DEVOLUTION IN KENYA: REALITY AND APPLICATION PRESENTATION BY Mutakha Kangu Chairman of the Task Force

Introduction One of the most transformative aspects of the constitution which the Kenyan people adopted last year is devolution of political power, responsibilities and resources. The Deputy Prime Minister and Minister for Local Government in his immense wisdom recognized the importance of devolution and established a Task Force to provide a policy and legislative framework for implementation of devolution.

Organization of the Interim Report

CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT This chapter looks in to the history of Kenya to establish the reasons why Kenyans fought for a new constitution in general and devolution in particular. It traces the centralized system of government to the colonial days when it was established to serve the interests of a few colonialists. This is followed by a discussion of the post-independence Quasi-Federal system which was expected to deconstruct the colonial centralized state.

The chapter then notes that this was not done The chapter then notes that this was not done. Instead, the independence government embarked on recentralization of the state thereby reintroducing the problems of centralization which the chapter identifies. It is then noted that devolution has been introduced as a solution and alternative to the under development problems of our country. Devolution is therefore presented as a promise for development hence the concept of developmental devolved government.

The chapter then identifies the building blocks of developmental devolved government as being the growing and sustaining county cooperation and competitiveness; county public service delivery; building and maintaining quality places; and the managing counties for prosperity.

CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA This chapter looks at the following issues: The Concept of a constitution The concept and theory of devolution The concept of shared institutions The form of devolution The objects of devolution The architecture and design of devolution The value foundations of devolution.

LEVELS AND UNITS OF GOVERNANCE This chapter deals with two issues; levels of governance and units of governance The general principles on levels of government Levels of government under the constitution 2010 Further decentralization under article 176 Cities and urban areas under article 184 Policy recommendations

The general principles of creation of units of governance Units of governance under the constitution 2010. The challenges of working with the 47 counties. Challenges of capacity building. Challenges of economies of scale. Challenges cross county planning and development. Cooperative government as a solution.

STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNMENT The qualifications and elections of County Assembly Members. Composition and structure of the county executive. Elections of the governor and Deputy Governor. Three options proposed. Appointments of the County Executive. Qualifications of the county executive members.

Administrative structures for devolved government. National administration at the county level. Proposed structures of national administration. Three options are proposed: Option 1-the national administration exists side by side with county administration. It has three levels; county, district and chief’s level. Option 2-the national administration exists side by side with the county administration. But it has only two levels at the county and district. The chief becomes a county administrator.

Option 3-the national government has no administration at the county level. Instead, it is represented in the counties by technical officers and heads of the technical units working and coordinating with their equivalents in the county departments. This option effectively abolishes the concept of provincial administration. Security management in the counties. County governments must be involved in security matters in the county. The National Police Service Bill provides for a County Policing Authority chaired by the Governor to advise on security issues in the county.

FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE DELIVERY General principles of functional and competency assignment. A number are identified: The principle of subsidiarity. The principle of transferability of functions. Policy formulation, regulation, standards vis-à-vis implementation functions. Foreign affairs, defence and macroeconomic policy vis-à-vis social functions.

The principle of categorization of functions into exclusive, concurrent and residual. Assignment of functions under the constitution (article 186 and schedule four). Principles and criteria for unbundling functions and competencies. Organizational options for effective service delivery. A Devolution Bill to incorporate matters of transfer of functions

INTERGRATED DEVELOPMENT PLANNING Integrated development planning is key to enhancing the efficiency and effectiveness of public policy. It is a process through which devolved governments can establish a development plan for the short, medium and long-term. Concerns of integrated development planning should be the challenge of wealth creation within the limited resources available.

There will be need for legal and institutional mechanisms to foster and guide the progressive realization of a society led by planning. These will include A County Development Planning & Facilitation Bill, 2011, incorporating a County Spatial Plan, a County Institutional Plan, a County Human Resources Plan and a County Performance Management Framework. There will be need to harmonise and coordinate sectoral, national, localised as well as term planning.

INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION Intergovernmental relations is necessitated by the concept of National and County Governments being distinct and yet interdependent levels; the principle of cooperative government; and the concept of shared governance through concurrent functions. Intergovernmental relations are institutional mechanisms for bilateral and multilateral interaction within and between levels of government for co-ordination of government policies and functions. They reduce incidents of conflict and facilitate resolution of disputes that may occur

There will be need for both vertical and horizontal intergovernmental relations. Constitutional solutions to the challenges of intergovernmental relations are incorporated in the concept of cooperative government under articles 6 and 189. Mechanisms of co-ordination and co-operation include joint committees and joint authorities. Dispute resolution and intervention and suspension of county governments.

Citizen Participation and Protection of Marginalised Groups Citizen participation is meant to increase democracy and good governance, citizen empowerment and operational modalities of citizen involvement in public affairs. The basic elements of Citizen Participation identified as Citizen Participation as a Right; Public Participation as a Function of Transparency in Democratic Governance; Citizen Participation as Meaningful Dialogue; and Citizen Participation as a Condition for Accountability.

Protection of marginalized groups through participation and the affirmative action. A Minorities and Marginalized Communities Act is proposed. There will also be need to examine the Persons with Disability Act of 2003, and international conventions ratified by Kenya to align them with the constitution. However, participation and protection of marginalized groups ought to be main-streamed in all other aspects of the running of our affairs of state.

Communication and Civic Education This chapter covers the centrality of communication to the promotion of good governance and citizens’ participation. Communication is critical in the analysis, interpretation, rationalisation and demystification of various development agendas at both national and county levels. This chapter also covers Civic education on devolution .

It is therefore proposed that the transition roadmap must include civic education for the people of Kenya to understand, embrace, and support, promote, and protect the gains of devolution.

Building a Competent and Capable Public Service The public service both at the national and county levels is expected to contribute to the achievement of economic, social and political aspirations. Indeed, it is argued that the success of county governments will depend on there establishing effective public service systems and attracting competent personnel. Staffing of county governments under article 235

Transition challenges. Staff audits, re-organization and deployment. Harmonization of terms and conditions of service. Protection of accrued pensions and other benefits. Principles of staff recruitment and promotion. Facilities and mechanisms for training and capacity building.

Financial Resources and Management The chapter begins with addressing the issues of the conceptual framework for fiscal decentralisation with emphasis on the principle of funds must follow and match functions. County revenues identified as comprising inter-governmental transfers; county own revenues; grants and donations and borrowing both internally and externally.

Proposals are made for an Intergovernmental Fiscal Relations Act to deal with processes of and institutions for vertical and horizontal division of revenue. Similarly, there is a proposal for the establishment of an Intergovernmental Loans and Grants Council as institutional framework for co-ordination of borrowing and grants. The subject of public debt management is also addressed. A proposal for a re-constituted Kenya Revenue Authority as a shared institution for collection of revenue on behalf of both national and county governments.

The chapter also addresses the questions of budget planning and expenditure controls including procurement/supply chain management. The role of the controller of budget, accounting officer, internal audit and oversight by the County Assembly are considered. Financial reporting and the role of the Auditor general are covered. Proposals are made for A county Government Financial management Act to deal with all these matters are made.

The chapter also deals with the issue of financing county infrastructure and investment. The keys issues are the role of Counties in infrastructure development and delivery; infrastructure gaps and equitable development in counties; efficiency, sufficiency and optimization of county infrastructure; and approaches for the development and financing of county infrastructure. A county Governments Bank and Loans Authority is proposed.

The chapter ends with a discussion of institutional and transitional issues such as framework for the audit and re-allocation of existing infrastructure assets; and audit and liquidation of existing public debt.

The Transition Road Map The chapter has conceptualized the transition road map in three phases ; Pre-august 14th 2012 phase Day after August 14th 2012 Post August 14th 2015

These phases relate to key issues of finance, human resources, office facilities, land and other assets, liabilities and civic education. 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. Service delivery; how continuation of delivery of services at both the national and county governments will be guaranteed in the transition period.

Assets and liabilities; how existing assets and liabilities will be apportioned and managed. Capacity building framework; how capacities from the perspectives of human and physical infrastructure will be undertaken to ensure that county governments take off smoothly. Ongoing reform processes; how the various ongoing reform processes at both the current central and local government levels will be transited into the new dispensation. Communication; how information accruing from and relating to the transition process will be generated, owned, managed and disseminated.

It is proposed that a Devolved Government Transition Act be enacted to address all this matters. It is further proposed that this law should establish a Devolved Government Transitional Authority as institutional framework for handling all these transition matters.

LIST OF SOME OF THE PROPOSED LEGISLATIONS Devolution Bill, 2011 Transition Bill, 2011 Transfer of Assets & Liabilities Bill, 2011 Devolved Government Elections Bill, 2011 County Public Financial Management Bill, 2011 Intergovernmental Fiscal Relations Bill Intergovernmental Relations Bill, 2011

Development Facilitation Bill, 2011 County Public Service Bill, 2011 County Leadership, Ethics and Integrity Bill, 2011 County Systems Bill, 2011 County Government Structures Bill, 2011 Minorities and Marginalised Groups Bill, 2011

NEXT STEPS FOR THE TASK FORCE Post-Interim Report validation through consultations with stakeholders. Drafting of proposed Bills. Benchmarking International Symposium Final Report