communication provides mechanisms for information exchange among citizens and feedback between citizens and governments. Significantly as well, it is used in motivation of citizens to participate in issues of governance and encouraging them to stand up for their rights and for the retention of political elasticity and democratic gains. 11.1.3.2 The principle relating to the Role of Communication and information in the promotion of development In the context of development, communication and information solidifies the interface between democracy and development by arguing for both values and advantages. The media have a flexibility that enable them to promote social development activities, objectives and goals. Other roles of the media in development include mobilizing human resources, moulding, replacing old norms while at the same time enhancing human productivity and ability to increase labour efficiency. The media can as well be
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used as agents for the transmission of news needed to balance the knowledge gap relating to various development issues and concerns. The media has the capacity to demystify development issues by way of creating clarity that enhances changes of replication of the development issues being implemented and the capacity to keep the development agenda alive internationally, nationally and at the county levels. 11.1.3.3 Principles relating to the constitutional provision on Freedom of Expression According to Article 33(1) to (3) on the freedom of expression, fundamentally the CoK 2010 in this section provides that every person has the right to freedom of expression which includes freedom to seek, receive or impart information or ideas. Also included here are freedom of artistic creativity and academic freedom of scientific research. Significantly therefore, the above constitutional provisions give extensive levels of freedom to the individual in seeking information and imparting it as well. It is however, significant that we note the limitations under Article 33(2) where the rights given under Article 33(1) to 3 with regards to the freedom of expression do not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that may constitute ethnic incitement, vilification of others or incitement to cause harm. Article 27(4) provides that in the exercise of the rights to freedom of expression every person shall respect the right of and reputation of others. 11.1.3.4 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, production or circulation of any publication or dissemination of information by any media; or penalize any person for any opinion or view or content of any broadcast, publication or dissemination. One of the imports of the above provisions is that the CoK 2010 now provides guarantees to the freedom of the press to the extent therefore that any attempts to challenge the freedom of the press shall be null and void given the supremacy of the constitution. 11.1.3.5 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 required for the exercise of protection of any right of fundamental freedom. Further, every person has the right to the correction or deletion of untrue or misleading information that affects that person; and that the state shall publish and publicize any important information affecting the nation.
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The following are some of the key recommendations, possible policy options and legal matters relevant to the communication, information and governance. Given the centrality of communication and information to society, we recommend that the media should be made an integral part of democratic governance and play an overarching role in the various aspects of government. We further recommend that there should be in place, public policies and extensive legal provisions addressing media ownership and covering questions of cross media ownership and self regulations. Besides, there is need to develop public policy framework for the counties with regards to the needed guidance on the relevant types of media to be created at the county levels and why. But even importantly, critical attention should be given to the traditional media. Additionally, public and legal policy relating should be developed to cover content as well as creation and development of community media and language of choice for broadcasting. Similarly, a county plan for building information and communication infrastructure should be given a critical attention. There should be in place as well policies that shall eliminate or reduce import tariffs, taxes and other legal barriers to the use of ICTs at county levels. Of equal significance as well is the need to establish an enabling environment to foster the flow of development information and communication at all levels of the counties and the implementation of policies that seek to computerize and promote the use of ICTs in Government services at all county levels. We further recommend the undertaking of information needs analysis to determine requirements and set up information and communication services in key sectors in the various counties as per priorities. Further, that counties make attempts to identify and develop IT application areas with the highest impact on socio-economic development at the county levels as well as taking steps to facilitate the establishment of locally based low cost and widely accessible Internet services and indigenous African information content in the counties. Similarly, there will be need to 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 the counties, grassroots and the marginalized groups such as women, youth, aged, minorities, and children. We further recommend that we use the constitutional provision under 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 operationalizing these provisions to inform the various relevant laws that might have been envisaged by these constitutional provisions by way of a comprehensive legal review of the past Acts and statutes for purposes of amending them to make them comply with the provisions of the Constitution.
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These Acts are: 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 Freedom of Information Bill
It is further recommended that an overarching organic law be put in place 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)
11.1.5 Outstanding Issues

It is internationally recognized now that the role of communication and information is a critical overarching activity in the whole question of governance in a number of respects. For example, communication is key as a tool that serves the ends of democracy. This is done by way of communication, and the media providing adequate, relevant, appropriate and accurate information that enhances citizens depth and understanding of governance issues, while at the same time improving their collective decision making processes on issues of governance. Furthermore, communication is critical as a tool that seeks to enforce public opinion on governance as well as creating a mechanism that improves feedback between the government and citizens. It is therefore imperative that the national government and the county governments pay critical attention to the question of communication and information both at national level and at the county levels. One way of doing this is to ensure that at policy level, public communication is integrated into the whole question of governance. Of significance however is the requirement that all county governments ensure that
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these considerations are given attention both at policy level and by way of legislation. However notwithstanding these critical issues we note that a number of issues were not given due consideration and direction on how they should inform the operationalization and implementation of public communication at the county level. These issues have been flagged as policy options under the sub-section dealing with recommendations. Similar attention should be given to issues that relate to legislation.
11.1.6 Conclusion
The role of communication and information is a critical component of governance and democracy. It is therefore important that both national and county governments as a matter of policy endeavour to integrate their functional roles in the political and development agenda. Furthermore, the role of communication and information remains a critical component of generating information needed for decision making processes, analysis and interpretation of core issues of governance by citizens.
11.2 Civic Education on Devolved Government

The adoption of a new constitution by the people of Kenya at the National Referendum on 4th August and its subsequent promulgation on 27th August 2010 presents a major shift in and experience on governance and power relations in Kenya. One of the core and unique features of the Constitution in this regard is the form of devolution prescribed. In Article 1 (1) the Constitution provides that All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution In subsequent clauses under this Article, the manner, institutions and levels at which the peoples sovereign power may be exercised and/or delegated are set out. This sovereign power is only delegated to the three arms of government both at national and county levels. In clause 4 of Article 1, the Constitution provides that The sovereign power of the people is exercised at (a) the national level; and (b) the County level The delegation principle implies that the people of Kenya collectively retain residual authority and power and do not cede it. In re-vesting sovereign power collectively in the people of Kenya, the Constitution has provided a framework for restoration of their individual self-esteem. This in turn should translate into robust participation by citizens in the affairs of state at various levels; and to foster accountability in 221
governance. In order for citizens to internalise responsibility and participate effectively in the management of their affairs, there is need for awareness creation on the Constitution in general and devolution in particular.
11.2.1 Mandate of the Task Force on Civic Education on Devolution

It is in recognition of the need for creation of awareness on the Constitution and devolution in particular, that relevant and inter-linked mandates were assigned the Task Force on Devolved Government (TFDG) by the appointing authority. This section on civic education on devolution therefore finds expression in the mandate of the Task Force as set out in Gazette Notice No. 12875 of 25th October 2010. The TFDG was to, among other terms of reference make proposals for effective implementation of devolution structures consistent with the AGENDA FOUR (4) provisions of the Constitution. It is The long term issues and solutions. It is also expected to recommend policy what is commonly known to a majority frameworks for implementation of Kenyans as AGENDA FOUR (4). The successful conclusion of the constitution of devolved government as making process is the cornerstone of provided for in the Constitution this item. It is the more overarching of and on a programme for civic the annotated agenda of the KNDR as it education on the proposed legislation incorporates undertaking constitutional, additionally, the views collected legal and institutional reforms, tackling from the people in all the 47 Counties poverty and inequity as well as combating together with written memoranda regional development imbalances and from stakeholders during participatory unemployment particularly among the youth, consolidating national cohesion validation platforms re-enforce the and unity, undertaking land reform and need for civic education on devolution. addressing transparency, accountability The requirement for public participation and impunity. is also expressly provided for in the Constitution. The foregoing is further augmented by the Constitutional provisions under Article 33 (1) to (3) that makes provisions for the freedom of expression; Article 33(1) that provides that every person has the right to freedom of expression which includes freedom to seek, receive or impart information or ideas; and Article 35 (1) to (3) which deals with access to information which emphasizes that every citizen has the right; of access to information held by state 222 to information held by another person and required for the exercise or
protection of any right or fundamental freedom; and to correction or deletion of/or misleading information that affects the person
And most significantly the state shall publish and publicize any important information affecting the nation. The TFDG was therefore under obligation to ensure that the resultant policy and legislative framework to anchor devolution is buttressed with civic education in built in the transitional roadmap to enable the people of Kenya understand, embrace, and support, promote, and protect the gains of devolution.
11.2.2 The context of civic education in Kenya

The TFDG appreciates that civic education has and continue to be carried out in Kenya by various actors, especially Civil Society, faith-based organisations, quasigovernmental agencies and the media. In more recent years civic education content has tended to be multi-sectoral and thematic. There are civil society organisations (CSOs) specializing on specific aspects of rights such as violence against women, property ownership and inheritance, political participation by youth and women, rights of persons with disabilities and rights of minorities and marginalised groups. Other areas are on governance issues like corruption, impunity and accountability. The design, content and methodology applied in delivery of civic education have metamorphosed from one historical epoch to another, always informed by prevailing social, economic, political and cultural imperatives. Consequently, civic education on specific provisions of the new Constitution, specifically devolution, has yet to concretise among providers. In the period leading to the National Referendum on the then Proposed Constitution of Kenya (PCK) on 4th August 2010 and soon after its promulgation, civil society reengineered its interventions in the realm of civic education. The area of focus is now on implementation, with particular attention on ensuring that the process is not held back by captive interests of the political elite, but that it remains faithful to the letter and spirit of the Constitution itself. The above interventions are currently being undertaken by loose umbrella formations and structured platforms, among others, URAIA, NCSC, CRECO, DCIC, CEDMAC, G-10, CMD, Women Leadership Caucus, Women Political Alliance, KHRC, 4Cs, COVAW, SAYARI, ICJ-K, FIDA-K, Pillars of Transformation, UDEK, UDPK, DEEDS-KENYA, KPTJ, SODNET, KENDREN, Kituo Cha Sheria, DEGONSA, SUPKEM, Inter-Religious Council,
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Constituted Indigenous Churches, the Hindu Council, NCCK, CJPC and COTU. Individual CSOs, including CBOs are also engaged in Civic Education in their mandated niche and thematic areas of core competences. Kenyas constitutional dispensation was promulgated following the debilitating postelection violence of 2007 2008, in which slightly over 1,300 Kenyans were killed, an estimated 600,000 rendered internally displaced persons (IDPs) and the economy suffered a body blow estimated at Ksh60 billion. It has now been accepted that the disputed 2007 presidential election, was merely a trigger of the violence. The main causal factors are the long outstanding underlying historical grievances. This realization led to the inclusion of AGENDA 4: The long term issues and solutions in the the Kenya National Dialogue and Reconciliation (KNDR) process or the Serena Peace Talks. The design of any civic education in this context will therefore need to take cognizance of these realities in which Kenya now finds itself. Kenya is therefore essentially in a postconflict phase given the effects of the post-election violence and the affirmation of the subsequent National Accord and establishment of the Grand Coalition Government. At the core of the National Accord is undertaking fundamental reforms beyond having a new constitution in place. Given this perspective, civic education is important as an input towards transformation of institutions of governance and processes of development. The implication of this is that civic education in the circumstances must be designed in a manner that it is systemic and continuous.
To e n s u r e p a r t i c i p a t i o n i n representative government or democracy, civic education (mental education) is part of the political education of a free people, taking them out of the narrow circle of personal and family selfishness, and accustoming them to the comprehension of joint interests, the management of joint concernshabituating them to act from public or semi-public motives, and guide their conduct by aims which unite instead of isolating them from one another
Since Kenya is a country in transition on governance, civic education provides an unparalleled opportunity to educate citizens on the quality of change envisioned in the new Constitution, and the importance of people engagement in all aspects of the governance process, and what the people contribution can make to building democracy through devolution. Indeed, civic education is even more critical in postconstitution making and constitution-implementation phase. This is due to;
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a conflictual referendum where political positions for and against were adopted; a large mass of the population remain ignorant of the new constitutional provisions; lack of experience with a new devolution system ushering in major institutional, structural and political changes; a volatile political situation and 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 continuous readjustment through meeting the requirement and demands of devolution produced by varied intercourse.
11.2.3 Institutional Framework for Civic Education

Upon promulgation of the Constitution of Kenya 2010, the government took a policy decision to fund and facilitate civic education on the Constitution. This decision was made at the Cabinet meeting of 28th October 2010. In this connection the Ministry of Justice, National Cohesion and Constitutional Affairs is coordinating the design and development of civic education on the Constitution. Towards this end, the Kenya National Integrated Civic Education Programme (K-NICE) is in place. A multi-sectoral national committee has been established to steer the Programme. The committee brings together government ministries, departments and agencies (MDAs), civil society, faith based organizations, and the private sector. Additionally, the government has an inter-ministerial committee bringing together key MDAs, while the non-state actors also have their own committee. Civic education on devolution will be part of the national civic education effort, and will be facilitated by the Office of the Deputy Prime Minister and Ministry of Local Government. In this regard, Civic Education on Devolution shall be implemented in each of the 47 Counties through appropriate institutions and delivery agencies.
11.2.4 Strategic Communication in Civic Education

In the design and delivery of civic education on the Constitution and on devolution in particular, effective and strategic communication at all stages and levels is critical. Strategic Communication is the manner of communicating a process, or information/ data that satisfies a long term strategic goal. With it is the ability to facilitate advanced 225
planning so as to communicate over long periods of time and space. Strategic communication, from a technological perspective, is the ability to shorten communication over long distances usually using the interconnectivity of communication technology. From a social perspective, strategic communication is the developing and collation of information, and logistical planning for dissemination of social messages. In modern times, strategic communication of a social nature uses both social and technological networks to coordinate actions and activities. Strategic communication i.e. the design, implementation and monitoring and evaluation will be important considering that delivery of civic education on devolution will have to be process orientated, long-term and not an event. In the context of the transitional road map in implementing devolution, strategic communication refers to policy-making and guidance for consistent information activities by the government which ensures that the public is appraised at all times on the meaning, implications and working of devolved system of government within the meaning of the Constitution and legislative frameworks.
12.2.5 Understanding Civic Education

In a democracy, civic education is necessary to ensure that citizens understand their political system, their rights, the issues they would be expected to participate in and help decide upon, and how and where such decisions would be made. Civic education is political education or, the cultivation of the virtues, knowledge, and skills necessary for political participation. In this context, Tocquevilles assertion that: Town meetings are to liberty what primary schools are to science; they bring it within the peoples reach, they teach men how to use and how to enjoy it is manifest example of the platform upon which civil education is built. Therefore, understanding civic education, especially democratic education, 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). In civic education on devolution, educators will seek to impart skills, knowledge, and participatory virtues; and also seek to engrain in society a felt connection to, if not an identity with, county, society and Kenya.
11.2.6 The purpose of civic education in Kenya

Given the introduction of devolution as a new system of governance, civic education should help prepare citizens for public participation. Civic education on devolution
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should therefore be accessible to all the diversity of Kenyan people. Civic education on devolution will help enhance Kenyans passionate participation in the economic and the political socialization of the devolved system while at the same time fostering social transformation across the board. Indeed, and in common sense parlance, civic education will be critical in enhancing Kenyans participation in the success of the devolved system particularly in post-implementation legislative phase. 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. In sum, ultimate reason for civic education is having an informed citizenry that effectively participates in the management of public affairs at county and national levels. Such involvement has to be on the basis of enhanced knowledge, understanding and ownership of the Constitution. Of particular importance is the need to create a culture in which Kenyans are encouraged to participate in self-actualization and determination.
11.2.7 The Aim and Thematic Areas of civic education on devolution

The main aim of civic education on devolution is to convey knowledge of Kenyas transformed political system and context. Civic education will therefore 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 and the form, structures, procedures and manner of public participation. As has been acknowledged the goal is:
There is also the inspirational notion that through devolution, Kenyans will act through justly administered institutions that will stabilize and perpetuate the good society. The catalyst to this outcome is civic education on devolution.
11.2.8 Application of civic education on devolution

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
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the people about the changes, their rights and responsibilities; and the specifics and mechanics of County governance and relationships with the National government. This will inherently involve providing information on who is responsible for what functions and the management of resources including finances. Also to be incorporated is electoral and/or 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; how to vet political party candidates and nominees; and how to file complaints.
11.2.9 Factors for consideration in civic education on devolution programme

capacity to make information available and accessible to all strategy to achieve universal coverage of the whole country mitigation of high rates of illiteracy mitigation of different languages in a country Strategy for mobilising the empowerment and enlightenment of citizens and government support on the objectives Strategy for continuous and systemic engagement of citizens and government Sustaining values and principles of devolution in the Constitution in delivery by various providers Ensuring the Standardisation of materials Ensuring cultural sensitivity and sensitivity to special needs of persons with disabilities, e.g. availing information in Braille other accessible formats including sign language and interpreters. provision to specially target minority groups, internally displaced persons and other marginalized segments of society e.g. launch special educational campaigns aimed at highlighting the fact that they have the right to be accommodated; and special messages on gender and messages to youth Strategy on public communication for the process
11.2.10 Approaches to Civic Education on Devolution

Given the social context within which civic education on devolution will be provided, it will be essential to map delivery approaches and methodology that accommodates the following; The informal settings
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Educational institutions Live, interactive coverage on national and County TV stations Community radios and FM stations Online blogs information communication technology centres Online interactive questionnaires Websites Traditional communication modes Digital outlets such as short text messages Below the line media Billboards Puppetry Interactive Theatre and comedy Audio-Visuals Caravans, road shows and musical concerts.
11.2.11 Contemplated Activities in Delivery of Civic Education on Devolution

As already indicated above, the government is responsible for funding and facilitating civic education on the Constitution in general. It will therefore facilitate implementation of activities. Considering that the reform agenda was born out of the National Accord, it is crucial that government sponsor civic education, but ensure it remains neutral and accurate, and that it is not seen to favour any party or social interest. Civil education providers should dove-tail into a civic education curriculum designed by government with the valuable contributions of other civic groups. Civil society will be particularly useful and effective in developing sensitive messages that disseminate a positive image of devolution. The other strategic actions in support of civic education include but are not limited to: Systems for mobilisation of financial and human resources, and concomitant disbursement and accountability 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 229
against devolution and encouraging Kenyans full participation. mobilizing the international community to make constructive contributions to civic education, drawing on its substantial experience in promoting democratic participation worldwide
11.2.12 Civic education on devolution Curriculum

In addition to mitigating the factors discussed earlier, it is important to acknowledge and take deliberate measures that shield the process from adversity effects with the hindsight knowledge that because Kenya is emerging from conflict, civic education on devolution curriculum should among other things:
motivate all Kenyans to positively support and promote the ideas of devolution. Offer an explanation of the nature and importance 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 products of these Commissions and how they have contributed to the reform process and communicate their advance of democratic reform in Kenya. The Constitution-making process culminating in the new Constitution focusing on citizen desire for a democratic and equitable society, human rights of all citizens (especially their civil and political rights with regard to governance); and the desire for full participation in the political process. 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.
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11.2.13.1 Government Government through the Office of the Deputy Prime Minister and Ministry of Local Government should:
OUTSTANDING ISSUES ON CIVIC EDUCATION Comparative models for Civic Education Integration of Civic Education on devolution in national Civic Education on the Constitution Legislation on Civic Education required Design of Civic Education Curriculum
Taking into consideration the recommendations of the TFDG, and in consultation with the ministry responsible for Justice, National Cohesion and Constitutional Affairs; design a policy framework for a suitable civic education programme on devolution and corresponding legislation, including suitable mechanisms for standards, implementation, monitoring and evaluation. This should take into account accurate, relevant, politically and gender neutral material development; provision of sufficient financial and human resources to ensure such programmes reach all citizens; special accommodation for women, minorities, displaced persons, youth, and people with disabilities, and others who may be less likely to access mainstream delivery; facilitate the development of a comprehensive national programme and curriculum on civic education on devolution through partnership of other government departments, civil society, development partners and non-state actors; facilitate immediate start of Civic Education on devolution; as part of dissemination of the TFDG Report, Sessional Paper and legislation touching on devolved government, facilitate the provision of civic education on devolution immediately but incrementally; and facilitate capacity building training for leaders and especially the public service on devolution.
11.2.13.2 Civil society The role of civic society in the reform process and civic education on devolution has so far been acknowledged at 1.1.2 and 1.1.3 respectively. In furtherance of these roles, it is recommended that;
Develop spatial civic education devolution messages that highlight the capacities of devolution institutions, and encourage and promote citi231
zens full participation in the devolution implementation process;

Help mobilise public opinion to ensure that the countrys leadership and citizens understand that deviation from set principles and objects of devolution are not acceptable and constitute fraudulent impunity Establish interfacing platforms with national and county governments charged with the responsibility of civic education Ensure that all people have access to civic education on devolution; acting as the link with special groups by designing training programmes for special target groups such as women, minorities, displaced persons, youth and people with disabilities. Act as social audit platform by monitoring and evaluation civic education programmes; and Assist in the mobilisation of financial resources.
11.2.13.3 International development partners

International partners have been instrumental in the reform process in Kenya beginning with achieving the National Accord through the new Constitution and supporting the work implementation agencies including the TFDG. It therefore recommended that international development partners; Support civic education on devolution programmes, through financial and technical resource sourcing; Provide relevant technical lessons learnt and best practices elsewhere for possible inclusion in the proposed model.
11.2.13.4 Legislative Recommendation

Given the prerogatives on citizen participation and public communication enshrined in the Constitution and as stated at 1.2.1, there will be need for the first time t entrench civic education in legislation to ensure it is continuous and sustainable. It is therefore recommended that; Civic education be entrenched in legislation which, among other things provide for a permanent National Civic Education body to coordinate civic education activities in the country. There is therefore need to review the following acts to take into account the proper implementation of civic education: -
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The Freedom of Information Act The Education Act The NGO Act All Acts relating to citizen participation and public communication; and Any other Acts that may be relevant to the principle of civic education be reviewed.
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Chapte
13
Building an Effective and Capable Public service

13.1 Introduction
13.1.1 Public Service
he 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 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 policies on performance management and terms and conditions of service of employees. In the Commonwealth, and a number of other countries, Public Service Commissions or equivalent institutions are constitutionally responsible for staffing of the public service while performance management, formulation and implementation of policies on terms and conditions of service are the responsibility of the relevant ministry or department in the Executive. Whether or not the shared responsibility is carried out at national government or devolved levels of government depends on the constitutional provisions in respective countries. However, the following general principles apply irrespective of levels of government: Recruitment and placement based on the needs of the service 234 Objective, fair and competitive recruitment criteria Performance management and evaluation systems that are results based
Fair and consistent disciplinary processes Fair remuneration, pensions and other terminal benefits.
These principles will form the primary basis for the management and regulation of the county public service. Various provisions in the CoK 2010, especially on Public Service, Public Finance and Devolved Government will have profound implications on the human resource and performance management frameworks that county governments will develop. 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 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.
13.1.2 Human Resource Management Issues in the Public Service

Until the introduction of public service reforms towards the end of the 20th century, the existing human resource management approach was predominantly processbased and focussed more on a centralised environment with limited adaptation to accommodate more dynamic issues in a devolved environment. In addition, historic poor governance within the public service generally contributed to deficiency in service delivery, a culture of compartmentalization and individualism at the expense of teamwork. Performance was for a long time compromised by excessive discretion in government, lack of transparent control systems, excessive bureaucracy and weak capacity. This led to erosion of professionalism in many areas, perceptions of widespread corruption, abuse of office, cronyism and inequities in access to services. Though successive reform efforts significantly reduced the incidence of these challenges, there was need to sustain reforms and build momentum for continuous change in the service. These challenges have assumed more significance in view of the new constitutional 235
provisions especially on values and principles of public service and staffing of county governments. 11.1.2.1 Policy Perspectives Human resource management and development in the public service has broadly been underpinned by various national and sectoral policies. These include the overarching Kenya Vision 2030, the Visions first Medium Term Plan (2008-2012), Ministerial Strategic Plans and initiatives such as Results Based Management and Performance Contracting. In this connection, the various flagship projects on human resource development under Kenya Vision 2030 are aimed at creating a globally competitive and adaptive human resource base to meet the requirements of the Vision. Human resource management is regulated through such statutes as the Service Commissions Act, Cap. 185, Employment Act, 2007, Labour Relations Act, 2007 and the Work Injury and Benefits Act, 2007. Relevant International Labour Organisations Conventions and Declarations have likewise informed the formulation of policies such as those on Tripartism and Social Dialogue in labour relations. The management and development of human resources has been the responsibility of the executive arm of government. The government provides strategic direction in the formulation, interpretation and implementation of human resource policies, programmes and practices designed to enhance service delivery in the public service. 1.1.1.2 Challenges, lessons and interventions The Public Service has over time faced numerous challenges in Human Resource Management and Development. The challenges which are expected to persist in various forms at both levels of government have traditionally revolved around the following complementary and inter-related issues. a. b. c. d. e. f. g. h. Policies, procedures and institutional arrangements Culture change and transformation of the human resource function Recruitment and placement Human resource planning Performance management and evaluation Remuneration Training and capacity building Employee welfare
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The challenges associated with these issues will now have to be addressed within the context of the relevant provisions of the constitution. Moreover, both the national and county governments, though distinct, will often need to apply common policies and practices in addressing issues and challenges in human resource management and development in their respective public services. In this connection, the concept of a single public service will be evident in such areas as a standardised, harmonised grading system and terms and conditions of service including salaries and benefits. This standardisation will be instrumental in facilitating vertical career growth of public officers, intergovernmental skills transfer and harmonious labour relations. A study of public service structures and management in several countries with devolved systems of government gives an indication of the scope of the roles that the different levels of governments play. This is evident not only from BOX 11.1: COUNTY VISIT SUBMISSIONS ON THE COUNTY PUBLIC SERVICE the constitutional and legal basis of the public service in these countries Extensive consultations with members of the but also the policy formulation and public in all the counties elicited varied responses implementation aspects especially on the various thematic areas of county public on terms and conditions of service of service. The twin issues of staffing of county public officers. governments and the fate of employees of local The federal system of government in Germany, with its three levels of government is characterised by lower levels of government that have been granted autonomy in regulating local affairs within the limits of federal and state law. With respect to staffing of local authorities, this autonomy includes organising and staffing these authorities. In this regard, the two levels of government below the federal government (state Lander and local authorities) have the responsibility of recruiting and promoting staff. Recruitment is conditional on existence of a vacancy and is done within a common legal framework of federal civil service legislation.
authorities were of special concern to those who gave comments and suggestions. Specifically, the following recommendations were significant: Appointment of public officers should have a bias towards local residents; Lack or shortage of technical personnel at middle and senior levels in a county should be addressed through secondment of staff from national government or other county governments; Need to harmonise terms and conditions of service of staff especially those who previously worked in local authorities; Need for provision of equal opportunity and fair competition in recruitment of staff in counties; National government should not transfer staff to counties especially those regarded as marginalised areas as a form of disciplinary action.
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This arrangement closely mirrors the framework of uniform norms and standards provided for in Article 235 of Kenyas constitution. On the other hand, the federal government has the power to legislate on matters regarding employment conditions, remuneration and pensions for all civil servants in Germany. In Kenya this function is an implied constitutional responsibility of the national government, but with the input of the Public Service Commission as provided for in Article 234(2)(g) and the Salaries and Remuneration Commission in its advisory role as provided for under Article 230 of the constitution. In the United Kingdom, the lack of a written constitution has not been a constraint in providing for a legal framework that addresses pertinent public service issues. The framework includes such legislation as the Sex Discrimination Act (1975), Equal Pay Acts (1975 and 1986) Race Relations Act (1976) and the Disability Discrimination Act (1996). Besides the relative autonomy of local authorities in the management of their respective public services, there is extensive decentralisation of management policy making and implementation to departments across the civil service. However the Cabinet Office still retains a close oversight and regulatory role especially in ensuring that departmental systems are consistent with overall government principles including those on terms and conditions of service. Like Germany, South Africas public service is characterised by three levels of government with an over-arching constitutional principle of co-operative governance. Notwithstanding the extra level of government in South Africa (Provincial), there are similarities with Kenyas constitution concerning the provisions on values and principles of public service as well as frameworks of national legislation including legislation on administration and management of public service at lower levels of government.
13.2 County Public Service

13.2.1 Staffing of County Governments
The mandates and functions of Ministries and Departments have traditionally been determined by the President. The organisation structures and workloads associated with these mandates are critical in determining staffing of Ministries and Departments as well as the spatial distribution of staff in field offices. Suitable organization structures for the national and county governments will therefore be fundamental in facilitating the effective discharge of the functions assigned to both levels of government by
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the constitution.
The responsibility for staffing of county governments has, under Article 235 of the constitution, been assigned to county governments. Staffing in this context goes beyond the mere deployment of staff in counties, but includes appointment, confirmation in appointment, disciplinary control and removal of persons holding or acting in offices in county public service. The establishment and abolition of offices in the county public service should be guided by the optimum number of staff required to perform the functions assigned to county governments under the fourth schedule of the constitution. In order to determine the optimum number of staff required, respective county governments will need to conduct workload analysis. They will also need to identify functions that could be performed more effectively by the national government and therefore subject to transfer under the provisions of Article 187 of the constitution.
However, during the transitional period before a county government is in place, it is recommended that the government develops a tentative organisational structure and staff establishment for each county, consistent with the distribution of functions for both national and county governments at the county level. Besides providing an initial framework and basis for establishing and abolishing offices when the county government is finally constituted, the tentative organisational structure will be useful in informing the deployment of staff at both levels of government in the county. However, the constitutional responsibility of staffing county governments still remains with the county governments.
13.2.2 Staffing Norms and Standards

The staffing of county governments will be done within a framework of uniform norms and standards prescribed by an Act of Parliament. The relevant Act of Parliament is not among the specific legislation enumerated under the fifth schedule of the Constitution. The framework of uniform norms and standards on staffing of county governments could therefore either be in a legislation that is specific to staffing in county governments or within a separate legislation that addresses relevant issues. Nevertheless, the uniform norms and standards should comply with, among others, Article 10 on National Values and Principles of Governance, Article 41 on Labour Relations, Article 56 on Minorities and marginalised groups, Article 203 on Equitable share and other financial laws, Article 230 on Salaries and Remuneration Commission, Article 236 on Protection of public officers and Article 232 on Public Service Values and Principles. Specifically the norms and standards should provide for the following: 239
Criteria for determining the need to establish or abolish offices Representation of Kenyas diverse communities, gender and persons with disabilities in the public service. Meritocracy and fair competition in appointments. Qualifications of staff in the public service and applicants for appointment. Distribution of functions between national government and county government. Fiscal sustainability of the wage bill. Harmonisation of regulations on discipline with those of the Public Service Commission. Fair labour practices.
Norms and standards in respect of appointments may include benchmarks in the form of ratios, percentages and other relevant parameters.
13.2.3 Promotion of national values and principles of governance and values and principles of public service
13.2.3.1County Public Service Advisory Authority Under Article 232 of the CoK 2010 the values and principles of public service apply to all state organs in both levels of government. In this regard, the powers and functions of the Public Service Commission under Article 234 include the promotion of values and principles in Articles 10 and 232 throughout the public service and to evaluate and report to the President and Parliament on the extent to which the values and principles in these Articles are complied with in the public service. However, under Article 234(3) these powers and functions of the commission do not apply to an office in the service of a county government. Nevertheless, in view of the critical importance of ensuring that the values and principles under Articles 10 and 232 are complied with in the service of county governments, there is need to provide in national legislation for the promotion, evaluation and reporting of the extent of compliance. In this connection, an Authority to be known as the County Public Service Advisory Authority should be established to perform a role similar to that of the Public Service Commission in this respect. Other functions of the Advisory Authority will include offering advice to county governments on staffing of their respective public services; facilitating transfers across
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counties, implementation of national legislation and policies on human resource management and development; promotion of labour relations in county public service and facilitation of consultations between county governments and the Salaries and Remuneration Commission as well as the Public Service Commission. 13.2.3.2County Public Service Board Under the CoK 2010 the powers and functions of the Public Service Commission in respect of county public service are limited to hearing and determining appeals in respect of county governments public service. The Commission will therefore have no role to play in the exercise of the responsibility that is assigned to county governments on staffing in accordance with Article 235. This gives rise to several questions on the process that the county governments will follow in discharging this responsibility and the structures at their disposal for this purpose. There is, for instance, a perception that there may very well be strong temptation by the political leadership in the county government to pander to political interests in appointments of public officers. Partisan interests and excessive discretion by county governments could similarly militate against efforts to build an inclusive, diverse and professional county public service. Past experience concerning appointment of staff in local authorities does not help in dispelling this fear. The same could be said about disciplinary control and removal of public officers from county public service. The responsibility assigned to county governments in staffing county governments should in the circumstances be carried out on behalf of these governments by a quasi-independent County Public Service Board. The Board should comprise members appointed by the county governor with the approval of the county assembly. Members of the Board will be representative of the diverse communities in the county including professionals. The County Public Service Board will primarily carry out on behalf of county governments the responsibilities assigned by the CoK 2010 in Article 235.
13.3 Transitioning from the Current Public Service

13.3.1 Staff Audits in Ministries/Departments, Local Authorities and State Corporations
The determination of optimal staffing levels will be on the basis of functional distribution between levels of government and workload within the various departments both in the national government and county government. An audit of staff serving in Ministries/Departments, Local Authorities and State Corporations will therefore be 241
necessary in providing an initial assessment of the status of staffing in the entire public service. The staff audit will focus on the existing human resource capacities in terms of numbers, cadres, grades, gender, age and qualifications. In this connection, there will be need to disaggregate staff into professional and support categories. The information obtained will facilitate re-distribution and deployment of staff.
13.3.2 Deployment of Staff

Re-organisation and deployment of staff in the transition period should be informed by the following principles: Stability of the public service; Matching staffing with functions; Harmonisation of terms and conditions of service and Preservation and protection of pensions and other terminal benefits
The majority of the staff in the public service is currently deployed in districts, Local Authorities and State Corporations. Most of these fall within the lower and middle level grades and have basically been performing duties related to implementation of government policies. In view of the fact that the responsibility for establishing and making appointments to offices in the service of the county governments is vested with these governments, the absorption of staff serving in counties at the time that county governments are established will ultimately be at the sole discretion of county governments. However, the CoK 2010 has, in clause 31 of the transitional and consequential provisions, provided for continuity of appointment of public officers in existing offices. Since the serving public officers will not be employees of county governments, they will be deemed to be on secondment from national to county governments pending redeployment to either levels of government. During the period of secondment, the seconded public officers will be on the payroll of national government. The Public Service Commission, national government and the Transitional Authority should, in this connection, facilitate redeployment, transfer and secondment of staff between the two levels of government. The Commission should also facilitate the re-designation of staff from local authorities and those who may join the service from state corporations to ensure a harmonious grading system at both levels of governments
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To facilitate continuous skills transfer in the county public service, the legislation envisaged under Article 235 of the CoK 2010 should provide for mobility of staff across counties to redress staff surpluses and deficits. Besides, the legislation should provide for limitation in the recruitment of additional staff until a predetermined optimal staffing level is achieved.
13.3.3 Local Authorities Staff

In terms of appointment and disciplinary control, there are two categories of staff in local authorities; those appointed directly by the Public Service Commission (salary scale 1-9) and those appointed by the local authorities under delegated powers of the Commission (salary scale 10-20). The staffs in both categories are, by virtue of their appointment, public officers. The offices they hold in local authorities are public offices. The staff in local authorities irrespective of salary scales should therefore be part of the serving public officers deemed to be on secondment to county governments at the establishment of these governments. National legislation should provide for their subsequent treatment in the event that they are not absorbed in the county government service.
13.3.4 Public officers not absorbed by national or county governments.

After the national and county governments have determined their staffing needs and existing staff redeployed accordingly, there is a likelihood that there will be surplus staff who will not be absorbed at either level of government. Although clause 31 of the CoK 2010 on existing offices provides for continuity of the appointment of serving public officers, the clause further preserves the power conferred on any person or authority to abolish offices or remove persons from office. On the basis of this provision, national and county governments may opt to rationalise their organisational structures and staff establishments resulting in some serving staff being regarded as excess. The government should anticipate this likelihood and plan for the resultant financial implications arising from redundancies. In this connection, a voluntary retirement scheme could be contemplated for implementation first before other measures are considered. No removal of public officers from the public service should be done without having regard to the provisions of Articles 41 on labour relations, 235 on staffing of county governments and 236 on protection of public officers.
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13.3.5 Harmonisation of Terms and Conditions of Service

The terms and conditions of service within the public service are varied with different pay regimes and other benefits between sectors. This has over time given rise to issues of equity, challenges in horizontal career growth of staff as a result of differences in skills requirements for similar jobs and portability of pensions. This is largely attributable to past practices by the government in determining terms and conditions of service for its employees and a separate process through which terms and conditions of service for employees in Local Authorities and State Corporations are determined through an independent collective bargaining process, albeit within guidelines issued by the government. Terms and conditions of service are of two broad categories; those that are essentially of a remunerative nature including salaries and allowances and those that do not have a direct bearing on immediate payroll costs. These later ones may include medical and pensions schemes, housing, staff welfare, working conditions, code of conduct and occupational health and safety. The continued differentiation in terms and conditions of service within a devolved system of government will be detrimental to effective performance management and harmonious labour relations in the public service. It will therefore be necessary to explore means by which the terms and conditions of service are gradually brought as close as possible to harmony. This should be done in a consultative process within the various tripartite arrangements, ensuring that the terms are not varied to the disadvantage of any group of employees. On this account, it will be necessary to harmonise the pay regimes for staff deployed at both levels of government. In doing so account will be taken of any recommendations made to the national government in respect of conditions of service by the Public Service Commission in exercise of the powers granted to it under Article 234 and the advice of the Salaries and Remuneration Commission. The terms and conditions of service should progressively be harmonised keeping in view any existing collective bargaining agreements and relevant legislation.
13.3.6 Principles of Staff Recruitment and Promotion

As observed, the responsibility of appointing staff in counties as vested with county governments will be carried out within the context of an Act of Parliament having regard to various relevant Articles in the constitution. Besides legislation, there will be need to develop specific policies on appointment of staff in county governments.
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The policies to be developed on a co-operative basis with the national government will include those on terms and conditions of service and human resource planning. Human resource planning will assist county governments in formulating recruitment and succession plans; avoid incurring high and unsustainable wage bills at the expense of operations and economic-growth related expenditure; overstaffing that eventually leads to costly and disruptive downsizing programmes; poor retirement programmes; lack of appropriate skills and low morale among employees. In view of the universal applicability of the values and principles of public service, which include the principles of appointments and promotions, career development at both levels of government should be regulated through a standardised framework to be formulated in consultation with the Public Service Commission.
13.3.7 Reporting Relationships

To facilitate co-operation between levels of government and optimize deployment of staff, there will be need to prepare a reporting system that enhances the co-ordination of all public service staff in the county. This will especially be useful where functions are executed under independent or concurrent jurisdiction and in the event of transfer of such functions from a government at one level to a government at another level. A structured reporting system will further help in removing ambiguity in execution of mandates in terms of distinctiveness and interdependence of governments and in promoting mutual communication, consultation and cooperation. It will also provide for reporting arrangements between public officers performing national government functions in counties and administrative/technical leadership in county governments.
13.3.8
Protection of Accrued Pensions and other Benefits
The transfers, redeployment and secondment of staff in Ministries, Local Authorities and State Corporations will have profound implications on transferability and protection of pensions and other benefits. This is due to the multiplicity of pension schemes in the various sectors of the public service. Unlike the former constitution, the current constitution only provides for protection of pensions, gratuities and other benefits of holders of constitutional offices under the former constitution. There is therefore need to provide in relevant legislation for the protection of accrued pensions and benefits of transferred and seconded staff.
13.3.9
Institutional Facilities and Mechanisms for Training and
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Capacity Building of Staff in the County Public Service

Implementation of performance management strategies in the service has in the past been adversely affected by weaknesses in institutional and staff capacity. These weaknesses have especially been acute in field stations where capacity building has not been given sufficient priority. The transformation of the public service as a result of the constitution will require extensive capacity building including that of the political and executive leadership at both levels of government. Clause 15 of the Transitional and Consequential Provisions of the CoK 2010 provides for assistance by national government to county governments in capacity building. Though capacity building in human resources has improved significantly as a result of public service reforms, attention has not sufficiently been focused on aligning the capacity of staff to the strategic issues that are of critical importance to effective performance. Moreover, there has been numerous cases of disconnect between the political leadership as policy makers at various levels and policy implementers in understanding and appreciating core issues. This eventually leads to paralysis in decision making. In view of the likelihood of transferring these shortcomings to the county public service, there will be need to develop and implement training programmes that target the political and executive leadership at both levels of government. The main aim will be to promote efficient service administration and harmonize interpretation, application and enforcement/ implementation of law; assist staff to uphold and promote the spirit, values and objects of the CoK 2010 when making or implementing public policy decisions; understand rights, limitations, obligations and responsibilities of the client in service delivery.
13.3.10 Role of Government Training Institutions and Professional Associations in Capacity Building
The various Government Training and Management Development Institutes will be especially useful in developing training programmes that focus on the requirements of the transformed public service. These programmes will not only be on the development of transformative leadership and change management but also the development of technical and professional skills necessary in the realisation of the mandates of the public service.
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Curriculum development should in this connection involve training institutions, national and county governments as well as professional associations. The Kenya School of Government should in this connection be identified as critical to continuous capacity building in national and county governments. The current training policy in the public service should continue to apply in the county public service with adaptation aimed at addressing county-specific capacity building requirements.
13.4 Conclusions
Based on the foregoing observations, there is a clear need for the following: 1. 2. Drafting of legislation to provide for staffing of county governments as provided for under Article 235. Auditing of the existing human and technical capacities in the Public Service disaggregated into different cadres to clearly understand the number of employees and the skills available in the civil service, local authorities, state corporations and regional bodies and; facilitate re-distribution and deployment of staff to counties; . Existing terms and conditions of service for both the central and local authorities staff to remain unchanged until the establishment of the salaries and remuneration commission and a framework for harmonising terms and conditions of service is in place. 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. 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. 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.
3.
4.
5.
6.
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7. 8.
Preparing a reporting system that would enhance the co-ordination of all public officers in counties. Developing tentative organizational structures and staff establishments to be used by county governments in deployment of staff and to assist county governments in developing an initial framework for the establishment and abolition of offices. Develop a phased implementation Plan based on the timelines stipulated in the constitution.
9.
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Chapte
14
County Governments Financial Resources and their Management

14.1 Introduction
14.1.1 Underlying philosophy on public finance
he philosophy of governance that the CoK 2010 has adopted informs the architecture and design of public finance management. This philosophy is founded on the principles of solidarity, insurance and the equitable sharing of resources. The adoption of this philosophy was informed by the fact that Kenya was coming from a history of extreme disparities in terms of infrastructure development and incomes due to inequalities in the financial resource endowments and allocation. The Kenyan people had to make a choice between a philosophy of autonomy, which would have continued the inequalities and disparities; and a philosophy of solidarity and redistribution, which would give BOX 12.1: COUNTY VISIT SUBMISSIONS ON PUBLIC FINANCE MANAGEMENT the country an opportunity to equalize and remedy the skewed approach to From the county consultations, majority development. They settled for the later. In this regard the CoK 2010 assigns four different aspects of the financial power of the state to different levels of government and institutions; namely: the power to raise and collect revenue, the power to spend revenue, the power to control revenue, and the power to audit revenue. Both the national and
of the participants were of the view that the principles of public finance management should consider national interest, Population density of a county, Vastness of the county, Poverty index, Fiscal capacity of the county to manage the funds, presence of a county development plans, marginalization and the contribution of the county to national government in terms collection of taxes
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county levels of government have been assigned revenue raising powers, whereby the national level of government has been assigned the power to raise and collect the most buoyant and lucrative taxes that generate the bulk of revenues and the county levels of government assigned revenues that are not sufficiently lucrative to adequately finance the functions assigned to county governments under the constitution. The constitution, however assigns the power to spend the revenues raised by the national government to both levels of government in order to ensure each level of government is allocated sufficient resources to perform the functions assigned under the CoK 2010 in order to promote equitable development of the country. The power for making recommendations on how revenue raised nationally shall be equitably shared between the national and county levels of government is assigned to the Commission on Revenue Allocation, whilst the power to control revenue is given to the Controller of Budget and the power for audit of public finances to the Auditor General. A key plank of this philosophy is based on the realization that most areas that currently may not be generating a lot of revenues have huge untapped potential that can be realized if sufficient resources are allocated for the exploitation of their natural resources. The tax revenues that will accrue from the infrastructure and other investments will enhance the tax revenues raised at both the national and county levels of government. The additional revenues will not only benefit the county concerned but also all the other counties since the national revenue envelope to be equitably shared nationally will have increased.
14.1.2 Fiscal Decentralization Conceptual Framework

The CoK 2010 has devolved substantial political, administrative and financial powers to the County Governments under Article 6(2) of the Constitution, with a view to improve access, efficiency and promote participation and empower citizens to demand accountability and effective service delivery. To achieve these objectives, the envisaged devolution should not only be of functions, but also of power to make necessary policies and operational decisions regarding revenue raising and spending. It also requires appropriate and adequate operating systems and procedures, to provide effective mechanisms for citizen participation. Kenyas fiscal decentralization is however unique since the Constitution establishes governments at the national and county levels of government that the supreme law expressly states are distinct and interdependent and their mutual relations shall be on the basis of consultation and cooperation (Article 6). The Constitution also assigns functions to both levels of government as well as revenue raising and
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expenditure powers. The Constitution has also devolved the power for revenue allocation, county financial management oversight, oversight for revenue expenditure and audit on public finance to different independent commissions and offices and to county assemblies and Parliament. Details on the mechanisms for consultation and cooperation on fiscal, budgets and financial matters between the two levels of government are to be provided in legislation in line with Articles 189, Article 220(2) (c) among other constitutional provisions.
Figure 12.1: Fiscal Decentralisation Conceptual Framework
The rationale for fiscal decentralisation in the Constitution lies in its potential to enhance the ability of county governments to plan, prioritize, and use public resources to deliver public services and infrastructure in response to local needs. A successful fiscal decentralisation system should promote greater access to adequate and relevant services that satisfy local needs and preferences. These preferences should be articulated through a mechanism that promotes popular participation; and leverages local knowledge and resources to enhance cost effectiveness in service delivery and sustainability of local development projects.
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BOX: 12.4: SOME OF THE DECENTRALISED FUNDS CITED IN KENYA Constituency Development Funds (CDF) Local Authorities Transfer Fund (LATF) Free Primary Education Fund Constituency Bursary Fund Road Maintenance Levy Fund (RMLF) Youth Enterprise Development Fund Women Development Fund Poverty Eradication Loan Fund Water Services Trust Fund HIV/AIDS Community Initiative Account Community Development Trust Fund Rural Electrification Programme Levy Fund
Successful fiscal decentralization usually takes the form of assignment of functions and the sources of revenues for each level of government being explicitly specified in the CoK 2010 or by legal statute. The legal framework would also define the level of autonomy for county governments to make their own spending decisions. Traditional discourse on fiscal decentralization, however rarely include areas of financial management which in reality are key to the success of devolution. Figure 12-1 gives a graphical representation of fiscal decentralisation and in particular as it is anticipated by the Constitution.
The meaning of fiscal decentralization in this chapter therefore goes beyond the traditional processes that underpin fiscal management. One innovative element of the framework is a proposal for a legal requirement for public participation in the planning and budgeting process, especially in the formulation and implementation of county budgets. The public participation in the planning and budgeting is provided for in the CoK 2010 and aims to improve accountability in the use of resources and ownership of development planning at the local level.
14.1.3 Principles of Public Finance

Article 201 sets out the principles of public finance management which are to be observed by both the national government and county governments. To have a clear understanding of the recommendations proposed in this chapter for implementing the devolved systems of management of public finance as outlined in the CoK 2010 the underlying public finance principles are outlined here below: a. Openness, accountability and public participation in financial matters by ensuring that relevant, reliable and timely financial information and reports are available for public scrutiny. Promotion of an equitable society by sharing the burden of taxation fairly to promote equitable development in the country and providing special allocations for marginalized groups and areas.
b.
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c. d. e.
Sharing of county revenues in an equitable manner in accordance with the principle of funds must follow and match functions. Ensuring the burdens and benefits of the use of resources and public borrowing are shared equitably between present and future generations. Prudent and responsible use, management and accounting for public finances to safeguard assets and liabilities, and ensure value for money in use of resources. Clear fiscal reporting of public finances to provide assurance that public funds are efficiently, effectively and economically utilized.
f.
14.2 Revenue
14.2.1 Revenue Raised Nationally
Definition of Revenue Raised Nationally The CoK 2010 in Article 202(1) provides that revenue raised nationally shall be shared equitably between the national government and the county governments. The principal issue which this statement portrays is to have a clear understanding of what constitutes revenue raised nationally. Evidently, revenue raised nationally is not just the national tax revenues collected by Kenya Revenue Authority (KRA). According to the definition given in the Audit and Exchequer Act, revenue raised nationally includes penalties, forfeitures, rents and dues and all other receipts of the Government, from whatever source arising, over which Parliament has power of appropriation. Deducing from the South African constitution, the revenue raised nationally seem to include all moneys which are received in the National Revenue Fund. According to the definition given in the South African constitution of National Revenue Fund, it includes all national government receipts unless excluded by an Act of Parliament. Interpreting from these definitions, the argument that national revenue consists of revenues collected by KRA would be limiting as there are many other receipts which are received by the national government outside the tax collected by KRA. Article 206(1) of the CoK 2010 establishes the Consolidated Fund into which shall be paid all moneys raised or received by or on behalf of the national government, except moneys reasonably excluded by an act of parliament and payable to another public fund established for that purpose; and that, through an Act of Parliament is allowed to be retained by a state organ that received it for the purpose of defraying its expenses. It follows that the definition given by the Audit and Exchequer Act would be the correct definition of revenue raised nationally as it is consistent with the revenues 253
required by the CoK 2010 to be deposited in the Consolidated Fund Account. Streams of Revenues Raised Nationally The streams of revenues raised nationally will include revenues raised by Kenya Revenue Authority, money received from national government entities in form of dividends, sale of securities, divesture and so on; sale of bonds and other financial instruments unless excluded as provided for in Article 206; unspecified borrowings which are not excluded as provided for in Article 206; and other receipts including concessional fees, tolls, appropriations in aid, amongst others.
14.2.2 County Own Revenues

Definition Article 207(1) of the Constitution establishes a Revenue Fund for each county, into which shall be paid all money raised or received by or on behalf of the county government, except money reasonably excluded by an Act of parliament. In this case, it is arguable that revenue raised in the county would include all money deposited in the Revenue Fund Account and any other money excluded from the Fund by an Act of Parliament Streams of County Revenues The streams of revenues raised by the county government will include taxes as provided for in Article 209(3) of the Constitution; any other taxes that counties are authorized to impose by an Act of Parliament; fees and charges as provided for in Article 209(4); money received from county public entities in form of dividends, sale of securities, divesture and so on; sale of bonds and other financial instruments; borrowings as may be guaranteed by the national government; grants from donors and other charitable organizations; and other receipts including concessional fees, tolls, appropriations in aid amongst others. 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).
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In levying taxes, County governments should conform to the constitution and also adhere to the key principles of taxation including: a. b. Equity: the burden of taxation should be shared in accordance with the respective taxpayers ability to pay. 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. Effectiveness: the tax base should have the capacity to achieve its basic objectives. Efficiency and Cost: the time and expenses for tax collection and administration should be minimal and cost effective. Flexibility: the tax base should be responsive to economic and other environmental dynamics and is capable of change over time. Enforceability: the rules pertaining to the tax must be easy to enforce within the county. 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. 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.
c. d. e. f. g.
h.
Property taxes are currently regulated by the Rating Act (cap 267) and the Valuation for Rating Act (266). These Acts will need to be harmonised so as to provide adequate systems for the administration of property taxes. Currently, rates taxes are based on unimproved site values, which deny the local authorities substantial amounts of revenue. Also, government ministries, departments and agencies are exempted from paying property taxes and instead, the government pay to the local authorities on an ad hoc basis, what is considered to be contributions in lieu of rates (CILOR). The harmonised legislation should therefore provide for rating of properties to be based on both the improved and unimproved site values. There should be no exemption for payment of rates to the government ministries, departments, agents or any other person as currently is the case. This entails the discontinuation of the CILOR payment system currently in operation due to its ineffectiveness. Article 66(2) of the Constitution obliges parliament, while regulating the use of land, to enact legislation that ensures that investment in property benefit local
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communities and their economies. Currently, investors exploiting minerals and other natural resources are only required to pay royalties to the national governments. In some areas like the Maasai Mara, the local county is paid taxes which are equivalent to royalties by the exploiters of the game park, while in some other counties such benefits are not available to benefit the local communities. Given the current selective application of this tax, and the tax principle of burden equity, it would be appropriate to harmonize this tax throughout the country. On that basis, it is proposed that royalty taxes levied on minerals, be applied to all other natural resources, including game reserves, forestry and marine. The tax will therefore be shared between the national government and the affected county government, in a proportion of 70:30, or any other formula found to be appropriate. The rationale for this share is to benefit the local communities who would be bearing the highest impact of the exploitation of the natural resource. Also, it is a historical fact, that communities from some of these regions where the natural resources are exploited have for many years depended on the exploitation of these resources for their survival. Any exploitation of the natural resource will inevitably impact on the lives of these communities. In addition, the environment will be negatively affected with a direct impact to the communities in the region, which justifies the need to compensate the region. Tax Collection in Counties The constitutional powers and functions on tax revenues administration in counties have five elements: power to impose tax, tax revenue collection, tax revenues control, tax expenditure and related controls, and tax revenues reporting and auditing. Institutional responsibility for tax revenues control, tax expenditure and the reporting and auditing of tax revenues is assigned to the Controller of Budget, the County Governments and the Auditor General, respectively. The power to impose tax is vested in the county government. There is no express constitutional assignment of the responsibility for tax revenue collection. There are four possible options that can be adopted for collection of revenue. First, respective county governments can set up tax collection departments or divisions for the purpose. Second, respective county governments can contract out the task for tax/debt collection to private organizations. Third, a new County Tax Revenue Authority could be established to help in the collection of tax revenues for all the 47 counties. Fourth, the Kenya Revenue Authority could be empowered through national legislation to collect tax revenues for all counties.
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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. Currently, the reliance on the first and second options by local authorities has not led to improvements and cost-effectiveness. The third option of establishing a county specific tax collection institution will come with attendant initial capital expenditure and disadvantages economies of scale, compared to the fourth option. The comparative advantage of National Governments in the collection of taxes through legally empowered national agencies is well established in many country jurisdictions. Local experience has also shown that the involvement of the Kenya Revenue Authority (KRA) in the collection of land rents and the ceding of the power to collect water charges and fees to the Nairobi Water and Sewerage Company Limited has improved the efficiency in the collection of land rates and water charges. It is therefore recommended that the proposed legislation on county governments financial management should vest the power for the collection of county taxes in the Kenya Revenue Authority. The Finance Bill for the 2011/2012 Financial Year can also provide for this framework pending the enactment of the relevant legislation for county governments. The KRA Act could also be amended to make KRA a shared institution that serves the two levels of government. Involvement of KRA in tax collection for all county governments will have the added advantage of enforcing uniform standards and the generation of reliable data on county tax revenues that can be used in the determination of equitable share of national revenue. The use of KRA will result in economies of scale, lower tax administration costs and enhance tax revenues. The constitution requires the two levels of government to cooperate, assist and support each other in the implementation of legislation governing the powers and functions of each level of government, including the exchange of information and the coordination of policies and administration and enhancing capacity in accordance with Articles 6(2), 189(1)(b)(c) and 189(2) of the Constitution. Fees and Charges Counties can impose fees and charges for their services as provided for in Article 209 (4). Currently, the fees and charges imposed by the local authorities include: agricultural cess, livestock fees, house rents, market rents and fees, single business permits fees; traditional brew permits fees, service delivery charges, road maintenance levy, parking fees, rent for conference halls, county parks and related facilities. It is presumed that these fees and charges are the ones referred to in Article 209(4), and
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will form part of the revenue base for the county governments. The tax and charges legislation will require to define in more detail the fees and charges under which the county governments can implement the provisions of Article 209(4). In the legislation other taxes and fees which could be considered would be environmental conservation tax, anti-dumping taxes, charges and fees from publicprivate partnerships such as concessions, management contracts, leases, build-ownoperate-transfer (BOOT) build operate transfer (BOT) and build-own-operate (BOO) schemes; amongst others.
14.3 Inter-Governmental sharing of revenues

14.3.1 Rationale for Intergovernmental Revenue Sharing
The Constitution establishes County governments as distinct entities with both executive and legislative powers. The executive is responsible for specific functions assigned by Article 186 and the Fourth Schedule of the Constitution. BOX 12.5: COUNTY SUBMISSIONS ON In performing the assigned functions DECENTRALISED FUNDS counties will utilise resources from Communities felt that devolved funds have intergovernmental transfers, County transformed lives in the rural areas and revenues (own resources) and recommended that the government should borrowing. continue disbursing them. However, they
suggested the need to establish a central office within the county to coordinate the use of the funds to avoid duplication of projects and uncoordinated activities. They also indicated that devolved funds should not be directly managed by politicians and should only play an oversight role Youth and women funds be brought to the county level to enhance accessibility of the funds since most people at the county level have no information regarding the funds For transparency and accountability in the use of the funds, it should be more participatory The offices of KACC (Ethics and Anti-Corruption commission ) should be devolved to the counties to avoid corruption, mismanagement of funds and abuse of office for ease of reporting, quick investigation and action
The Constitution assigns the revenue raising powers over the most lucrative taxes to the national level of government. However, under the philosophy adopted under the Constitution, the taxes raised under this framework do not belong to the national government but are supposed to be shared equitably between the national and county governments. Thus the Constitution differentiates between the power to raise revenue and the power to spend revenue. As such, the Constitution assigns the spending power over these resources to both levels of
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government. The Constitution envisages that a transparent process will be designed to ensure that revenue raised nationally is equitably shared between the national and county governments in order provide each level of government with sufficient financial resources to perform the functions assigned under Article 186 and Schedule Four of the Constitution. The Constitution further provides that county governments shall have reliable, stable and predictable sources of revenue to enable them effectively perform their constitutional functions as provided in (Articles 175, and 203(1) (d) (j). The sources of such revenues include equitable shares from revenue raised nationally, own revenues raised by respective counties, loans from the money and capital markets and grants from external agencies and local institutions. The Constitution also provides that 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. This principle should therefore be provided under both policy and legislation and implemented to avoid mismatch between functional responsibilities and availability of resources to Counties. Observance of the same would also provide a basis for planning and institutional accountability.
14.3.2 Current Decentralised Funds

Notwithstanding the provisions in the Constitution, Kenya has had a good experience on limited fiscal decentralization. Based on the reports from the county public consultations, the existing decentralised funds have proliferated over the last few years and are now considered major drivers for local development and service delivery. The existing decentralized funds are shown in Box 12.4, and the views of the county public consultations are shown in Box 12.5. The lessons learnt from this basic attempted fiscal decentralization provide a baseline which shows if the intergovernmental sharing of revenue is well managed; the benefits to the economy would be immense. Obviously, due to the perceived success of these decentralized funds, the stakeholders were unanimous that devolved funds should continue to be provided by the national government to counties, but to be managed by the county executive. This gives the second lesson that the communities believe that they would have benefited more if the management of the funds were prudent.
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The question of whether the existing devolved funds should continue or not, need to be evaluated in line with the principle outlined above, that funds must follow and match functions. Therefore, the underlying principle should be to develop a transparent intergovernmental sharing system of revenue which will be able to provide equitable development in the country. This will enhance the confidence which has been portrayed by Kenyans, as a properly designed system of sharing revenue to the grassroots level will definitely have a long lasting impact to the development of the all communities.
14.3.3 Revenue Sharing Roles of various Institutions

14.3.3.1The Senate Article 96 of the constitution provides the role of the Senate which among others include debating and approving bills concerning counties as well as the determination of allocation of revenue raised nationally among the counties including oversight over national revenue allocated to the county governments. Since the Senate has responsibility to debate all bills concerning counties, then it follows that it has full mandate not only to oversee the national revenue allocation to the county governments, but also be able to debate on the division of revenue bill as provided in Article 218 of the Constitution. The role of the Senate, therefore, in relation to intergovernmental sharing of revenue is as follows; a. b. c. Oversight on the process of allocation of revenue raised nationally between the national government and the county governments Determination of a formula for allocation of share of revenue raised nationally among the counties (Article 217) Debate and approval of Division of Revenue Bill and County Allocation of Revenue Bill (Article 218)
Article 217 of the Constitution gives the Senate the power to determine the allocation formula for revenue sharing among the county governments, the share from the revenue raised nationally.
14.3.3.2
The National Assembly
Article 95 of the Constitution provides the role of National Assembly in the allocation of revenue raised nationally as follows: 260
a. b. c. d.
Determine the allocation of national revenue between the levels of government as provided for in part 4 of Chapter Twelve. Appropriate funds for expenditure by the national government and other state organs. Exercise oversight over national revenue and its expenditure. Debate and approval of Division of Revenue Bill and County Allocation of Revenue Bill (Article 218).
14.3.3.3Commission on Revenue Allocation Article 216 of the Constitution provides the roles of CRA in relation to intergovernmental share of revenue. Article 202(1) provides that the revenue raised nationally shall be shared equitably between the national and county governments, and sub-article (2) of the same Article provides that the national government may give conditional or unconditional grants to a county government. In making recommendations for the equitable sharing of revenue raised nationally, the CRA shall also make recommendations on the equitable allocation of conditional and unconditional grants which will also be undertaken through an inter-governmental fiscal relations framework. In doing this, the CRA may draw lessons from the South African experience where the Financial and Fiscal Commission makes recommendations in similar circumstances. Given the roles provided by the Constitution and the argument above, the role of CRA as far as intergovernmental share of revenue are concerned will be as follows; a. Determination of the formula for the sharing of revenue raised nationally between the national government and county governments based on the criteria provided in Article 203(1). Determination of the policy setting out criteria for the identification of marginalised groups for the purpose of allocation the Equalization Fund (Article 204). Making recommendations to the Senate for the determination of the formula for allocation of the share of revenue raised nationally among the county governments. Making recommendations to parliament concerning the basis for the equitable share of revenue raised nationally between the national and county governments. Determination of the policy and formula for giving national governments grants to the county governments. 261
b.
c.
d.
e.
14.3.3.4The County Assembly The Constitution does not give any direct role to the County Assembly as far as intergovernmental share of revenue is concerned. However, the Constitution provides in Article 96(1) that the Senate represents the counties and their governments. Therefore, the County Assembly should be able to play a proactive role in determining the criteria and policies for intergovernmental allocations. 14.3.3.5The Budget Council Article 6 of the Constitution creates two levels of government which are distinct and interdependent, but are expected to conduct their mutual relationship on the basis of consultation and cooperation. Therefore this requires establishment of a framework through which the two levels of government can cooperate and consult.
14.3.4 Division of Revenue between the national and the county governments
The Constitution provides for intergovernmental transfers that include: General Purpose/ Block Transfers as provided in Article 202(1) Equalisation Grant (Article 204) Conditional and unconditional grants (Article 202(2))
Article 203(1) of the Constitution provides the criteria to be used for allocation of revenues between the national government and county governments; and among the county governments. The important principles provided by this criteria are that the national interest must be taken into consideration in the allocation of revenues raised nationally; the determination of financial requirements by the national government must be on objective basis; and the counties must be allocated adequate funds to deliver on the assigned functions, for the purpose of promoting development, reducing economic inequality among counties and uplifting the living conditions of marginalised areas and groups. Article 203(2) provides that revenue raised nationally will be shared equitably and that county governments shall be allocated not less than 15 per cent of the revenue. Therefore, arising from the budget estimates for 2112/2013 fiscal year contained in the Budget Policy Statement, 2011, the vertical allocations to counties and the Equalisation
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Fund have been calculated using ordinary revenues instead of the revenue raised nationally requirement as defined in this chapter. Secondly, the Constitution only provides for minimum vertical allocations to counties. Therefore, the allocations given in the budget estimates should have been made on the basis of funds must follow and match functions principle. This requires that accurate costing of functions be made and formula for allocation be developed to ensure that as functions are transferred to the county governments appropriate allocations are made accordingly. Thirdly, the formula for horizontal revenue allocations among counties will need to be determined. As noted above, the Senate has the mandate to determine this formula after consultation with various stakeholders as provided in Article 217 of the Constitution. Given that the Senate is yet to be constituted, and since the National Assembly has the mandate to undertake its functions, it would be appropriate for the National Assembly to determine the initial formula in consultation with CRA to ensure that county governments get adequate funding when they will be constituted by 2012. The efficacy of CRAs recommendations on the sharing of revenue provided for in Article 216(5) to submit its recommendations to the Senate, the National Assembly, the national executive, the County Assembly and the county executive, is questionable. The process of developing the required formulae for revenue allocation and development of Division of Revenue Bill, and the County Allocation of Revenue Bill need to be elaborated through both policy and legislation. 14.3.4.1Vertical Revenue Sharing The first major step in implementation of an intergovernmental fiscal transfer system is to determine the vertical allocation of resources: what should the size of the transfer pool be? This begs a number of questions chief among them: how do we know what an adequate amount of funding for county governments is? Secondly how can policy makers come up with a funding rule that would ensure the stability and predictability of the transfers? Taxonomy of intergovernmental transfers developed by Roy Bahl and Johannes Linn (1992) concludes that there are three common approaches to determining the size of the total grant pool (i.e., the vertical dimension). The total amount of resources to be allocated may be determined (i) as a share of central government revenue, (ii) on an ad-hoc basis, or (iii) it may be determined on a basis of cost reimbursement. Most countries use one or more of these three methods. As already noted, Article 203(2) provides that transfers to county governments will be not less than 15% of the revenue raised nationally. As discussed above, CRA need
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to hasten development of the formula for vertical allocation to be used for vertical revenue sharing. It is also acknowledged that the allocations are subject to appropriate costing of the assigned functions before the formula to be developed by CRA can be applied. This will identify human, financial and infrastructural resources required by counties to perform their assigned functions. The costing of these requirements will provide the basis for estimating the expenditure needs of counties, and ultimately the total national revenues to be shared vertically. County governments may be given additional allocations from the national governments share of revenue, either conditionally or unconditionally (Article 202) to fund specific projects and programs. On the other hand, unconditional grants are moneys allocated by the national government to the county government without reservations or conditions imposed regarding the use and there are no set limits on the subsequent actions. As argued in this chapter, allocation of such grants shall be determined through the formula and policy developed by CRA.
BOX 12.3: COUNTY VISIT SUBMISSIONS ON CONDITIONAL AND UNCONDITIONAL FUNDS From the county consultations, participants views were that the sharing of conditional and unconditional fund should be through public participation and that projects funded by such funds should be targeted and prioritized. Other views expressed for consideration were: Development of regulations on use and management of such fund, Resources endowment of the county Have a strategic plan and a long term development plan An affirmative action for the marginalized groups and regions Such finds may be used to cater for calamities and disasters
Policy and legislation governing the equitable sharing of revenues raised nationally and the allocation of grants by the national government should provide for safeguards to ensure objectivity, equity, transparency and accountability. Application of the principles for equitable share of revenues raised nationally should however take cognizance of the need to provide incentives for counties that contribute significant proportions of the Nations wealth and GDP. This is informed by the wisdom encapsulated in the idiom of not killing the goose that lays the golden eggs granted considerable amounts of the national tax revenues would be generated and collected from institutions and persons residing in such counties. Some of the aspects that should guide the allocation of such funds include the poverty level of the county, the need to restore infrastructure destroyed during calamities and disasters and the need to catalyse development socio-economic initiatives in a county; among others. Good financial management practices such as requirements for detailed proposals with clear
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objectives and goals for the use of funds, prioritization of projects to be funded within the budgets and strategic plans of counties should be part of the framework for evaluating requests for such funds. The need to finance strategic county and intercounty projects and programmes with demonstrable huge regional and nationwide positive socio-economic impacts would be important consideration. Appropriate controls and safeguards should also be put in place to prevent the misuse and inappropriate application of moneys appropriated and given as conditional and unconditional grants. Some of the controls in question include public participation, monitoring and evaluation. The Constitution (Article 204) establishes the Equalisation Fund into which 0.5% of revenue collected by the national government is paid every year initially for a twenty year period. Monies in the Fund will be used to uplift the quality of basic services such as water, roads, electricity and health in marginalised areas to levels enjoyed by the rest of the country.
BOX: 12.2: COUNTY VISIT SUBMISSIONS ON CRITERIA FOR EQUALISATION FUND poverty index population density size of the county levels of development level of service delivery human development indicators historical injustices
Article 216(4) provides that CRA shall on a regular basis determine, publish and review policy for setting the criteria for identifying marginalised areas. Some of the indicators to be used which also conforms with suggestions given during the county public consultations (box 12.2), are percentage of population with access to clean water; percentages of bitumen or earth roads; households with access to electricity; and, health indicators such as immunisation coverage, infant mortality, maternal mortality or distance to the nearest health centre. Geographic Information System (GIS) data on these indicators could be plotted on the map of Kenya to determine the marginalised areas. It is to be noted that the allocations to the Fund is going to be miniscule when compared to the expected expenditure needs. This will call for prioritization of expenditures and a formula for allocation of funds that will be agreeable to the determined areas. Ideally, because of the limited resources expected from the Equalisation Fund the national government and county governments should work together in identifying priorities to benefit from the Fund. Alternatively, the national government could provide conditional grants to county governments, but allow them to identify priorities as long as they are within agreed sectors. Either way the formula for allotting revenues must place greater weight inputs that guarantee the most desirable outcomes. Where
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resources from the Fund are used to finance infrastructure development in counties, ownership of the project should be agreed on the outset, to avoid poor maintenance in the future. This problem could be addressed by allowing the county governments to be involved in the identification and implementation of the projects. The projects should also be handed over to the counties immediately after completion. The Contingency Fund required to be established by the national government under Article 208 is to cater for urgent and unforeseen needs for which there is no other authority or provision. Article 203(1) (k) provides for one of the criteria for allocation of revenue raised nationally to county government as the need to respond to emergencies. Schedule Four of the Constitution provides disaster management as a concurrent function. Essentially, this means that Contingency Fund is not required to be shared in the normal intergovernmental share of revenue, but it should be able to take consideration of certain disasters that may occur in the counties and are beyond the threshold of the county government Since both the national and county governments are required to provide for possible disaster, there is therefore need to develop policy to determine the threshold of disaster response up to which county governments can respond. Appropriate legislative mechanism should be enacted to provide the operationalization and usage of the Contingency Fund account and the County Emergency Fund Account 14.3.4.2County Allocation of Revenue Raised Nationally After agreement is reached on the total amount of resources to be allocated to counties, the next and probably more difficult task is to agree on the formula for equitable allocation of these resources to each of the 47 counties. The principle that should underpin this process is that each county should be allocated resources that would match its expenditure needs. This will ideally be the difference between the expenditure needs and the resources they can raise on their own by way of taxes, fees and other charges. As already noted Article 216(5), the Revenue Allocation Commission will recommend the formula for horizontal revenue sharing which should be objective and quantitative. The use of a formula creates a sense of fairness in that all stakeholders know the exact criteria used for distribution of resources, and it is flexible enough to respond to the changes in the variables used. The formula-based mechanisms should ensure that the horizontal allocation of resources among counties is consistent with the countrys policy objectives on devolution as outlined below:
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Provide revenue adequacy: A transfer formula should provide a source of adequate resources to the county governments to perform their mandated functions. Enhancing equity and fairness: The transfer formula should support a fair allocation of resources. Stability: Transfers should be provided in a predictable manner. Simplicity and transparency: Transfer formulas should be simple and transparent. Incentive compatibility: should not create negative incentives for local revenue mobilization, and should not induce inefficient expenditure choices. Focus on service delivery: Transfer formulas should focus on the demand (clients or outputs) rather than the supply (inputs and infrastructure). Avoid equal shares: Reliance on the equal shares principle as a major allocation factor should be avoided in the design of an allocation formula. 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.
BOX 12.6: COUNTY VISITS SUBMISSIONS ON BORROWING AND GRANTS A project must be economically viable, sustainable, and capacity to repay must be considered as well as the absorption capacity of the county The public should participate in identifying projects to be funded by such funds National government must set terms and conditions on loans and grants There should be consultation between the county and national government before seeking for grants and loans Countys capability in financial management, implementation of previously loaned projects, and level of funding requirements should be considered
In determining the appropriate allocation factors to be used in the formula, the CRA should consider the following: Accuracy: The variable should accurately reflect the specific characteristics and should be statistically sound. Regularly updated: The variable should be regularly updated. Independent source: The variable should come from an independent source respected by all stakeholders.
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Free of local manipulation: The variable should be drawn from a source that cannot be manipulated. Reflect needs or demands: The variable should reflect needs or demands for public goods.
The stakeholders engaged during the county consultations were of the view that the transfers should be used to promote balanced development. The specific views emphasise the equity role of horizontal revenue sharing. They proposed that the allocation criteria should consider factors such as population, poverty, level of development, number of districts or constituencies, historical marginalisation and injustices, capacity to manage resources and special needs of counties. In addition, there were proposals that allocations should take into account the potential of local economy, contribution to national tax base and natural endowments. A review of criteria used to develop the horizontal sharing of resources in other countries like South Africa were found to be very similar to those proposed by the public during the county public consultations. In South Africa, the weighting of variables has been changing as the countys development pattern changes. This experience could be applied in the Kenyan situation in designing the formulae for revenue allocation.
14.3.4.3
Financing of Urban Areas and Cities
Article 184 of the Constitution requires a law to provide for the governance and management of urban areas and cities be legislated. The institutionalization of urban areas and cities as indicated in chapter 4 of this report is that they will be governed under the county governments and perform functions as delegated by the county. Article 176 of the Constitution provides for decentralization of functions by the county governments to respect the principle of subsidiarity. According to the principle of funds must follow and match functions, the county government will require to allocate adequate funds to the urban areas and cities for them to perform the functions assigned to them effectively. The Constitution has assigned the sources of revenues provided for in Article 209 to the two levels of government. The traditional sources of revenues normally collected by the existing local authorities have been assigned to the county governments. Given the importance of urban areas and cities to the countrys social and economic advancement, they will undoubtedly absorb the majority of national population in the counties and will be focal points for industrialization and technological innovation. According to experiences from the developed economies, the urban areas and cities
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have the potential of building diversified economies which would raise productivity, create jobs and wealth and serve as engines for social-political change, economic growth and development. Therefore it is important to ensure that urban areas and cities are allocated sufficient resources to enable them deliver services and develop infrastructure through intergovernmental framework for sharing revenue raised nationally including access to grants and loans. Article 207 of the Constitution provides that all revenue collected by the county governments will be deposited in the County Revenue Fund Account except those funds exempted through an Act of Parliament. For efficient collection and financing of urban areas and cities, it would be appropriate for certain collectable revenues within their jurisdictions to be collected directly. On that basis the financing of urban areas and cities is recommended as follows:
a.
equitable share of the county share of revenue raised nationally;
b. conditional grants allocated from the countys share of such grants; c. property and entertainment taxes raised from within the jurisdiction of the respective urban area or city;
d. fees and charges collected from within the jurisdiction of the respective urban area or city; e. f. donor grants; and funds raised through borrowing Financing of County Public Entities
14.3.4.4
A county government may establish a county public entity or entities. This can be done individually, jointly with other counties, jointly with the national government or jointly with the private sector. In accordance with the principle of subsidiarity, certain functions may require to be delegated/assigned to the public entity, and based on the principle of funds match and follow functions, it would be expected that the county governments would allocate adequate resources for the entity to perform the functions. Funding of county public entities should however not be done similarly to how a county government would allocate resources to an urban area or city. The normal method of funding should follow the subsidy financing system, where based on the functions the
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public entity is required to perform a justified subsidy would be calculated taking into consideration the public and social goods which would otherwise not be chargeable to the community benefiting from the use of the public good.
14.4
14.4.1
Loans, Grants and Donations

Institutional Framework for Coordination of Borrowing and Grants
Articles 201, 211, 212 and 213 of the Constitution envisage co-ordinated and controlled borrowing by both levels of government. 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 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 the national government including other state organs. In Australia, for example, the need to coordinate public debt and to stem loss of creditworthiness arising from external borrowing necessitated the establishment of legal framework through the Intergovernmental Loans Council to coordinate public borrowing with power to make decisions binding on both levels of government. The functions of the proposed Loans and Grants Council for Kenya may include:
a.
regulation of internal and external borrowing by the National Government, county governments and other public entities;
b. policy review and monitoring of the debt management by the national government, county governments and other public entities; c. regulation of the procedures for the seeking, receipt and utilization of donor grants by the national government, county governments and other public entities;
d. setting ceilings on the county governments powers to borrow; e. administration of a sinking fund established to help counties to redeem debt to improve their liquidity and creditworthiness;
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f.
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 and Grants Council for Kenya could include:
a. the Cabinet Secretary responsible for finance, who shall be the Chairperson. b. c. the Cabinet Secretary responsible for devolved government. the Attorney General.
d. six representatives each nominated by a cluster of counties constituted in accordance with section 4 (2) and who shall be county executive committee members responsible for finance in their respective county.
e.
Secretary responsible for Foreign Affairs;
A Secretariat for the Loans and Grants Council headed by a person at the level of Principal Secretary who is answerable to the Secretary responsible for Finance should be established to deal with the management and administration of issues pertaining to loans, guarantees, public debt management and grants. The Council can be granted the power to make its own rules of operation, subject to the public participation governance principle.
14.4.2
Borrowing
County Governments may borrow only with the approval of their respective county assemblies and subject to the national government guaranteeing the loan (Article 212). The county governments should have the option of borrowing from both the money and capital markets both externally and internally. Article 213 specifies that legislation prescribing the terms and conditions under which the national government may guarantee loans should be enacted. Borrowing should be governed by the need for prudence and should ensure that borrowed money is used in a responsible manner. The overall institutional structure for the loans and grants systems is shown in Figure 12.2.
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Figure 12.2: Institutional Framework for Coordination of Borrowing and Donor Grants
14.4.2.1
Internal and External Borrowing
The terms and conditions for consideration of loan guarantees by the National Government may include 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. The subject capital project must be economically viable with clear cost benefit analysis.
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e. f.
Financial management and probity of the county. Application, management and servicing of previous guaranteed loans.
g. Proportion of the total loan portfolio of the county relative to both its annual budget and GDP. h. Adequate project appraisal details which guarantees timely completion. i. j. k. l. Project/investment potential for local and national economic growth and development. Credit rating of the county. Compliance with the requirements for borrowing from the lender. Fiscal state of the county.
In addition details on loan size, grace period, repayment term, interest rate, commitment fees, administration charges, loan signatories, disbursements, default penalties and other related pertinent aspects should be specified as substantive clauses in the relevant loan documents and covenants. Further to the 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 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. f. Limitations on the amounts that county governments can borrow from external sources. Conditions for national government bailouts to county governments.
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g. The county government has indemnified the national government on the costs that may be incurred for the takeover and servicing of nonperforming loans in the event of default. 14.4.2.2 Loan Guarantees
Consideration of loans by the National Government should be efficient, transparent and accountable. Assessment and approval of loan guarantees for Counties must also be based on the national values and principles of public service, leadership and integrity that are clearly anchored in the service charters of the relevant and responsible National Government departments. The roles of national departments and officials responsible for loan guarantees must be clearly set out in regulations that specify the requirements and procedure for the consideration and approval of loans. The regulations in question should be developed as an integral component of the anticipated legislation. Loan guarantee applications must, for example, be acknowledged in writing within a specified reasonable time. The acknowledging letter must also confirm the receipt of all the required documents that need to be submitted and the time within which a decision on the loan guarantee will be communicated. Sanctions for unreasonable delay or refusal to grant approvals as well as appeals and review mechanisms for related decisions need also to be specified in the envisaged policy and legislation. Regulations outlining the procedure for the consideration and approval of loans should be developed as an integral component of the anticipated legislation.
14.4.3
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.
Donor aid should be captured and appropriated as revenue or appropriations-in-aid in the annual budgets of County Governments. Programmes to be funded by such aid should be developed by the County Executive and incorporated in county budgets for consideration and approval by the County Assemblies. The application and use of 274
donor aid must also be governed by the principles of transparency, accountability, public participation, equitable development of the county, including making special provision for marginalized groups. Regulations on seeking, receipt, budgeting, use and accounting for such funds should be included as an integral part of the county governments financial management legislation. The national interest, national development priorities, fiscal and monetary policies shall also be taken into account. Kenya may make a deliberate effort to establish the Loans Council whose functions could be expanded to include dealing with matters relating to donor aid and grants to counties. The inclusiveness and representative nature of the Council will ensure the letter and spirit of the constitution with regard to observance of the requirement that the two levels of government are distinct, interdependent and are required to operate on the basis of mutual cooperation and consultation. Figure 12.2 above provides for such council.
14.4.4 Public Debt Management in Counties

Public debt management is the process of establishing and implementing a strategy and plan for managing a county governments debt in order to raise the required amount of funding and the achievement of desired risk, cost objectives and goals. It is therefore important that a public debt management system is developed as it is anticipated that 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 governments balance sheets as well the countrys 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. From a broader macroeconomic context for public policy, governments should seek to ensure that both the level and rate of growth in their public debt is fundamentally sustainable, and can be serviced under a wide range of circumstances while meeting the cost and risk objectives. The public debt management policy of county governments can be used as a mechanism for meeting other sovereign debt management goals that the national government may have set, such as developing and maintaining an efficient market for government securities; and to reduce both the countys and countrys vulnerability to national/international financial shocks. Examples of indicators that address the issue of debt sustainability include the public sector debt service ratio, ratios of public debt to GDP and to tax revenue. County-level public debt managers should ensure that national government fiscal authorities are aware of the impact of 275
the county government financing requirements and debt levels on borrowing costs.
14.4.4.1
Objectives of Public Debt Management
The objectives of public debt management in counties include:
a.
To ensure that the county governments financing needs and its payment obligations are met at the lowest possible cost over the medium to long run, consistent with a prudent degree of risk.
b. Support the public finance strategy by assuring that the execution of the public debt policy in the medium and long term will take place in an environment of public debt sustainability. c. Foster a healthy development of the county financial system and improve the efficiency of the local debt market.
d. Promote transparency and the modernization of the statistical information related to public debt. 14.4.4.2 Principles and Techniques for Public Debt Management
Principles and techniques for public debt management that county governments should embrace include:
a.
Transparency and accountability: financial openness and assurances of integrity by agencies responsible for debt management.
b. Legal institutional framework: the public debt management governance should clarify the authority to borrow and to issue new debt, invest, and undertake transactions on the county governments behalf. c. Debt management strategy: the risks inherent in the county governments debt structure should be carefully monitored and evaluated. These risks should be mitigated to the extent feasible by modifying the debt structure, taking into account the cost of doing so.
d. Risk management framework: a framework should be developed to enable debt managers to identify and manage the trade-offs between expected cost and risk in the county governments debt portfolio.
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e.
Development and Maintenance of an Efficient Market for Government Securities: in order to minimize cost and risk of public debt over the medium to long run, debt managers should ensure that their policies and operations are consistent with the development of an efficient government securities market. Framework for County Public Debt Management
14.4.4.3
A clear legal and institutional framework is necessary in each county for managing issues relating to county public sector borrowing and debt management. Legislation on sovereign borrowing sets out the authority to borrow and delegate power from the body within the county which has the financial authority to the body that does the borrowing on behalf of the county. The salient features for the institutional framework for the county public debt management would include:
a.
Functional organizational structure: the functional organization for public debt management should correspond to the spheres of debt management aspects that are identified.
b. Coordination with fiscal and monetary policies: there should be effective coordination of county debt management with national fiscal and monetary policies. c. Regulations and procedures: It is essential to formulate regulations and procedures which set out the explicit roles of the departments of state responsible for finance, county governments, foreign affairs, the central bank, capital markets authority, other agencies involved in loan operations and management at all stages of the loan cycle.
d. Issues of guarantees: in the case of a payment guarantee, the guarantor takes on an obligation to pay some of the entire principal amount of the debt and accrued interest if the borrower defaults. So the development and adoption of guidelines for the administration and management of guarantees at both the national and county levels is an important aspect of county public debt management. e. On-lending arrangements: Often other public sector borrowers seek the assistance of the government when direct borrowing is difficult or not possible.
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14.5
14.5.1
Financial Management and Controls

Institutional Framework
Role of the Accounting Officer
14.5.1.1
Article 226 of the Constitution provides for the designation of accounting officers for national government, county governments and all other public entities who are responsible for the proper maintenance of the public financial records. Sub article (2), provides that the accounting officer of a national public entity is accountable to the National Assembly for its financial management, and that the accounting officer of a county public entity is accountable to the county assembly for its financial management. To appreciate the role of an accounting officer, in relation to financial management of a public entity, it is important to understand the functions of the office from other countries. In the Republic of Ireland, the Comptroller & Auditor General (Amendment) Act, 1993, the Accounting Officer is defined as the Officer referred to in Section 22 of the Exchequer and Audit Departments Act, 1866 to whom the duty of preparing the Appropriation Accounts of a Department is assigned. The Act provides the principle role of an Accounting Officer as to safeguard public funds and ensure propriety of expenditure of the funds. In addition, the officer should ensure that all relevant financial considerations are taken into account where they concern the preparation and implementation of policy proposals relating to expenditure or income. The officer should also ensure economy and efficiency in the use of resources and design systems, practices and procedures used to evaluate effectiveness. The Municipal Finance Management Act, of South Africa, 2003 provides for the Fiduciary duties of an accounting officer as follows:
Exercise utmost care to ensure reasonable protection of the assets and records of the entity. Act with fidelity, honesty, integrity and in the best interest in the management of the affairs of the entity. Disclose all material facts including those reasonable discoverable which in any way may influence the decisions or actions of the parent municipality.
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Seek to prevent any prejudicial interest of the parent Municipality.
Borrowing from other countries, the role and responsibility of an accounting officer of any public entity, is to secure and control all public revenues and expenditures. It is therefore not a surprise that Article 226(5) prohibits a public officer, including those holding a political office, to direct or approve the use of public funds contrary to the law or instructions, which in other words means, without authority of the responsible accounting officer. The Kenya Exchequer and audit Act (Cap 412) provides that accounting officers are persons responsible and accountable for any service in respect of which monies have been appropriated by Parliament.
14.5.1.2
Role of the Controller of Budget
Article 228 of the Constitution provides for the creation of the office of the Controller of Budget. The functions of the office as provided in the Constitution are, (1) to approve any withdrawal from the public funds of the national and county governments as authorized by law; (2) to oversee the implementation of the budget by the national and county governments. In undertaking these functions, the Controller of Budget, is required to submit to each house of parliament a report on the implementation of the budget of both the national and county governments. Interestingly, the Controller of Budget is not required to report to the county assemblies, despite they being key institutions in approval and oversight of county governments budgets and their implementation, including expenditure control. Given that the Controller of Budget will require submitting quarterly reports to parliament on the implementation of budgets, then it means that he/she will have an oversight role on expenditure controls by both levels of governments. It is therefore important that the legislation developed to operationalize Article 228 provide for a reporting relationship by the Controller of Budget to the respective county assemblies.
14.5.1.3
The role of the County Assembly
Article 185 of the Constitution provides that the legislative authority of a county government is vested in, and exercised by, its county assembly. Sub-article (2) provides that a county assembly may make any laws that are necessary for or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. In Sub article (3) the county assembly is specifically given oversight role over the executive and any other county executive
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organs, while respecting the principle of the separation of powers. County assemblies have direct financial management role as provided in Article 224 of the Constitution, as they are required to approve the budget and annual appropriation bills of the count governments in accordance with the provisions of the relevant Act of Parliament. Additionally, Article 226(2) requires all the accounting officers of the county public entities to report to their relevant county assemblies on all matters related to public finances. The Constitution therefore, gives the county assemblies the oversight role on all matters of the county including financial management. It is therefore important that this oversight role is understood and articulately interpreted to ensure harmony and avoid conflict between the executive and political leaders. In many countries, the oversight approach by elected leaders has proven to be an effective technique in holding the executive to account. The concept of oversight contains many aspects which include political, administrative, financial, ethical, legal and strategic elements. In the United States of America (USA), congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance. The functions of oversight as exercised in the USA include:
a.
To detect and prevent abuse, arbitrary behaviour or illegal and unconstitutional conduct on the part of the government and public agencies. At the core of this function is the protection of the rights and liberties of citizens.
b. To hold the government to account in respect of how the taxpayers money is used. It detects waste within the machinery of government and public agencies. Thus it can improve the efficiency, economy and effectiveness of government operations. c. To ensure that policies announced by government and authorised by Parliament are actually delivered. This function includes monitoring the achievement of goals set by legislation and the governments own programmes.
d. To improve the transparency of government operations and enhance public trust in the government, which is itself a condition of effective
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policy delivery.
A review of the USA Congresss oversight function shows that this role could be attributed to more than one committee as noted below:
Committee inquiries and hearings. Formal consultations with and reports from the president. Informal meetings between legislators and executive officials. Congressional committees and support agencies such as the Congressional Budget Office, the General Accounting Office, and the Office of Technology Assessment.
Therefore, in designing this role for a county assembly, it is important to consider the functions and organs of oversight to ensure that it encompass the political, administrative, financial, ethical, legal and strategic elements. The possible oversight functions of the county assembly may 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. The Budget Council
14.5.1.4
It is recommended that legislation establishes an inter-governmental budget council to provide a forum for cooperation, consultation and negotiation between national and county governments on matters relating to fiscal, budgetary and financial matters. This includes the equitable sharing and allocation of revenue raised nationally as well as allocation of conditional and unconditional grants. The legislation should set out the functions of the council as follows:
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i. ii.
determination of the vertical sharing of revenue to inform the Division of Revenue Bill; the initiation of proposals for the horizontal sharing of revenue among counties in accordance with Article 218(1) (b) of the Constitution, as a basis for the preparation of the County Allocation of Revenue Bill by the Senate; the determination of the allocation of conditional and unconditional grants to the counties out of the national government share of revenue; the determination of any conditions to be attached to grants to county governments; the determination of the allocation and appropriation of the equalization fund; the collection and collation of information provided by both levels of government to form the basis for the development of its analytical data base; to consider matters which relate to the division of revenue as may from time to time be referred to the Council by a level of government, a state organ, an organization of citizens or a citizen
iii.
iv. v. vi.
vii.
14.5.2 Planning and Budgeting

14.5.2.1 Integrated Development Planning and Budgeting Linkages
Article 185 (4) of the Constitution provides for the county assembly to approve plans and policies for the management and exploitation of the countys resources; and the development and management of its infrastructure and institutions. In addition, function 2(8) in the Fourth schedule of the Constitution, requires every county government to be responsible for its planning and development. Therefore, for this responsibility to be undertaken effectively, the county governments must anchor their development plans to the national integrated development plans. Graphically, the integrated national development planning cycle linkage between the national and county governments would be illustrated in Figure 12.3. 282
Figure 12.3:
Planning & Budgeting Framework
BOX 12.7: COUNTY VISIT SUBMISSIONS ON PLANNING, EXPENDITURE AND REVENUE LINKAGES During the county consultations the communities raised various issues which were relevant to planning, expenditure and revenue linkages, they would want to see implemented at the county level. The major recommendations by the Kenyan public they would want to see to ensure sound budgeting, financial management and planning included the following: The county governments should consistently develop their medium and long term plans that will guide them in development of their counties. There is need to embrace ICT as a tool for planning. The budgeting should be preceded by socio-economic needs assessment, resource mapping and development prioritization. Priority should be given to the needs of the people and that grants whether conditional or non-conditional should be project targeted
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Article 220 (1) requires both levels of governments to develop annual budgets containing the annual estimates of revenue and expenditure, differentiating between recurrent and development expenditure; proposals for financing any anticipated deficit for the period to which they relate; and proposals regarding borrowing and other forms of public liability that will increase public debt during the following year. Article 220 (2) provides that, a national legislation be enacted to prescribe for the structure of the development plans and budgets of counties; their tabling in the county assemblies; and the form and manner of consultation between the national government and county governments in the process of preparing them. This legislation among other things may contain the following good practices;
a.
The generally accepted planning and budgeting principles;
b. The linkages between the national and county plans and budgets; c. The consultative process which is fully public participative;
d. Comprehensive monitoring and evaluations framework; e. f. Comprehensive provisions for budgetary controls; and Planning and budgetary cycles and reviews.
The ten generally accepted planning and budgeting principles are:
1.
Comprehensiveness: The budget must encompass all fiscal operations of government, i.e. off-budget expenditure and revenue are prohibited.
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.
2. 3.
Legitimacy: Policy makers, who can change policies during implementation, must take part in and agree to the original policy. Flexibility: Decisions should be pushed to the point where all relevant information is available.
4. Predictability: There must be stability in macro and strategic policy, and in the funding of existing policy.
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5.
Contestability: All sectors must compete on equal footing for funding during budget planning and formulation.
6. Honesty: The budget must be derived from unbiased projections of revenue and expenditure. 7. 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.
BOX 12.7b: COUNTY SUBMISSSIONS ON PLANNING, EXPENDITURE, REVENUE LINKAGES During the county consultations the communities raised various issues which were relevant to the planning, expenditure and revenue linkages, they would want to see implemented at the county level: a) The county governments should consistently develop their medium and long term plans that will guide them in development of their counties. b) There is need to embrace ICT as a tool for planning. c) proposal that county government budgets should provide for a minimum of 70% development expenditure, a maximum of 20% personnel emoluments and a minimum of 10% operation and maintenance. d) The budgeting should be preceded by socioeconomic needs assessment, resource mapping and development prioritization. e) Priority should be given to the needs of the people and that grants whether conditional or non-conditional should be project targeted f) Grants allocations should be based on sound fiscal policies and successful past project implementation g) For a county to receive funds or grants from the National Government, or have the National Government guarantee loans, the county should have established an independent county revenue authority as supervisory body for management of such funds. The authority to be composed of community stakeholders elected but not handpicked by the governor.
8. 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. 9. Accountability: Decision makers are responsible for the exercise of the authority provided to them. 14.5.2.2 Planning and Budget Process
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 process is meant to ensure that there is certainty and consistency in funding for ministries, departments and agencies, and adequate measures for enforcing the government to stick within
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its overall budget (aggregated hard budget constraint), while allowing for flexibility in expenditures between ministries and programmes.
There are currently ten MTEF sectors in Kenya comprising of Physical Infrastructure; Special Programmes; Human Resource Development; Public Administration; Environment, Water and Irrigation; the Governance, Justice, Law and Order; Trade, Tourism and Industry; Research Innovation and Technology; Agriculture and Rural Development; Health; Education and National Security. Experience however shows that while MTEF can be an effective tool for planning and budgeting, Kenya is far behind its neighbours in using the tool effectively for expenditure management. Based on a review undertaken in 2004 by the developmental partners, the identified causes for failure to effectively use the MTEF as a management tool were due to the fact that the planning process and the annual budget formulation process operated as a parallel process rather than an integrated process. Secondly, the MTEF process did not specify inter-sectoral priorities or even priorities within sectors for the approval of Government officials or of cabinet. Thus, budgeting in Kenya remains largely incremental, and significant reallocations of expenditures to high priority sectors (or within sectors from lower priority to higher priority activities) are not taking place. Similar findings were noted during the end term review of the GJLOS10. BOX 12.8: COUNTY VISIT SUBMISSIONS ON INTERNAL AUDITS What Kenyans said during the consultations; a) Internal audits should be undertaken on quarterly basis and be made public as a basis for community monitoring and evaluation. b) For a county to receive funds or grants from the National Government, or have the National Government guarantee loans, the county should have established an independent county revenue authority as supervisory body for management of such funds. The authority to be composed of community stakeholders elected but not handpicked by the governor. Based on the experiences of many countries, as evidenced from Tanzania and Uganda, MTEF can be an effective tool to integrate policy with planning and budgeting. The importance of MTEF is to facilitate the government achieve fiscal discipline, to allocate expenditures in line with national priorities, to coordinate donors, and to ensure transparency and accountability.
The sector-wide approach to planning (SWAP) process is another effective planning and budgeting tool and in countries where it has been properly integrated with MTEF, there has been a high level of fiscal discipline. SWAP is a process intended to support a locally-owned coherent sector strategy and expenditure program under Government leadership in a comprehensive and 286
coordinated manner. It is an approach based on a shared vision, priorities and with a joint commitment to a sector strategy and policy framework, rather than a financing instrument. The core SWAP framework is shown in table 12.1 below.
Table 12.1:
SWAP Process
Core elements 1. Definition of the national sector framework (what to align to) 2. Partnership principles (common donor policies on how to align) 1. Sector Investment Plan SIP (tool for prioritisation) 2. Sector Information System performance monitoring 3. Coordination both inter-sectoral and with external partners 1. Channels of funding (ladder of options project, basket, budget support) 2. Financial management (transparency, accountability, value for money) 3. Resource mobilisation (using SWAP to increase funding)
Framework Policy framework
Planning framework
Funding framework
SWAP has so far been implemented to a certain extent in the Governance, Justice, Laws and Order Sector (GJLOS). Other sectors where SWAP has been tried include the Water and the Health sectors. Evidence shows that implementation of SWAP in these three sectors has not appreciated the above principles and as such MTEF has received criticisms from the various agencies. The important factor is that SWAP is not a blueprint, but a process that evolves over time depending on context-specific factors. The principles of MTEF and SWAP which are articulated above show that the planning and budgeting process can be strengthened if it was more participatory and consultative, with more involvement of the public. Indeed, Article 201 of the Constitution provides for the public to be involved in all levels in financial matters. International best practices have shown that public participation is best exercised through the use of the Project Cycle Management (PCM) and Community Participation (CP) tools. The tools are designed to ensure that stakeholders are consulted and relevant information is available, so that informed decisions can be made at key stages in the life cycle of the project. The use of these tools enhances the SWAP evolution 287
and at the same time makes the MTEF process more effective and efficient tool for planning and budgeting.
Figure 14.4: SWAP MTEF Framework
Figure 12.4 shows a graphical representation of the MTEF supported by SWAP and PCM/CP processes. With the constitution providing that the county governments plans and budgets be based on functions and delivery of services, these tools will be the most appropriate for the purpose. The operationalization of these tools should be spelt out in the policy and the relevant legislation on planning and budgeting. The legislation should ensure that the provisions listed below, which are also provided in the Constitution, are incorporated in the legal framework.
a.
Article 10 to ensure that there are provisions which ensure that national values and principles of good governance are incorporated.
b. Article 196 to ensure that county assembly conduct its business in an open manner, and hold its sittings and those of its committees, in public; and facilitate public participation and involvement in the legislative and other business of the assembly and its committees. c. The details to be published annually in the Appropriation Act as envisaged in Article 224 of the Constitution.
d. The procedure for withdrawal of funds from the County Revenue Fund before the assenting of the appropriation Act as envisaged in
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Article 222.
Article 223 of the Constitution provides that the national government may spend money over and above the funds allowed within the Appropriation Act for the financial year. Details of such expenditure are provided for in the Constitution. This amount should not be more than 10% of the budget for the year unless approved by Parliament. Though the provision of Article 223 does not mention the county governments it is our proposal that they should also be allowed to have supplementary appropriations to be drawn from their revenue funds. The details of such provisions should be included in the county planning and budget legislation.
14.5.3
14.5.3.1
Expenditure Control
Expenditure Controls Framework
Article 207 of the Constitution provide for the establishment of County Revenue Fund for each county government, into which all money raised or received by or on behalf of the county shall be paid except money excluded by an Act of Parliament. The conditions given for withdrawals from this Fund can only be made if it is a charge, provided for by an Act of Parliament or by legislation of the county. Secondly the money can only be withdrawn from the fund only with the approval of the Controller of Budget. Figure 12.5 below shows the expenditure control framework, indicating the funds expected to be withdrawn from the County Revenue Fund Account and the control mechanism of the spending. Articles 190 and 225 of the Constitution require the county governments to maintain proper and adequate financial management systems, and to be fully accountable to the public on the expenditure and utilisation of the funds. This whole process is graphically explained in the expenditure control framework shown as figure 12-5. The expected system as shown in the chart will entail the following steps;
a.
All the county funds will all be consolidated in the County Revenue Fund. The fund will contain own revenues and transfers from the revenues raised nationally, grants and borrowings.
b. The county assemblies will vote for the budget as explained in the last section and the necessary Appropriations approved to facilitate expenditure by the various departments of the county. c. It is anticipated that the county treasury will seek quarterly approvals
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from the Controller of Budget for withdrawals from the County Revenues Fund based on the needs and functions being undertaken by the various departments. Figure 12.5: Financial Control Systems in County Governments
The county treasury will then disburse the funds to the relevant departments for expenditure as per the Appropriation Act. As noted in the budget section of this chapter, it is anticipated that the public participation will be part of the budget making process in accordance with the good principles of project cycle management.
14.5.3.2
Procurement/ Supply Chain Management
The Public Procurement and Disposal Act, 2005 which came into operation on 1st January, 2007 has its major objective being to establish procedures for procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities to maximise economy and efficiency. To achieve this overall objective the law was expected to promote competition, integrity and fairness; increase transparency and accountability; and increase public confidence in the supply chain. In addition, the law was expected to be a major catalyst in promotion of local industry and economic 290
development. The Government of Kenya has been implementing the Public Financial Management Reform Programme (PFMR), spearheaded by the PFMR Secretariat in the Ministry of Finance. One of the key pillars of the PFMR is procurement reform with the objective to promoting transparent and accountable systems. However, despite these welldesigned procurement reforms, malpractices in the public sector procurement are rampant. Some of the most notable malpractices based on the lessons learned by The Rural Poverty Reduction and Local Government Support Programme (RPRLGSP) include:
Unjustified needs and priorities. Cost overestimations. Manipulation of technical specifications to favour certain bidders. Poor adherence to tender and bid procedures. Collusion between bidders and LA officials. Lack of objective criteria to evaluate bids. Conflict of interest (some bidding agencies are owned by councillors or staff). Poor monitoring of the procurement and contracting process.
Other problems which have been encountered are delay in procuring of goods and services due to lengthy and cumbersome procurement procedures set in the law. For example it requires a minimum of 90 days to procure an international related service or good. Even for local items the bottlenecks are many to the extent that a basic procurement can take as long as one month even for items of low value. The Constitution has provided for some amendments to the Procurement and Disposal Act. Article 227 of the Constitution 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. The Constitution has provided that an Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following:
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a.
categories of preference in the allocation of contracts;
b. the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination; c. sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and
d. sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.
The Constitutional provisions will undoubtedly enhance the involvement of Kenyans in supply of goods and services especially where foreigners have benefited more than the locals. However, keys issues like capacity, period of procurement and other bottlenecks will require to be addressed.
14.5.3.3
County Internal Audit Function
Article 225 (2) of the Constitution provides that Parliament shall legislate to ensure that there is both expenditure control and transparency in all levels of governments. Internal auditing is one of the established systems of providing the required financial controls in institutions. According to the definition provided by the Institute of Internal Auditors (IIA), Internal Auditing is an independent, objective assurance and consulting activity designed to add value and improve an entitys operations. It helps an entity accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control and governance systems.
The opinion of the public during the county public consultations summarised in the box above, it was clear that Kenyans preferred establishment of strong internal audit systems to consistently provide for an oversight to the usage of public funds. The internal audit functions in Local Authorities currently draw their authority from the Treasury Circular No. 16 / 2005, titled Establishment and Operationalization of Audit Committees in the Public Service issued by the PS, Treasury, on 4th October 2005 with an effective date of 31st October 2005; and the Local Authority Financial Management Regulations, 2007.
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To enhance oversight, governance, accountability and transparency in the Public Service the Treasury Circular enforced the establishment and strengthening of audit committees in all ministries, departments, state corporations and local authorities. The audit committees are responsible for independent in-depth review of the framework of internal control and of the internal audit systems. The Local Authority Financial Management Regulations, 2007, provide the following functions for the internal audit section in the local authorities:
a.
The internal audit sections, to report to a non-operational independent Audit Committee.
b. The head of the Internal Audit section be a person who meets the qualifications and requirements set out in the scheme of service.
Code of Practice for Internal Audit in Local Government in United Kingdom sets out four main principles to be observed for internal auditors:
a.
Integrity - All internal auditors should demonstrate integrity in all aspects of their work. At all times the integrity and conduct of each internal auditor must be above reproach. The relationship with colleagues, internal clients and external contacts should be one of honesty, truthfulness and fairness. This establishes an environment of trust and confidence that provides the basis for reliance on all activities carried out by individual auditors and the internal audit team.
b. Objectivity - Objectivity is a state of mind that has regard to all considerations relevant to the activity or process being examined without being unduly influenced by personal interest or the views of others. The internal auditor must be impartial in discharging all responsibilities; bias, prejudice or undue influence must not be allowed to limit or override objectivity. Internal auditors must act objectively and be perceived as doing so, and must avoid any conflict of interest arising either from professional or personal relationships or from pecuniary or other interests in an organisation or activity subject to audit; resist undue influences that could restrict or modify the scope or conduct of the work or significantly affect the content or judgments in the internal audit report. c. Competence - Internal auditors should apply knowledge, skills and experience to their work, seeking additional advice and support where necessary to ensure work is carried out competently. They should ob-
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tain sufficient knowledge of the organisations aims, objectives, risks and governance arrangements; the purpose, risks and issues of the service area; the scope of each audit assignment; relevant legislation and other regulatory arrangements that relate to the audit. d. Confidentiality - Internal auditors must safeguard the information they receive in carrying out their duties. Any information gained in the course of audit work should remain confidential, without limiting or preventing Internal Audit from reporting within the organisation as appropriate.
CIPFA also provides that for internal audit services to work properly in the public sector, independent audit committees must be put in place. The purpose of an audit committee is:
a.
to provide independent assurance of the adequacy of the risk management framework and the associated control environment;
b. to provide independent scrutiny of the authoritys financial and nonfinancial performance to the extent that it affects the authoritys exposure to risk and weakens the control environment; and c. to oversee the financial reporting process.
The South Africa Municipal Financial Management Act 2004 provides that each municipal entity must have an internal audit unit. The responsibilities for the unit are:
a.
prepare a risk-based audit plan and an internal audit program for each financial year;
b. advise the accounting officer and report to the audit committee on the financial year; and c. implementation of the internal audit plan and matters relating to internal audit, internal controls, accounting procedures and practices, risk and risk management, performance management, loss control, and compliance with this Act, the annual Division of Revenue Act and any other applicable legislation.
The Act also provides that each Municipal entity must set up an audit committee. The Act provides that an audit committee is an independent advisory body. It has the responsibility in advising the municipal council, the political office-bearers, the accounting officer and the management staff of the municipality, on matters relating to 294
internal financial control and internal audits; risk management; accounting policies; the adequacy, reliability and accuracy of financial reporting; performance management; and effective governance. The members of an audit committee must be appointed by the council of the municipality or, in the case of a municipal entity, by the council of the parent municipality. One of the members, who is not in the employ of the municipality or municipal entity, must be appointed as the Chairperson of the committee. No councillor may be a member of the audit committee.
14.5.3.4
Public Oversight Role
Community participation (PC) has been used to some extent in the local government sector as a tool for monitoring community based projects developed by the local authorities. However project cycle management (PCM) as a tool for monitoring and evaluation has not been fully embraced in Kenya. Available literature shows that the combined PCM/CP as a tool for monitoring is very effective in project expenditure controls. However, despite the introduction of Local Authorities Service Delivery Action Plan (LASDAP), incomplete or uneconomically viable projects have been some of the most glaring hallmarks of undelivered services in local authorities in the country. For nearly one decade, massive efforts have been expended towards the implementation of priority projects selected through LASDAPs. By 2009 more than Ksh. 35.5 billion had been spent on projects through the disbursement of LATF funds to Local Authorities in the past 10 years, without effectiveness in service delivery from this fund. Many reasons have been advanced for the failure of LASDAP projects in local authorities. Some of the most commonly cited factors include corruption, lack of goodwill for LASDAP, lack of capacity in terms of skills and competencies and weak institutional structures; delay in the disbursement of LATF; inadequate procurement systems; and bad governance (MoLG 2008). A weak commitment to implement policies combined with poor service delivery characterizes many Local Authorities, undermining their ability to successfully complete projects that can positively impact the lives of poor people within their jurisdictions. Despite all the above weaknesses and the perceived failure of LASDAP, the major problem as was established from the lessons learned through the Rural Poverty Reduction and Local Government Programme (RPRLGSP) was lack of adequate project management systems. The programme proved that if project cycle management (PCM) were adequately implemented with, community participation (CP), including 295
a well-designed process of monitoring and evaluation, the success rate would be very high. PCM is defined as the application of knowledge, skills, tools and techniques to project activities, to meet specific scope, time, cost and quality goals of projects (Project Management Institute, 2008). PCM is programmed through a project cycle and this cycle is a logical flow of various project stages or project components broken down into a logical sequence of activities. This phase or stage by stage approach stimulates people to share the same perceptions, speak the same language and use the same tools and formats to design and implement a project. Typically, the project management cycle comprises seven standard stages, phases or activities, arranged in a logical sequence to accomplish a projects goals or objectives, and include: Stage 1 - policy setting and strategic planning (achieved through the SWAP process sector policy development). Stage 2 - project identification (achieved through the SWAP process of sector planning framework). Stage 3 Stage 4 Stage 5 Stage 6 Stage 7 - appraisal, prioritisation and selection. - formulation and planning. - contracting and commitment. - implementation, monitoring and midterm evaluation. - final evaluation.
The importance of monitoring demonstrated by RPRLGSP whereby out of the 65 projects funded under the PRF, 97% had their construction completed and 91%had started operation. This compares with the Local Authorities Transfer Fund (LATF), projects as given by the National Taxpayers Association (NTA) of completion rate estimated at around 45% and an operation rate of 31% (National Taxpayers Association (NTA) 2009).
14.6
14.6.1
Financial Reporting and Audit

County Financial Accounting and Reporting
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One of the major principles of Public Finance as provided in Article 201(a) of the Constitution includes public participation in financial management. The public may only participate effectively in the financial matters of a county government if they have the necessary and timely information. The goal of a PFM system is to support the achievement of fiscal discipline, strategic and efficient allocation and use of funds, value for money and probity in the use of public funds. ICT has provided a platform through which, financial information can be provided. This has ensured that the lag between demand and supply of information is minimized.
14.6.2
Integrated Financial Management Information System (IFMIS)
IFMIS is an application that combines budget preparation, budget execution, accounting, financial management and reporting activities on a single integrated platform. It seeks to enhance transparency and accountability; efficiency, timeliness in the production of public accounts, reliability and timeliness in the management of reports for decision-making, accountability, easy access to financial information, internal controls and eliminate duplication of data. It further ensures commitment control that will assist MDAs to manage their budgets effectively and updated books of accounts in real time. The National Government should develop an integrated financial management information system that will be applicable to both levels of Government. This will facilitate the flow of intergovernmental fiscal transfers since the two levels should have a system that is compatible and facilitates operations between the two governments financial systems. This will be in line with Article 190(1) of the Constitution which states that there shall be legislation to ensure that county governments have adequate support to enable them to perform their functions. Article 190(2) of the Constitution provides that County governments shall operate financial management systems that comply with requirements as shall be prescribed by national legislation. In Sub-article (3), it further stipulates that Parliament shall, by legislation, prescribe circumstances under which the national government may intervene if a county government; (a) is unable to perform its functions; or (b) does not operate a financial management system that complies with the requirements prescribed by national legislation. Article 190(4) of the Constitution provides that Legislation under clause (3) may,
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in particular, authorize the national government (a) to take appropriate steps to ensure that the county governments functions are performed and that it operates a financial management system that complies with the prescribed requirements; and (b) if necessary, to assume responsibility for the relevant functions.
14.6.3
Reporting
In relation to financial reporting, public entities have now adopted the International Public Sector Accounting Standards (IPSAS). IPSAS are a set of accounting standards issued by the IPSAS Board for use by public sector entities around the world in the preparation of financial statements. These standards are based on International Financial Reporting Standards (IFRS) issued by the International Accounting Standards Board (IASB).The standards focus on the accounting and financial reporting needs of national, regional and local governments, related governmental agencies, and the constituencies they serve. Currently, all Local Authorities are required to prepare and report their accounts using IPSAS. Several international organizations have adopted IPSAS which include OECD, United Nations System, Commonwealth, and Interpol. It should therefore be a requirement that all county governments should report their accounts using IPSAS. Article 185 of the Constitution provides that the legislative authority of a county is vested in, and exercised by, its county assembly. In Sub article (3) the county assembly is specifically given oversight role over the executive and any other county executive organs, while respecting the principle of the separation of powers. While there are several ways in which the assembly may exercise this role, one critical method is by receiving and evaluating reports on various aspects of the county executive management. The issue to consider is the type of reports and the regularity in which they need to be submitted to the assembly by the executive. In some occasions the assembly may generate its own reports particularly in areas where the report by the executive is not satisfactory. Further the principles of finance as enumerated in Article 201 states that there shall be openness and accountability, including public participation in financial matters. The participation can only be effective if the public are participating from an informed position. This means that necessary and timely information have to be disseminated to the public. The information will be in form of reports. The issue here again is what type of information is required by the public and how often the reports should be given.
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The preparation of periodic reports is necessary as it:
requires Governments to undertake a comprehensive review of national legislation, policies and programmes on development; ensures that each State regularly monitors the realization of the planning goals and budgetary objectives; encourages Governments to set priorities and indicators against which they can judge performance; provides Governments with a benchmark against which subsequent reports may be compared; provides information and opportunity for public to scrutinize and discuss Governments performance; highlights difficulties in implementation that might otherwise have gone unnoticed.
It is therefore recommended reports to the County Assembly may include the following:
Financial reports (including budget implementation, debt position, cash position). Project implementation report. Sector reports. Annual reports of activities and performance of the county. Annual Financial statements. Adherence to county plan.
Frequency of reporting should be quarterly or such other period as a particular county may determine depending on its circumstances except for the above last three reports which shall be done annually. The said reports made to the public should contain the following information:
Project cycle management reports. Financial reports.

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Obligations of the public to the county government e.g. paying rates. Laws passed by the county government.
14.6.4 Role of the Auditor-General in Financial Audits

Article 229 (1) of the Constitution provides for the establishment of the Office of the Auditor-General whose responsibility shall be to audit and report, in respect of that financial year on the following:
a.
The accounts of the national and county governments.
b. The accounts of all funds and authorities of the national and county governments. c. The accounts of all courts.
d. The accounts of every commission and independent office established by this Constitution. e. The accounts of the National Assembly, the Senate and the county assemblies.
The major issue for consideration is the capacity of the office of the Auditor General to carry out its mandate as outlined in the constitution. Two aspects need to be considered, qualitative and quantitative capacity. Since the mandate covers all public bodies, there is need to ensure optimal staffing of professionals with relevant skills and competencies complemented with requisite resources to enable them execute their mandate effectively. In order that the office carries out its mandate effectively, it should be decentralized to the county level, while ensuring adequate capacity.
14.7
14.7.1
Financing County Infrastructure and Investment

Role of Counties in Infrastructure Development and Delivery
County governments have been assigned the central role in the development and delivery of infrastructure in the Constitution. Counties are mandated to plan, develop, manage and maintain a broad range of infrastructural facilities within their jurisdictions. These include agriculture related facilities such as cattle dips, livestock sale yards, county abattoirs; health facilities; refuse dumps; cinemas halls; libraries; 300
museums; county roads; ferries and harbours; markets, housing; village polytechnics; storm water drainage; water and sanitation installations and fire stations among others. As provided in Schedule 4, the National Government is among other roles responsible 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. Some aspects of social and economic infrastructure are also shared in the sense that the Constitution has assigned both levels of government concurrent responsibility and accountability for the delivery of services at different levels within the same sector. Examples of such concurrent functions for which infrastructural facilities will require to be developed by each level of government include: education, transport, health facilities, public works, public investment, statistics, disaster management, energy regulation, environment and natural resources, forestry, tourism, betting, casinos etc. The functional allocation and accountability for infrastructure delivery represents a major policy shift compared to the situation prior to the enactment of the new constitution. The infrastructure development responsibilities of counties include: county roads, storm water drains, water supply, sewerage, solid waste dumps, hazardous waste disposal facilities, security and street lighting, telecommunications utilities, ferries and harbours, public road transport, markets, county abattoirs and slaughter houses, livestock sale yards, county assembly halls, county offices and buildings, fire stations, county hospitals, health centres and dispensaries, cemeteries, conference and social halls, cinemas, museums, electricity and gas reticulation infrastructure, libraries, county stadia and parks, vehicle parking yards and silos, housing development, village polytechnics, home craft centres, nursery schools and child care facilities.
14.7.2
Infrastructure Gaps and Equitable Development in Counties
County infrastructural facilities and installations are essential for supporting productivity within the counties and the wider national economy. Development of county infrastructure will require large initial capital investment despite the infrastructure projects, being pivotal in their delivery of the social and economic rights specified in the Bill of Rights (Article 43). Given the critical role of infrastructure development, it will be important for the leadership of each county to establish the scope, extent and quality of infrastructure within their respective jurisdictions. This information would be consolidated and an appropriate data bank established at the National Government level. The exercise 301
will help in establishing the infrastructure gaps in counties and assist them in the prioritization of their capital investment programmes. The infrastructure data would then be used for national, inter-county and county planning. The data will also inform the equitable share of national revenues and the allocation of conditional and unconditional grants.
14.7.3
Approaches for the Development and Financing of County Infrastructure
County governments can opt to directly contract out work relating to the development of 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). Counties can also draw lessons from infrastructure and service delivery approaches which have been in practice by the current local authorities. There are for example, water and sewerage companies that are wholly owned by their 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. There are four broad approaches for the joint development and financing of County Infrastructure, which individual counties, or a combination of them 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.
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 and management contracts or conccessions.
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d. Public-private partnerships (PPPs): Infrastructure PPPs are cooperative ventures between the public sector (county governments) and the private sector built on the expertise of each partner that best meets clearly defined public needs through the appropriate allocation of resources, risks and rewards (the Canadian Council for (PPPs), 2001).
The Public Procurement and Disposal Regulations (2009) of Kenya identifies five types of partnerships that can be adopted for the delivery of county infrastructure:
i.
Management Contracts (MCs). MCs are short term PPP arrangements under which the public sector procuring entity entrusts private companies with management services on a contract term for a defined period. The public sector retains ownership and control of the capital assets. Leases: when the public sector leases an asset to a private entity on determined periodical rental sum for a specified period of time and the entity manage, operate and maintain the facility in exchange of fees or charges from consumers of the service provided.
ii.
iii. Concessions: concessions, is when the public sector leases an asset to the private sector for a period of time at a fee and share of profit with the private sector and the public sector sharing the risks. The concessions normally covers a period not exceeding 30 years under which the private party maintains, rehabilitates upgrades and enhances the facility under consideration in the course of the concession. iv. Build-Own-Operate Transfer (BOOT): these are long term PPP concesssions in which private companies invest, build, operate and own infrastructure until capital is recovered through fees under a concession from the county, and the facility in question is then transferred back to the county government. v. Build-Own-Operate (BOO): contracts where the private sector invests, builds and permanently owns asset under contractual terms that secure public interest under county supervision.
Other types of PPPs that county governments can utilize are: Design-Build-Maintenance (DBM); Design-Build-Operate (DBO); Build-Lease-Operate-Transfer (BLOT); DesignBuild-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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14.7.4
County Governments Infrastructure Development Fund
The envisaged infrastructure development in the counties will require huge capital outlays. The financial resources available, even after the counties have received their equitable share of national revenue, it will not be possible to finance infrastructure from normal annual budgetary allocations. Considering the importance of the county governments and the pivotal role they will play in catalysing local economic development, it would be appropriate to establish a sector specific financial institution that will cater for the long term funding needs of the county governments. This will facilitate more effective access to financing and therefore improve and hasten the projects completion cycle. A County Infrastructure Development Fund shall be established to offer long term loans for financing infrastructure and capital investments in county governments including in cities, urban areas and county public entities. The fund shall operate as a body corporate under the stewardship of a competent board and management and may be capitalized by the national government, county governments, foundations, bilateral and multilateral agencies and the private sector. The details on the capitalization, governance and operations of the Fund may be provided by regulations initiated by the organization of county governments and approved by Parliament.
Figure 12.6:
County Infrastructure Financing and Development
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This concept has precedence in the country where there are institutions like in agriculture sector, Agricultural Finance Corporation; the Industrial Development Bank in the industrial sector; Kenya Tourism Development Corporation in the tourism sector; and the National Housing Corporation in the housing sector. While the county governments are strictly not a sector, the concept of specialized lending can be adopted and a financial institution established to cater for the specific infrastructural needs. The concept is not entirely new, as the dormant Local Government Loans Authority (LGLA) established vide Local Government Loans Authority Act (Cap 270) was meant to provide funding for long term infrastructure needs of the Local Authorities. Proposals have been made for the revival of the LGLA including restructuring it to a Municipal Development Bank in line with the recommendations made in the 1980s. So far no progress has been achieved despite various efforts by successive ministerial administrations. A County Infrastructure Development Fund that is managed professionally could be established to facilitate the development of county infrastructure. The fund could also be the special purpose vehicle through which guaranteed loans and conditional grants for development of infrastructure in the counties are channelled. The fund will administer the loans disbursements and repayments. It will also provide the required credit references to assist the county governments in their eventual borrowing from the open money market.
14.8
14.8.1
Institutional and Transitional Issues

Institutions and Funding of Transitional Arrangements
The Commission on Revenue Allocation and the Senate play key roles in intergovernmental fiscal transfers. They act as counterbalancing forces against the national executive and the national assembly, respectively in the sharing of national revenues. The role of the Commission on Revenue Allocation is largely advisory. It makes recommendations to the Senate, the National Assembly, the national executive, the county assemblies and the county executives. This role is complemented by that of the Senate (Article 96(3)) in the determination of the allocation of revenues among the counties. The Senate also monitors the utilisation of revenue allocated to counties; and recommends a new formula for revenue sharing initially for three years and thereafter once every five years. To be effective and credible in playing their role, both institutions must have sufficient capacities. 305
There has been a debate as to whether budgetary resources should be allocated to the counties before the county governments and the Senate are in place. The argument arises especially with regard to the 2011/2012 budget which has since been passed by the National Assembly. It is arguable that it would have been possible to set aside money in the 2011/12 budget to support transitional requirements for county governments. The budget could have been managed by the proposed Transition Authority or any other body which may be designated for that purpose with sufficient oversight by CIC and parliament. It is without doubt, however that counties will require resources to operate immediately after the next elections. It is recommended that CRA should design and recommend a formula for revenue allocation that could be used in the first instance to allocate revenues to counties pending the election of senators. This initial budget could be approved by the National Assembly, with a proviso for the formula to be reviewed by the Senate before the next budget.
14.8.2
Framework for the Audit and Re-Allocation of Existing Infrastructure Assets
Experience locally and elsewhere has shown that public infrastructure assets and facilities get vandalized, disappear or are simply illegally transferred for private ownership particularly during periods of transition before, during or soon after general elections and regime changes. Moreover, the envisaged transition is unique in that unlike the past where local government changes were only at the political level, the establishment of counties would entail changes at executive officers ranks. This underscores the need to take proactive measures to stem the possibility of the same happening prior to the assumption of office by county governments during the next general election. It is important that the recruitment of auditors be hastened to undertake infrastructure verification and audit. The proposed Transitional Authority should then undertake reallocation and the transfer of infrastructural facilities, land, vehicles, plant, equipment, tools to either to the National Government, county governments, Commissions and 306
Independent Offices etc. This recommendation recognizes the fact that study on assets and liabilities of local authorities (and national government departments in counties) for which the TFDG has developed terms of reference may not be completed before the expiry of the Task Forces tenure. It also recognizes that the study in question will be limited to about 15 local authorities, and on completion, its recommendations will be limited to policy aspects. Hence, the critical work involving the actual audit of the assets of all local authorities and those of government departments located at county level will still require to be undertaken in earnest. In the meantime, the government, through the Office of the Head of Public Service should issue a circular to all accounting officers directing them to, in turn advise their field offices to compile inventories on assets and liabilities and forward them to the respective accounting officers, ministry of Finance and the Head of Public Service.. The accounting officer of the ministry responsible for local authorities should issue a circular to all local authorities directing them not to dispose off any asset with effect of the date of the circular or some other specified date. Timelines and sanctions for deliberate asset omissions and/or providing inaccurate data should be specified in the circular.
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Chapte
15
The Implementation Framework for Transition to County Governments

15.1 Proactive Management of the Transition
The core pillar of the CoK 2010 is devolution. The form of devolution adopted by Kenya is explained in Chapter Two (2) of this Sessional Paper. It is a major departure from the centralized system of governance to which Kenyans are accustomed. It is important to recall that Kenya had a devolved system of government at independence, but this was not institutionalized as it was abandoned at infancy for a highly centralized one in circumstances briefly discussed below. In the circumstances therefore, the current transition into devolved government is a fairly new phenomenon and experience. The envisaged transition has far reaching implications to implementation of the Constitution generally and giving life to devolution specifically. It is therefore imperative that appropriate policy, institutional and legislative measures are put in place to guarantee smooth, orderly and seamless transition into devolved governments. These measures will revolve around issues of governance, human and financial resources, infrastructure, assets and liabilities, integrated planning, budgeting, functional assignment, transfer of functions, communication and access to information, civic education, citizen participation and service delivery. The adoption of the CoK 2010 by the people of Kenya on the 4th August 2010 and its promulgation on 27th August 2010 marked a major transition in Kenyas political governance. The initial transition was in 1963 when Kenya attained self-government from a centralized colonial administration to a self-determining republic founded on democratic multi-party parliamentary devolved system of government. It was a
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quasi-federal system of government in design with national and seven autonomous regional governments, each with a president. The city of Nairobi was an extra-provincial region headed by a Mayor of the City Council. Regional governments at the time, like the County governments in the Constitution, were assigned specific functions with a timetable for the transfers of the functions. The regional governments also had independent sources of revenue. Similarly, like today political representation in the regions was through regional assemblies at the local level and a Senate at the national level. The difference between the earlier independence system of government and the current system is that the former was a by-product of negotiations for independence. Regional governments were incorporated in the Constitution to safeguard interests of minority tribes and the settler community after independence. This contrasts with the new system that was born out of a long struggle for constitutional change and sealed through a referendum. The regional governments were dismantled by the dominant political class soon after independence through constitutional changes. The first amendment made Kenya a republic, while simultaneously weakening regional governments. The amendments reduced the powers and functions of regional governments over taxation, local authorities and concurrent functions, such as agriculture, education and housing. The second amendment replaced the regions with provinces and also abolished the Senate. Subsequent further diminution of taxation powers rendered the regions completely dependent on the central government for finance. In sum, the regional governments were abolished within three years of independence and the local authorities that remained as units of governance at the local level lost most of their powers to deliver services and self-financing following the enactment of the Transfer of Functions Act (1969). Thereafter, Kenya maintained a highly centralized system of government. The foregoing historical events informed the design of the current system of devolved government provided for in the Constitution, particularly the entrenched powers and functions of County governments and specifically the sources of revenue. The experience of what befell the regional governments at independence should particularly inform the policies that should be developed to safeguard the independence and promote the role of county governments as provided by the Constitution.
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Figure 13.1:
Conceptualizing the Transition Process to Full Establishment of County Governments
15.2
Organizing the Transition Road Map
As illustrated in Figure 13.1 the Task Force on Devolved Government has conceptualized the Transition Road Map in three phases relating to key issues of finance, human resources, office facilities, land and other assets, liabilities, and civic education. This framework identifies the key issues that must be addressed to ensure proper establishment and working of the new county governments. The issues are policy and institutional in nature and require the contribution of various actors. The TFDG proposes that these Transition Processes be anchored in law through a Transition to County Governments Bill, 2011. In articulating the transition issues, it will be important to keep the following overarching issues and processes in mind, namely:
Human Resource: how existing human resource in the central government, including the Provincial Administration, and local authorities will be rationalized and deployed and the management of the social, political and financial implications of the process; 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;
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On-going reform processes: how the various on-going 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.
15.3
Transition to County Governments
Transition matters are given special attention as is evident from the provisions of Chapter Eighteen and the Fifth and Sixth Schedules of the Constitution. The Constitution requires that the laws on devolved government provided for in Chapters Eleven and Twelve and the Sixth Schedule should be fast-tracked within the period of eighteen (18) months as provided for in the Fifth Schedule. The Constitution also creates the Constitution Implementation Oversight Committee (CIOC) of Parliament, Commission on Implementation Commission (CIC) and Revenue Allocation Commission (CRA) for the purpose of monitoring not just the implementation of the Constitution, but also the transition to devolved government. Section 4 of the Sixth Schedule of the Constitution in particular provides for CIOC to monitor the implementation of the Constitution through regular reports by CIC. The reports are expected to provide progress on the process of establishing the infrastructure required for the operations of each County, locating of offices and assemblies; establishment and transfers of staff to the counties; and devolution of powers and functions to the County governments. The Commission on Revenue Allocation has also been given the constitutional mandate to make recommendations on and any other matter related to revenue allocation between the County and National governments and also the monitoring of the enactment of laws on devolved governments. Section 15 of the Sixth Schedule provides for legislation to empower CIC to effectively monitor the implementation of the system of devolved government. Although legislation on devolved government are deferred until after the first election of County assemblies and governors (Section 2(2) of the Sixth Schedule), it is imperative and prudent that the transition process starts before then under appropriate legislation with corresponding administrative action. This is necessary because of a number of reasons. Firstly, there is need for legislation that will provide for the devolution of functions to 311
County governments as stipulated in Section 15 of the Sixth Schedule. The legislation will make provisions for: 1. transfer of functions from the national to County governments over a three year period from the first elections under the Constitution; assistance and support by national government necessary to build capacity for the County governments to govern and effectively deliver services related to the functions assigned to them; criteria for consultation between county and national governments on when and how transfer of functions should be effected; allowing for asymmetrical devolution of powers and functions.
2.
3.
4.
Secondly, it is imperative that immediately County governments are inaugurated after the next elections they have capacity to exercise control over institutions under their jurisdiction. This requires that these institutions, which may include government departments and local authorities, are in the next one year prepared to play their roles in the transition period. It is therefore crucial that a certain minimum set of structures is in place to facilitate the smooth transition to County governments after the 2012 elections. These include infrastructural facilities being developed and made ready and available to the County governments for day to day operations. Thirdly, the national government and other relevant institutions, including the Judiciary and constitutional commissions should prepare to be of service to County governments at their initial stages. It would be necessary therefore to mobilise all these institutions to play their relevant roles. This will require an organ to coordinate preparatory work of putting in place institutional frameworks and necessary infrastructure to start off County governments. This could be an existing institution that may include a government ministry. Towards this end establishment of a transitional mechanism through which administrative coordination is superintended before County governments take over is proposed. As discussed below an independent institution with legal authority is preferred. This is because of neutrality and necessities for technical know-how that will be needed to undertake preparatory work before and after the County governments are in place. It is on these premises that a Transitional Authority, entrenched in national legislation, is seen as the appropriate mechanism capable of facilitating efficient coordination of the disparate government functions.
15.4
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The Transition Programme
It is envisaged that the transition to county governments will be in three phases. The first phase (shown in annex VI) is the period prior to the inauguration of county governments after the next elections. The second phase (shown in Annex VII) is the period of three years after the next elections as provided for in Section 15(1) of the Sixth Schedule of the Constitution. The last phase starts after the end of phase two and will continue until all the county governments are fully in control of their affairs.
15.4.1
Phase 1
There are currently two sets of public servants working within the counties. The majority currently belong to ministries and government departments. The other are those employed by local authorities which will be without an employer after the next election as a result of repeal of the Local Government Act Cap. 265 under a proposed devolution Act. As provided by Article 235 of the Constitution, County governments will be responsible for establishing their own public services, but before then the staff of the national government and previous local authorities will continue to provide services in the counties under the direction of relevant ministries including the ministry responsible for devolved government in respect of staff of the previous local authorities. In order to effectively deploy staff in counties for the purpose of secondment and redeployment back to their respective ministries, the audit of staff referred to in Chapter 6 is a priority in this phase. The staff audit will assist both levels of government in re-deployment of the staff and manpower planning purposes. The audit of assets and liabilities of local authorities on the one hand, and assets and infrastructure of the national government in the counties on the other, is a key aspect of this phase of the transition. This is necessary to determine how existing assets and liabilities of local authorities will be apportioned and managed; and how the physical infrastructure, particularly buildings and other assets located in the counties will be shared between the national government and County governments. This issue is particularly pertinent for local authorities; because once the liabilities are determined there will be need for a policy decision on whether the liabilities should be transferred to a sinking fund or to the national government. Secondly, the audit is necessary to ensure that local authority assets are safe during the transition. In this respect any further dealings on such assets need to be immediately halted where such audit has not been undertaken conclusively. As indicated in Chapter Three (3), urban areas will be reclassified into cities,
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municipalities and towns. There will be need for fresh demarcation of these urban areas for the purpose of their classification, planning and governance. This is a critical exercise which must precede the 2012 General Elections. There is also need to review on-going policy reforms, programmes and projects being implemented by the central government and local authorities to establish those to be transferred to County governments. These would include, for example, projects related to functions that have been assigned to County governments by the Constitution, but currently funded by Constituency Development Fund (CDF). Others would be donor funded programmes and projects being implemented by ministries and the local authorities. One of the most critical activities in the whole process of devolution is the transfer of functions 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 ministries, departments and other agencies (MDAs). This process was expected to start in June, 2011 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 shall be need to review legislation and policies governing all the functions to be devolved. It is estimated that about 700 pieces of legislation will have to be amended, a task that is expected to be finalized before June 2012. The process for analysing the assignment of functions will be under the supervision of the Cabinet Committee on Implementation of the Constitution (CCIC) supported by the Committee of Permanent Secretaries (CPS) with policy advisory role being played by the proposed Transitional Authority. The CPS will work through a Technical Working Group comprising of experts from MDAs and stakeholders from the non-state sector. Reports and technical papers produced through this process and approved by the Cabinet will be the basis for transfer of functions to the County governments. There will be need for County governments to underpin their decisions on solid data bases. In this respect, it will be important for the national government to collect and produce key data for each County during the transition. This can be achieved by the developing profiles of each County that provide data usually found in District Development Plans. The profiles may be extended to include estimation of macroeconomic data such as revenues, gross domestic product and inflation rates. Historical analysis of the cost of providing public services in each County is an important component of this process and should be initiated at the functional analysis process. There is also need for an agreement on the budgeting for and the level of budgets to 314
be allocated to the County governments for the 2012/13 fiscal year. This is important because even though County governments may not take over all the functions before the end of the relevant fiscal year, they will all have financial requirements from the beginning and most counties are likely to have assumed responsibility for some functions before the end of 2012/13. It is expected that the CRA will be instrumental in this undertaking while the proposed Transitional Authority will facilitate capacity building. One of the pressing activities to be carried out during this phase of the transition is civic education on devolved government. This is necessary to promote a better understanding by Kenyans on their role in the governance of County governments and the role of these governments with respect to delivery of public services. This aspect is clearly articulated in Chapter 8, which calls for the institutionalisation of civic education through legislation. This programme should be implemented immediately the devolution bills are enacted into law.
15.4.2
Phase 2
Activities in this phase will focus on institutional capacity building and assumption of and powers by County governments from the national government as provided for and assigned under Article 186 and the Fourth Schedule of the Constitution. The role of the national government and other actors in supporting the County governments in building their capacity will be essential, particularly as County governments take on more functions. Immediately after the first elections under the Constitution County government will need support for the following purposes: the swearing-in of the Governors, Deputy Governors and the members of the County assemblies; the election of speakers of the County assemblies; and, the appointment of clerks. Support to train the County executive committee and the initial core County staff will be essential. Thereafter, the counties will require assistance to recruit and build capacity for the County public service boards. It is expected that as the County governments recruit their staff, the national government will avail its training institutes to build capacity for the County staff to prepare them deliver County services effectively. It would be appropriate; however, if an administration institute is identified, anchored in statute, financially supported and developed to serve the needs of County governments. As County governments fill up established posts in their public services, seconded staff who will not have been absorbed shall be redeployed to the national government. The national government will need to make contingency plans to re- absorb such 315
staff or deal with them as may be appropriate. This issue is of such importance that planning for it should ideally start in Phase 1. Assets previously belonging to local authorities and those of the national government whose transfer to County governments has been decided by agreement shall be divested to County governments immediately after the 2012 General Elections. Other required physical infrastructure and facilities will be developed jointly by the national and County governments with oversight by the CIC and Parliament. Priority in the development of County infrastructure would require substantial use of conditional grants. A major activity involving both levels of government is the transfer of functions to County governments. This activity must be done and concluded within the three year transition period provided by Section 15 of the Fourth Schedule. Criteria shall be developed to guide the process of transfer of functions and special attention will be paid to the capability of a County government to perform the transferred functions. In the likelihood that the transfer of functions has to be asymmetric, the criteria must be clear and objective to avoid the politicization of the process. The objective of civic education at this stage will be to entrench the principles of public participation and promotion of access to information. Involvement of citizens in all aspects of governance, particularly in decision-making will be encouraged. Civic education will therefore place emphasis on informing the citizens of their rights to participate and to hold County governments to account. Citizens fora discussed in Chapter 3 will be the focal points for both civic education and public participation. It should be emphasized that activities related to both issues should be driven by local actors as a means of promoting local ownership. It is also important at this final stage of the transition that the performance of both levels of governments, including progress on the implementation of devolution, is continuously monitored and reviewed. In this respect, all activities of either governments, particularly planning and budgeting and delivery of services must have monitoring and evaluation components. Service deliver plans must be accompanied by work programmes with measurable outcomes and with clearly identified actors. The aim should be to develop a culture of accountability for service delivery by public officials that will apply beyond the transition period.
15.4.3
Phase three
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It is expected that all county governments will have assumed all the powers and functions after phase 2. In all likelihood this may not be achieved and as such further transfers would have to be made and monitored. It is proposed that this becomes the main activity in phase 3 which should start immediately phase 2 ends by August 14, 2015. Some of the issues likely to be under consideration at this stage would be: any remaining functions to be transferred from the national government to county governments; capacity building and support for county government; transfer of national functions to county governments; and development and coordination of policies between the national government and county governments. At the beginning, coordination in this period will be the responsibility of CIOC and CIC since the Transition Authority would have lapsed by then. Subsequently, after CIC will have wound up at the end of its 5 year mandate, the national government under the oversight of Parliament will continue to monitor the activities of this phase.
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The Task Force submitted six draft bills related to devolved government to the Deputy Prime Minister and Minister for Local Government on the 11th of July, 2011.Since then, the following events have occurred that require specific mention:
1. The draft bills were subsequently refined and the revised copies submitted to the CIC on 1st August, 2011 to replace the earlier versions. 2. The Urban Areas and Cities Bill was passed but with some changes following some recommendations by stakeholders and the cabinet. Significant among these changes were the population figures for the cities, municipalities and towns which fundamentally changed the distribution of these entities across the country. 3. The Elections Bill was enacted by of Parliament and some of the recommendations we had made for inclusion were deferred on the basis that they were not election issues. These include removal from office of governors (impeachment), and county assembly members which were found to be best suited for inclusion in a different law. We recommend that they form part of the provisions of the devolved Government Bill. 4. We had advised that the six bills be processed together as a single programme in view of their interrelatedness. We, particularly, were of the view that the Urban Areas and Cities Bill should have been passed together with the Devolved Government Bill. It was, however, decided by other stakeholders that the urgent bills were those that bore the constitutional timeline of one year. We are of the view that this was a serious oversight as the Devolved Government Bill contains provisions on the Speaker of a county Assembly which under Article 178 of the Constitution require to be provided for in legislation within one year. Our recommendation, therefore, is that the CIC and the office of the Attorney General should act with haste to have the Devolved Government Bill passed in order to address this anomaly. It is our view, also, that given the urgency of managing the transition issues, the rest of the draft bills including the Transition and the Intergovernmental Fiscal Relations Bills (in the event that the latter shall be a stand-alone statute) should be addressed as a matter of urgency. 5. On 15th August 2011, a policy decision was taken that the Public Finance Management and the County Governments Financial Management Bills be merged. The TFDG had prepared and submitted two bills relating to finance matters; namely, the County Governments Financial Management Bill and
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the Intergovernmental Fiscal Relations Bill. It appears that this merger decision did not affect the Intergovernmental Fiscal Relations Bill which should therefore stand alone as a separate bill. The view of the TFDG was that the merging process should have involved both the TFDG and the Treasury. Regrettably, substantive involvement of the TFDG in this regard has not been achieved. The current status is also unclear. We urge that the matter be resolved urgently in order to provide a suitable legal and institutional framework required to inform the work of the CRA.
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Annexes
Annex 1: County Consultations Questions
Issue 1: Cooperative Government, Inter-Governmental Relations and Levels of Governance
1.
2.
3.
4. 5. 6. 7. 8. 9. 1.
What actions are needed to facilitate cooperation and consultation between County governments and between county governments and the National Government? What actions are needed to facilitate the undertaking of joint functions between county governments and between county governments and the National Government? How should the County government cooperate with National Government Ministries, Parliament, the Judiciary, and the Commission for Revenue Allocation and other Constitutional Commissions? What actions are needed to facilitate linkages and consultation between a county government and its Senator? What considerations should be taken into account in establishing cities and urban areas in counties? How should cities and urban centres be governed? How will cities, urban areas and municipalities relate with county and national governments? What other decentralized units will be necessary in county governments and why? How should conflicts between County governments be addressed?
Issue 2: Functions of and Service Delivery by County Governments
What conditions must be in place in a county before a function is transferred to it? 2. How should these functions be exercised and services provided by the county governments and by whom? 3. What are the key factors that should be considered in planning within counties? 4. How should the county public service be structured, staffed and managed? 5. What type of capacity and skills will be required for effective service delivery at the county government level?
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6. How do you want national government functions exercised and services provided at county level? 7. What do you think should be the role of the Provincial Administration in the counties? 8. How would you like the provincial administration to be restructured to play its roles? 9. How should organisations providing cross-border services (for example water services boards) be managed? 10. How should a county government manage services being implemented on its behalf by quasi-government bodies or lower county structures? 11. When should functions of the national government be transferred to county government and vice versa?
Issue 3: Financial Resources and Management in County Governments
1. 2.
3.
4. 5. 6. 7. 8. 9. 10.
What should be the basis for any allocation of funds and grants to county governments? How should conditional and unconditional grants be applied to promote the objects of public finance and achieve the goals of national development? How should current devolved funds (such as CDF, LATF, Road Maintenance Levy Fund (RMLF), Youth Enterprise Fund, Women Enterprise Fund, Bursary Funds, etc.) be managed in the context of County Governments? What criteria should be used to allocate the resources from the Equalization Fund within a county? What controls and safeguards should be put in place to prevent misuse and inappropriate application of funds at the county level? What other taxes should a county government be allowed to raise? What should be the criteria and requirements for the approval of loans and loan guarantees to county governments? What sanctions should be applied to county governments for abuse and/or default in the repayment of loans? Under what conditions/circumstances can national government intervene? What procedures and practices should county governments apply to ensure sound budgeting and financial management?
Issue 4: Political Governance, Leadership, Accountability and Integrity in County Governments
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1.
2. 3. 4. 5. 6. 7.
8. 9.
Issue 5:
What should be the qualifications, leadership qualities, and experience of the Governor, Senator, County Assembly Members and County Executive Members? What should be the procedures for appointment and approval and removal of the county executive committee? What should be the procedure for election of the County Speaker? What kind of electoral processes will enhance political competition and choice at county level? What should be the size and population of each ward in a county? What should be the procedures for developing party lists for proportional representation? How should the performance of the Governor, Deputy Governor, Senator, Assembly Speaker, Assembly Members, and Executive Committee be assessed and enforced? How should a county be governed during suspension of the county government by the national government? What transition procedures and institutions, if any, should there be to ensure continuity of county government?
Public Participation and Oversight and Protection of Minorities and Marginalized Groups.
1.
What criteria should be used to determine minorities and marginalized communities in counties? 2. How can minorities and marginalized groups in counties be protected? 3. What procedures should be put in place to ensure public participation and influence in county governments affairs? 4. What kind of oversight measures and checks should the public have to ensure performance and accountability by the county government? 5. What information and communication methods are required for the public to effectively participate in devolved governance? 6. How should members of the public receive feedback from the county governments? 7. How can Information Communication Technology (ICT) be utilized to promote good governance and accountability in counties?
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Annex 2: Schedule of County Visits of 20th February to 16th March 2011

COUNTY Taita Taveta County Taveta Taita Taveta County Wundanyi/Mwatate Kwale County Kinango Kwale County Matuga/Msambweni Mombasa County Likoni/Kisauni/Mvita Changamwe Kilifi County Kaloleni/Ganze Kilifi County Bahari Kilifi County Malindi/Magarini Tana River County Garsen, Hola Tana River Garissa County Dujis/Fafi/Lagdera Ijara Wajir County Wajir West & North Habaswein in Wajir South Wajir County Wajir East Mandera County Mandera Mandera Town Hall 23rd March 2011 Wajir County Hall 8th March 2011 Giriftu Pastoral Training Centre. Habasein , DCs office 7th March 2011 Garissa County Hall Ijara Woman Kind 4th March 2011 4th March 2011 Garsen- Methodist Guest House Hola-Tana River County Hall 3rd March 2011 Malindi County Hall 2nd March 2011 Kilifi County Hall 1st March 2011 Kaloleni Social Hall 28th February 2011 Aga Khan Jubilee Hall 25th February 2011 Kwale County Hall 24th February 2011 Kinango Youth Centre 23rd February 2011 Voi Town Hall 22nd February 2011 Lutheran Taveta Hall/ Challa Hotel 21st February 2011 VENUE DATE CLUSTER 1: COAST AND NORTH EASTERN PROVINCES
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COUNTY Lamu County Lamu East
VENUE
DATE
Faza Social Hall Lamu County Hall
9th March 2011 10th March 2011 15th March 2011
Lamu West Nairobi County
Green View Hotel-Mpeketoni St. Benedict Kasarani
CLUSTER 2: EASTERN AND CENTRAL PROVINCES Marsabit County Moyale Marsabit Isiolo County Gabartulla Isiolo Laikipia County Nanyuki Meru County Maua Meru Tharaka Nithi County Marimanti Chogoria Chuka Nyandarua County OlKalou Ndaragwa Laikipia County Nyahururu Nyeri County Nyeri Othaya Nairobi County Embu County Embu Siakago Embu- Town Hall Siakago Catholic Hall 21st February 2011 22nd February 2011 Nyeri Municipal Chambers CDF Hall Othaya Mbotela Social Hall 8th March 2011 9th March 2011 15th March 2011 Nyandarua County Hall 7th March 2011 OlKalou Town Hall Ndaragwa DCs office 4th March 2011 5th 6th March 2011 Tharaka CDF Hall Chogoria Town Hall Chuka Town Hall 1st March 2011 2nd March 2011 3rd March 2011 Maua Youth Polytechnic Meru County Hall 26th -27th February 2011 28th February 2011 Nanyuki Town Hall 25th February 2011 Garbatulla Social Hall Isiolo Police Mess 23rd February 2011 24th February 2011 Moyale County Hall Marsabit- St. Stephen ACK 21st February 2011 22nd February 2011
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COUNTY Kirinyaga County Kerugoya, Wanguru Baricho
VENUE
DATE
Kerugoya County Hall Wanguru Sec School Baricho Secondary School
23rd February 2011 24th February 2011 25th February 2011
Muranga County Muranga, Maragua Kiambu County Thika Kiambu Kitui County Mwingi Kitui Mutomo Makueni County Sultan Hamud Wote Machakos County Matuu Machakos Nairobi County CLUSTER 3: RIFT VALLEY PROVINCE Kajiado County Loitoktok Loitoktok DCs Office ( B) Kajiado County Hall (A) Namanga Narok County Narok Bomet County Bomet Kilgoris Bomet County Hall (A) Kilgoris Town Hall (B) 24th February 2011 Narok Town Council (A&B) 23rd February 2011 DCs office (A & B) 22nd February 2011 21st February 2011 Matuu Town Hall Machakos Town Hall DOs office Kibera 9th March 2011 10th March 2011 15th March 2011 Kasikeu Secondary School- Kilungu Makueni County Hall 8th March 2011 7th March 2011 Mwingi County Hall Kitui Multi-Purpose hall Mutumo Catholic Church 3rd March 2011 4th March 2011 5th 6th March 2011 Thika Municipal Hall Kiambu County Hall 1st March 2011 2nd March 2011 Muranga County Hall Muranga Teachers College 26th -27th February 2011 28th February 2011
325
COUNTY Kericho County Kericho/Londiani
VENUE
DATE
Kericho Teachers College (A&B) Bureti County Council Hall (A&B)
25th February 2011 28th February 2011
Litein Nandi County Kapsabet Burnt Forest Uasin Gishu County Eldoret Elgeyo Marakwet County Iten Kapsowar Trans Nzoia County Kitale Kachibora West Pokot County Kapenguria Sigor Turkana County Lodwar Lokichogio Samburu County Maralal Baragoi Baringo County Karbarnet Marigat Nairobi County Busia County Busia Port Florence
Kapsabet Town Hall (A&B) Burnt Forest-Amcent Secondary School (A & B)
1st March 2011 2nd March 2011
Eldoret Town Hall (A&B)
3rd March 2011
Iten-Keiyo County Hall (B) Kapsowar Marakwet County Council Hall (A)
4th March 2011
Nzoia County Council Hall (B) Kachibora -DCs Office (A)
7th March 2011
Kapenguria- Mtero Hall (A) Pokot County Council Hall (B)
8th March 2011
Lodwar County Hall (B) County Council UNICEF Hall (A)
9th March 2011
Maralal Samburu County Hall Baragoi- CCF Hall
10th March 2011
Karbanet County Hall (A) Eldama Ravine- Town Hall (B) Charter Hall
11th March 2011 15th March 2011
CLUSTER 4: WESTERN AND NYANZA PROVINCES
Busia County Hall Port Victoria Centre
21st February 2011
326
COUNTY Bungoma County Bungoma Kapsokwony Kakamega County Kakamega Mumias
VENUE
DATE
Bungoma County Hall Kapsokwony County Hall
22nd February 2011
Kakamega Municipal Social Hall Mumias ACK Mumias Hall
23rd February 2011
Kakamega County Lugari Tack Hall Min of EducationLumakanda. Bungoma County Webuye Vihiga County Mbale Luanda Avugwi Social Hall County Council. Busagame Secondary School Siaya County Siaya Ugunja Kisumu County Kisumu Siaya County Bondo Rarienda Kisumu County Awasi Kombewa Awasi Nyando Catholic Church Kombewa DOs office 3rd March 2011 Bondo County Hall Rarienda DCs Office 2nd March 2011 Kisumu Social Hall 1st March 2011 Siaya County Hall Ugunja Town Hall 28th February 2011 25th February 2011 Webuye Municipal Hall 24th February 2011 24th February 2011
327
COUNTY Homa Bay County Homabay Oyugis Homa Bay County Mbita Magunga Migori County Migori Kehancha
VENUE
DATE
Homa Bay County Hall Oyugis Town Hall
4th March 2011
Mbita Town Hall Magunga DCs office
7th March 2011
Migori County Council Hall Kehancha MultiPurpose Hall
8th March 2011
Kisii County Kisii & Keroka Ogembo & Nyamambe Nyamira County Nyamira Nyansiongo Nakuru County Nakuru Nakuru County Naivasha Naivasha- CPK Hall 15th March 2011 Nakuru Municipal Hall 14th March 2011 Nyamira County Hall Nyansiongo Town Hall 11th March 2011 Gusii County Council Hall Gucha County Hall 10th March 2011 9th March 2011
328
Annex 3:
International and Other Treaties and Conventions Relevant to Devolution
329
Annex 4: Classification of Urban Areas and Cities by Services Delivered

In classifying an area as a city, municipality or town, regard shall be had to the ability to provide the following services:
330
331
332
Municipality - (Population between 75,000 to 249,999) Town - (Population at least 10,000 to 74,999) Final Report of the Taskforce on Devolved Government Planning and Development Control Traffic Control and Parking Water and Sanitation Street Lighting Outdoor Advertising Cemeteries and Crematoria Public Transport Libraries Storm Drainage Ambulance Services Heath Facilities Fire Fighting and Disaster Management Control of Drugs Sports and Cultural Activities Electricity and Gas Reticulation Abattoirs Refuse Collection Solid waste management Air Pollution Child Care Facilities Pre-Primary Education Local Distributor Roads Conference Facilities Community Centres Hotel Homestays Guest Houses County Hospital Constituent University Campuses Polytechnic Training Institution National School Street Lighting Cemeteries and Crematoria Libraries Heath Facilities Sports and Cultural Activities Abattoirs Refuse Collection Solid waste management Air Pollution Child Care Facilities Pre-Primary Education Community Centres Guest Houses Homestays Polytechnic Training Institution County School Airstrip Unclassified roads Museum Historical Monument Postal services Regional Radio Station Community Radio Funeral Parlour Cemetery Recreational Parks Management of Markets Marine Waterfront Animal control and welfare Religious Institution
City (Population at least 250,000)
Planning and Development Control Traffic Control and Parking Water and Sanitation Street Lighting Outdoor Advertising Cemeteries and Crematoria Public Transport Libraries Storm Drainage Ambulance Services Heath Facilities Fire Fighting and Disaster Management Control of Drugs Sports and Cultural Activities Electricity and Gas Reticulation Abattoirs Refuse Collection Solid Waste Management Air Pollution Child Care Facilities Pre-Primary Education Local Distributor Roads Conference Facilities Community Centres Five Star Hotels Guest Houses National Hospital Referral hospital County Hospital University Constituent University Campuses Polytechnic Training Institution National School
County School Stadium National Stadium International Airport Airport Airstrip National Theatre Theatre Library Service Administrative Seat Financial Hub Diplomatic Hub Consulate Museum Historical Monument Volume I: A Report on the Implementation of Devolved Government in Kenya
County School Municipal Stadium Stadium Airport Airstrip National Theatre Theatre Library Service Administrative Seat Financial Hub Museum Historical Monument Fire Station Emergency Preparedness Postal services
333
Annex 5:
Criteria for Assigning Activities and Competencies
1. Need for speedy decisions or coordination Where a quick decision is needed, and particularly if there are cross-sectoral implications, decisions should take place where the physical activity is located. This particularly applies to investment approvals and development planning. 2. Need for managing wide intense stakeholder communication and involvement Many issues of conflict revolve around the use of common resources or at least localized resources. Functions that involve intensive interaction with stakeholders are likely to be better managed at local levels 3. Need for cross-sectoral integration There is a view that cross-sectoral integration is especially important for services that involve interaction with local populations 4. Accountability to the peoples representatives Accountability is seen as leading to a responsive government that caters to constituents preferences and needs. This depends on whether local governments are appropriately representative and have appropriate control over staff and finances to allow them to adequately regulate the function. 5. Fit or link to other functions There are some functions that are closely associated, for example, building, maintaining and operating infrastructure. Unless there are good reasons to split, these should be kept together. 6. Cost effectiveness (economies of scale) Larger scale can produce significant efficiencies in relation to some functions, e.g. water and sewerage. However, separate of provision and production functions can also allow smaller jurisdictions to benefit by using efficient producers operating on a larger scale.
334

Final Report of The Task Force On Devolved Government

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Final Report of The Task Force On Devolved Government

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REPUBLIC OF KENYA

Office of the Deputy Prime Minister and Ministry of Local Government

Final Report of the Taskforce on Devolved Government

Volume I: A Report on the Implementation of Devolved Government in Kenya

Final Report of the Taskforce on Devolved Government

The Constitution is the expression of the will of the people

Volume I: A Report on the Implementation of Devolved Government in Kenya

Signature Page for the Task Force on Devolved Government

Final Report of the Taskforce on Devolved Government

Member Member Member Member Member

__________________________ _________________________ _________________________ __________________________

Volume I: A Report on the Implementation of Devolved Government in Kenya

Final Report of the Taskforce on Devolved Government

Context and Constitutional Foundations of Devolved Government in Kenya 10

The Promise of Developmental Devolved Government ......................... 26

Units and Governance of Devolved Government .....................................33

Volume I: A Report on the Implementation of Devolved Government in Kenya

Structures and Institutions of Devolved Governance ............................. 62

Functional Assignment for Effective Public Service Delivery in Kenya 109

Final Report of the Taskforce on Devolved Government

Integrated Development Planning in Devolved Governments .............146

Intergovernmental Relations and Conflict Resolution ..........................154

Intervention and Suspension ..................................................................169

Citizen Participation, Protection of Minorities and Marginalised Groups175

Public Communication and Civic Education in Devolved Governance ..210

Building an Effective and Capable Public service .................................. 234

County Governments Financial Resources and their Management .... 249

Volume I: A Report on the Implementation of Devolved Government in Kenya

The Implementation Framework for Transition to County Governments305

Annexes ..................................................................................................... 316

Final Report of the Taskforce on Devolved Government

Volume I: A Report on the Implementation of Devolved Government in Kenya

Final Report of the Taskforce on Devolved Government

UN-HABITAT United Nations Agency for Human Settlements

Volume I: A Report on the Implementation of Devolved Government in Kenya

Task Force Mandate, Terms of Reference and their Interpretation

Mandate of the Task Force

Final Report of the Taskforce on Devolved Government

Terms of Reference and their Interpretation

Volume I: A Report on the Implementation of Devolved Government in Kenya

Interpretation of the Task Force Mandate

Final Report of the Taskforce on Devolved Government

Approach to and Scope of the Assignment

Volume I: A Report on the Implementation of Devolved Government in Kenya

Table 1.1: Summary of the Thematic Areas

Final Report of the Taskforce on Devolved Government

Volume I: A Report on the Implementation of Devolved Government in Kenya

Work Programme (WP) No Work Programme 6 Work Programme 7

Work Programme (WP) Description

Drafting Instructions Draft Bills

Challenges in Implementation of the Assignment

Final Report of the Taskforce on Devolved Government

Organization of the Report

Volume I: A Report on the Implementation of Devolved Government in Kenya

Final Report of the Taskforce on Devolved Government

Context and Constitutional Foundations of Devolved Government in Kenya

Volume I: A Report on the Implementation of Devolved Government in Kenya

The Centralized Colonial State

Final Report of the Taskforce on Devolved Government

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