Framework For Devolution in Ke

THE LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA
BY
AYUO DAVID OCHIENG
(LLB/180/10)
A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF

THE REQUIREMENTS FOR THE DEGREE OF BACHELOR OF
LAWS (LL.B) OF MOI UNIVERSITY.
SCHOOL OF LAW
MOI UNIVERISTY, ELDORET
APRIL 2014
ii
DECLARATION
The undersigned hereby solemnly declares this work the product of his original research,
and that it complies with Moi University requirements for FLB 400 examination for
which it is presented. The same has never been presented in any other academic
institution for the award of any degree, diploma, certificate or any other academic award
or published. Where any other author’s work is quoted, due recognition is given to the
original author.
AYUO DAVID OCHIENG ……………….. Date: ....................
LLB/180/10 SIGNATURE
Accordingly, this work has been presented to the undersigned supervisor and has been
duly approved.
SUPERVISOR SIGNATURE Date....................
PROF. SIFUNA ………………..

iii
DEDICATION
In memory of W. Ayuo Odembo and Margaret Ayuo, who filled our lives with love.
iv
ACKNOWLEDGEMENT
The germ of this research paper was planted during the Constitutional Law classes by Dr.
Mutakha Kangu. His lectures on Devolution made me develop and interest to do further
work on devolution.
In writing this paper, my undertaking was made simple by the support I received. I
therefore thank the Almighty God for providing me with sound health of body and mind
throughout this work. I also extend my gratitude to my supervisor Professor Sifuna for
his guidance, inspiration and the profound help he accorded me.
Appreciate Moi University’s administration for creating a peaceful environment for

studies and research. The School of Law Library staffs were always ready to offer their
assistance and making available the materials I required. Thank you very much.
Next, I thank my late father William Ayuo Odembo who made it possible for my
admission to study law at Moi University. May your soul rest in peace. I also thank my
brother George O. Ayuo for the encouragement and financial support. I am very grateful.
Finally, I appreciate the best wishes I received from my family and friends. May God
bless you all.
v
TABLE OF CONTENTS
DECLARATION ................................................................................................................ ii
DEDICATION ................................................................................................................... iii
ACKNOWLEDGEMENT ................................................................................................. iv
PREFACE ......................................................................................................................... vii
LIST OF ABBREVIATIONS ............................................................................................ ix
TABLE OF STATUTES......................................................................................................x
CHAPTER ONE ..................................................................................................................1
INTRODUCTION ...............................................................................................................1
1.1 Historical Background of Devolution ........................................................................3
1.2 Definition of Concepts ...............................................................................................7
1.2.1 The Concept and Theory of Decentralization .....................................................7
1.2.2 The Concept and Theory of Devolution ...........................................................10
1.4 Conclusion............................................................................................................... 14
CHAPTER TWO ...............................................................................................................16
DEVOLUTION UNDER 2010 CONSTITUTION ...........................................................16
2.1 Introduction ..............................................................................................................16
2.3 The Devolved Government Statutes ........................................................................22
2.3.1 The County Government Act, 2012 ..................................................................23
2.3.2 The Intergovernmental Relations Act, 2012 .....................................................27
2.3.3 Public Finance Management Act, 2012 ............................................................30
2.3.4 The Transition to Devolved Government Act ..................................................39
2.4 The Citizens’ Participation in Devolved Government .............................................41
2.4.1 The Constitutional Provisions for Participation ................................................44
2.4.2 The Public Participation in County Financial Management .............................44
2.5 Challenges Facing Devolution in Kenya ..................................................................45
2.6 Conclusion................................................................................................................46
CHAPTER THREE ...........................................................................................................48
A COMPARATIVE ANALYSIS OF DECENTRALIZATION IN KENYA VIS A VIS
OTHER JURISDICTIONS ................................................................................................48
3.1 Introduction ..............................................................................................................48
vi
3.2 Decentralization in Uganda ......................................................................................50

3.2.1 Background Analysis ........................................................................................50
3.2.2 The Legal Framework for Decentralization in Uganda ....................................50
3.2.3 The Challenges Facing Decentralization in Uganda .........................................53
3.3 Decentralization in South Africa ..............................................................................54
3.3.1 Introduction .......................................................................................................54
3.3.2 The Justification of Devolution in South Africa ...............................................56
3.3.3 The Nature of Devolved Units ..........................................................................57
3.3.4 The Structure of Devolved Units ......................................................................59
3.3.5 The Powers and Service Delivery of Devolved Units ......................................60
3.3.6 The Fiscal Allocation in the Devolved Units ....................................................62
3.3.7 Transition to the Devolved System ...................................................................63
3.4 Conclusion................................................................................................................66
CHAPTER FOUR ..............................................................................................................67
CONCLUSION AND RECOMMENDATIONS ..............................................................67
4.1 Conclusion................................................................................................................67
4.2 Recommendations ....................................................................................................72
4.2.1 Implementation of the Constitutional Provisions on Devolution .....................72
4.2.2 Entrenched Involvement in County Strategic Plans .........................................75
4.2.3 Participation in Governance and Public Service ...............................................77
4.2.4 Legislative Proposals ........................................................................................77
BIBLIOGRAPHY ..............................................................................................................79
vii
PREFACE
Devolution as a new phenomenon was introduced by the Constitution of Kenya, 2010. It

has been noted to be one of the most transformative aspects of the Constitution. It has
also been highlighted as the one area which requires caution in implementation.
Devolution, therefore, is the most talked concept in Kenya today. However, there exist a
lot of misconceptions about devolution as envisaged in the Constitution of Kenya, 2010.
In the recent past, Kenyans have witnessed a war between the senators and the governors
as well as the Senate and the National Assembly. In addition, the members of County
Assemblies have threatened the governors to abide by their angry demands or else they
face impeachment or make it hard for them to carry out the duties.
In light of the foregoing, it is clear that the leaders or those who are entrusted with the
mandate of implementing devolution as per the constitution have failed to fully conceive
and comprehend the concept of devolution. It is for this reason that this paper has
dedicated chapter one to define devolution as a concept. It has further analyzed various
forms of decentralization. In addition, a historical background of Kenya’s quest for
devolution has been explained in great detail.
In implementing devolution, the stakeholders concerned must go back to the constitution.

As a result, chapter two of this paper has given in great detail an explanation of
devolution as outlined in the Constitution of Kenya, 2010. It is evident that there exist
numerous articles that talk about devolution as well as Chapter Eleven of the constitution
that is dedicated to it. The constitution gave room for the Parliament to enact legislations
to facilitate the implementation of devolution. These legislations have since been enacted.
They have been discussed in depth in chapter two.
A discussion on devolution would have note been complete without lessons from other
jurisdictions. As such, this paper had done a comparative study, comparing Kenya to
Uganda and South Africa in chapter three. Indeed, several lessons have been learnt that
the stakeholders should take note of in implementing devolution. Finally, a detailed
conclusion and recommendation has been given in chapter four.
viii
This paper has sought to change the general attitude of Kenyans towards devolution.
Since Kenyans have been subjected to a centralized system of governance for almost
five decades, they need to be well oriented to devolved system of governance. This paper
will therefore help Kenyans to begin to appreciate the benefits that come with devolution.
In addition, this work is intended to make the devolved system easy to understand and to
avoid confusion which normally comes with very many interpretations from equally very
many sources.
ix
LIST OF ABBREVIATIONS
ANC- African National Congress
CEDA- Convention on the Elimination of All Forms of Discrimination
KADU- Kenya African Democratic Union
KANU- Kenya African National Union
KNCHR- Kenya National Commission on Human Rights
NP- National Party
TEDS- Transition Education on the Devolved System
UN- United Nations
UNDP- United Nations Development Program

x
TABLE OF STATUTES
Public Finance Management Act, 2012
The County Government Act, 2012
The Constitution of Kenya, 2010
The Constitution of South Africa, 1996
The Constitution of Uganda, 1995,
The Intergovernmental Relations Act, 2012
The United States Constitution, 1787.
Transition to Devolved Government Act, 2012

1
CHAPTER ONE
INTRODUCTION
The turmoil in Kenya’s economy coincides with implementing the constitutional
blueprint for a new political and administrative architecture; arguably the most
momentous and far-reaching reforms in Kenya’s post independence history. At the heart
of this transformation are the devolution of power to county governments and the design
of arrangements that will turn the constitutional vision into a reality. Kenyans bring to
this process a tremendous enthusiasm and energy, but the devil lies in the detail. The
design of fiscal, accountability, public service and transition arrangements will determine
whether Kenya can weather the economic storm in a way that enhances social equity,
service delivery, citizen engagement, and so deliver on Kenyans’ expectations of
constitutional transformation.
It is a fact, however, that Kenya is the envy of most states in Africa. It is a rising state in
the Eastern part of Africa. Presently, Kenya is rising from the effects of the 2007/2008
post election violence to a country of full expectation, prospect and opportunity both
nationally and regionally. With the rapid reforms taking place, it is proper to revive the
strengths of the past to redesign the institutions that are to play a vital part in realizing the
country’s development agenda. One of these institutions and which forms the integral
part of this work is the county governance and decentralization.

2
It is now a common knowledge that in order to cure the biggest problem of the
contemporary world which is governance1, it is believed that decentralization is seen as a
very important concept for development, which is why plenty developing countries opt
for it, of which Kenya is no option. In that connection, John-Mary Kauzya2 had the
following to say:
Decentralized governance is increasingly being favored by many African

countries as the most suitable mode of governance through which poverty
reduction interventions can be conceived, planned, implemented,
monitored and evaluated. Many hope that the process of decentralization
will facilitate greater participation of communities in problem analysis,
project identification, planning, implementation as well as oversight which
in turn will increase ownership and the likelihood of sustainability of such
initiatives.3
The reintroduction of the devolved governance and decentralization4 by government of
Kenya in 2010 is based on democratic and development values such as empowerment,
citizens’ participation, stability, transparency and accountability. Decentralization is a
term that comprise of many concepts including devolution, delocalization, delegation and
deconcentration.5 In an attempt to have absolute and flourishing decentralization process,
policy makers therefore need to include all those ones in order to have a complete
program.
1
Mutakha Kangu, ‘Understanding Devolved Governance in the Constitution of Kenya of 2010,’ Lecture
Materials. (2011).
2
John-Mary Kauzya, ‘Political Decentralization in Africa: Experiences of Uganda, Rwanda, and South
Africa,’(2007) page 3, available at
http://www.researchgate.net/publication/228469932_Political_Decentalization_in_Africa_Experiences_of_
Uganda_Rwanda_and_South_Africa accessed on 15th November 2013
3
Supra, note 2.
4
Kenya negotiated for a devolved constitution in Lancaster in the lead up to independence which came
with devolution. There was a bicameral parliament as well as the regional governments, which had specific
role from those of the central government.
5
Supra, note 1 at page 6.
3
Consequently, political decentralization can be understood to refer to either or both of the
following: first, it refers to transferring the power of selecting political leadership and
representatives from central governments to local governments, and second, it entails
transferring the power and authority for making socio-politico-economic decisions from
central governments to local governments and communities.6
This thesis however, only focuses on the political decentralization or devolution process
in Kenya and moves forward to attempt a critical analysis on how it has been designed,
implemented and how successful it is to achieve the intended objective of the people of
Kenya.
1.1 Historical Background of Devolution
In terms of modern public administration, historically African countries have experienced
fused, personalized and at best highly centralized governance systems and practices. In
pre-colonial times kings or traditional leaders represented basically all authority. During
the colonial and immediate post-colonial periods governance was structured and
practiced in a highly centralized manner.7
However in Kenya, the Constitution promulgated in August 2010 provides for devolution
to forty seven counties, in a sense a return to the constitutional fiscal decentralization
provided for at independence in 1963. At the Lancaster House, London, constitutional
talks, the ‘small tribes’ in the Kenya African Democratic Union [KADU] party had allied
Kenya’s European settlers to successfully demand decentralized governance as a
6
Supra, note 2 at page 4.
7
Supra, note 2.
4
protection against domination by the ‘big tribes’ coalesced in the Kenya African National
Union [KANU] party.8 Thus, the independence constitution provided for a bicameral
Parliament and regional governments. By 1965, however, KADU had voluntarily
dissolved itself and enabled a constitutional change to a centralized government. Into
independence, however, it became apparent that – in the context of an exceedingly
powerful presidency steeped in the patronage politics of impunity – the sharing of the
national cake’ was increasingly inequitable, a reality which was manifest in great and
growing regional inequalities (Society for International Development, 2006). Thus, the
clamor for devolution became a central issue once the KANU government bowed to
pressure to undertake a people-driven, comprehensive review of the constitution
beginning 1999.9
The centralized or the unitary systems and structures of governance which Kenya had for
close to five decades have faced numerous criticisms. Mutakha Kangu argues that it tends
towards centralization and concentration of power in one centre of power as well as being
based on command and control mechanisms, which tend to inhibit democratic practices
and participation as well as separation of powers.10 He further notes that the effect of
constitutionalism is also said to be unduly reduced since such systems tend to detract
from some of the mechanisms of achieving constitutionalism.11 The product of two
decades of endeavor is the Constitution (2010), which provides for devolution.
8
Othieno Nyanjom, ‘Review of the Constitutional Bills in Relation to Public Financial Management,’
(2012) Kenya Civil Society Support Programme; Nairobi, Kenya
9
Supra, note 8.
10
Supra, note 1.
11
Ibid.
5
In light of the foregoing analysis, the search for inclusive, involving, and participatory
governance has taken the path of decentralization. Political and administrative reforms
have been going on in Kenya and have sought to break with the past through
decentralization of powers to lower county governments. The decentralization of power is
said to provide a double security for the rights and the welfare of the people by providing
a double mechanism for the security of values of good governance such as republicanism,
constitutionalism, democracy, separation of powers and power sharing.12
On 4th August 2010, sixty seven percent of Kenyan voters approved a new Constitution in
a constitutional referendum, and it was signed into law on 27th August 2010. The new
constitution ushered in the “Second Republic”, the manifestation of the people’s desire
for change, government accountability, and democracy. At the heart of this change is the
concept of devolution of political and economic power to forty seven newly-created
counties. On this issue, the World Bank had this to say in the manner following:
When governments devolve functions, they transfer authority for decision-

making, finance, and management to quasi-autonomous units of local
government with corporate status. Devolution usually transfers
responsibilities for services to municipalities that elect their own mayors
and councils, raise their own revenues, and have independent authority to
make investment decisions. In a devolved system, local governments have
clear and legally recognized geographical boundaries over which they
exercise authority and within which they perform public functions.13
In as much as devolution of power is an envied concept, it may however not always lead
to improved governance and economic performance. For instance, devolution may reduce
the ability of the national government to redistribute resources and therefore the ability to
assist the less developed sub-national units. In addition, devolution may lead to the
12
Supra, note 1.
13
The World Bank Group. (n.d.). Decentralization and Sub-National Regional Economics.
6
capture of local governments by the political elites, especially if devolution rules and
systems are not well designed and hence allow the local politicians to use the local
resources to consolidate their hold on to the political power through patronage.14
On contrary, scholars have advanced political and economic rationales in support of
decentralization of delivery and financing of public goods. These arguments provide the
theoretical basis for devolution and other frameworks of decentralization. Political
scientists present three major rationales for decentralization. First, they argue that
decentralization enhances democracy by bringing government closer to the citizens.
Second, by establishing different tiers of government, decentralization provides
mechanisms for protecting democracy though vertical checks and balances. Third, by
distributing authority and responsibility for fiscal management and public service
delivery, minority; are given a stake in the system and this helps in conflict
management.15
It is therefore the object of this research to look at the extent to which political
decentralization has been actualized in Kenya. As such, this work seeks to criticize the
current status and provide way forward in terms of legal reforms and the constitutional
implementation as far as political decentralization is concerned. Further, this work will
analyze the progress in the devolution process and give findings for the potential legal
enforcement to be put in place.
14
Mwenda A.K. (ed), Devolution in Kenya; Prospects, Challenges and the Future, Institute of Economic
Affairs. Nairobi, Kenya. (2010) page 9.
15
Supra, note 14, at page 10.
7
1.2 Definition of Concepts

For us to be able to properly understand and critically analyze political decentralization
and devolution process, it is therefore imperative that the concepts of devolution and
decentralization are clearly defined. It is however not easy to define decentralization but
in the most general terms it refers to the transfer of authority from a central government
to a sub-national entity.16The process of decentralization is a complex undertaking that
goes beyond this general definition. It takes on different meanings in different contexts
and according to the desires and plans of those in charge of its design and
implementation.
In light of the foregoing, it should be noted at the outset, however, that decentralization is
not so much a theory as it is a common and variable practice in most countries to achieve
primarily a diverse array of governance and public sector management reform
objectives17. In fact, a quick review of the literature shows that there is no common
definition or understanding of decentralization, although much work has gone into
exploring its differing applications. Decentralization means different things to different
people, and it is primarily a function of the application, as will be seen in the following.18
1.2.1 The Concept and Theory of Decentralization
A number of pundits and institutions have attempted to conceptualize decentralization.
One such institution is United Nations Development Program, herein after referred to as
UNDP. In their working paper, they conceive decentralization in the manner following:
16
Boko S, Decentralization and Reforms in Africa. Kluwer Academic Publishers (2002). Pg. 19
17
UNDP, Decentralization: A Sampling of Definitions,
http://web.undp.org/evaluation/documents/decentralization_working_report.PDF Accessed on 12th
November 2013.
18
Supra, note 17.
8
Decentralization, or decentralizing governance, refers to the restructuring

or reorganization of authority so that there is a system of co-responsibility
between institutions of governance at the central, regional and local levels
according to the principle of subsidiarity, thus increasing the overall
quality and effectiveness of the system of governance, while increasing
the authority and capacities of sub-national levels. Decentralization could
also be expected to contribute to key elements of good governance, such
as increasing people's opportunities for participation in economic, social
and political decisions; assisting in developing people's capacities; and
enhancing government responsiveness, transparency and accountability.19
A conceptual definition of decentralization entails an understanding of complex
dynamics. Several pundits have given a number of definitions of decentralization but a
central theme that characterizes these is the dispersion of decision making governance
closer to the people. Daniel Muia20 asserts that decentralization is one way through which
people’s right to participate in governance is attainable. He highlights further two central
definitions of decentralization to emphasize the importance of the transfer of decision
making power and management of affairs to a subordinate entity.21 First, according to
him, decentralization refers to the transfer of public authority and resources including
personnel from the national to sub-national jurisdiction. Second, he states that
decentralization is the transfer or delegation of legal or political authority to plan, make
decisions and manage public functions from central subordinate units of government,
semi-autonomous public corporations, regional development or functional authorities and
local governments and non-governmental organizations.22
There is therefore a linkage between governance and decentralization in defining the
transfer of authority, responsibility and accountability from central to local government.
19
Supra, note 17.
20
Muia M Daniel, ‘Decentralization of Governance to Districts in Kenya: A case Study’. (2008). In: Kibua
T N and Mwabu G, (ed), Decentralization and Decentralization in Kenya: New Approaches. Nairobi:
University of Nairobi Press, (2008) Chapter 4.
21
Supra, note 20.
22
Ibid.
9
There are thus three fundamental dimensions of decentralization namely administrative,
political and fiscal decentralization.23
First, administrative decentralization is the transfer of responsibility for the planning,
financing and management of certain public functions from the central government and
its agencies to field units of government agencies, subordinate units or levels of
government, semi-autonomous public authorities or corporations or regional or functional
activities. The main objective of administrative decentralization is the strengthening of
field administrative units of civil service of the country, including building efforts at the
national and local levels.24
Second, political decentralization entails a movement away from a monocentric to a
polycentric structure of political power and takes two forms, horizontal, where
institutions that promote separation of power and accountability of the executive for its
actions such as the legislature and the courts are strengthened and the vertical
decentralization, involving assigning powers to local government structures. The main
objective of political decentralization is greater citizen’s participation and higher levels of
accountability to the citizens. This leads to institutional responsiveness in service delivery
and low levels of corruption in government.25
Finally, fiscal decentralization involves the transfer of financial resources from the
central government to autonomous local agencies. It may be done directly through
assignment of tax powers to facilitate the decentralized agencies to implement their
responsibilities. Alternatively, it may be done indirectly through financial deregulation
23
Supra, note 14.
24
Ibid.
25
Supra, note 20.
10
where regulation of financial institutions is shifted away from the major capitals. It is
important to note that fiscal decentralization is rarely designed in isolation but
accompanies both administrative and political decentralization.26
1.2.2 The Concept and Theory of Devolution
According to Mutakha Kangu,27 there are two approaches to the organization of
governance and management of state power. First, the single-dimensional approach
which follows a single horizontal dimension in its organization of governance and state
power. This produces a unitary system and structure of government. It’s based on
centralization and concentration of power.28 Second, the multi-dimensional approach
which organizes and manages governance and manages state power along multiple lines.
It defines, distributes and constrains the use of state power along multiple lines. It
combines vertical and horizontal dimensions. It therefore forms foundation of federal
systems and structures of government. It is founded upon the concept of decentralization
and devolution of power.29
In light of the foregoing, a devolved system of government follows the multi-dimensional
approach to the organization and management of governance and state power. It seeks to
organize governance and manage state power both vertically and horizontally. It further
seeks to define, distribute and constrain the use of state both vertically and horizontally. It
is a system that combines self governance and shared governance. That is self governance
at the local level and shared governance at the national level. Under this system, one
26
Supra, note 14.
27
John Mutakha Kangu, Operationalization of Devolution in the constitution of Kenya, available at
http://www.strathmore.edu/pdf/mutakha-devolution-kenya.pdf accessed on 14th November 2013
28
Ibid, at page 20.
29
Supra, note 27, at page 6.
11
creates two or more levels of government that are coordinate and 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.30 In this way, the functions each performs are set out and
defined by the constitution. The resources each uses to discharge these functions are also
provided for in accordance with constitutional provisions.31
According to Article 10 of the constitution,32 which sets out the values and principles of
governance, devolution of power is identified as one such value and principle that should
guide our governance system. This means that the Kenyan people have settled for a
multi-dimensional approach to the organization and management of governance and state
power. They have chosen a devolved system of government which we must therefore
seek to clearly understand.33
Addition, Article 6(2)34 describes the governments at the two levels as being distinct and
interdependent and which should conduct their mutual relations on the basis of
consultation and cooperation. This is therefore a devolution not based on the principle of
absolute autonomy but instead, on that of inter-dependence and cooperation.35
In form therefore it is a system that combines a certain measure of autonomy and inter-
dependence. The end result of this combination is what may be called a cooperative
system of devolved government. Cooperative devolved government will require that we
move away from our usual adversarial approach to issues and embrace a system of
30
Ibid, at page 12.
31
Ibid, at page 13.
32
The Constitution of Kenya, 2010, Article 10 (2) (a).
33
Supra, note 20.
34
The Constitution of Kenya, 2010.
35
Supra, note 20.
12
consultation, negotiation and consensus building in the running of the affairs of state.36
Intergovernmental relationships between and among governments therefore, should be
based on and informed by these principles of cooperative government. The vertical
relationships between national and county governments must be on the basis of
cooperative government.37 Similarly, the horizontal relationships among various county
governments must be based on the principles of cooperative government.38
1.3 Forms of Decentralization
There are different categories or variants of decentralization based on the degree and
extent to which the decentralization goes. As Mutakha Kangu 39 notes, the distinctions
among decentralization lies on the question of degree40. In terms of these degrees and
extents therefore, scholars have identified deconcentration, delegation and devolution as
some of the variants. However, the effects of decentralization on good governance
depend to a large extent on the form and nature of the decentralization involved in the
particular country. The type of unit with which authority is shared or to which it is
transferred in the decentralization process is critical for understanding the implications
for good governance.41
In light of the foregoing, deconcentration and delegation are said to be mild forms of
decentralization which do not involve any serious and fully fledged governments at levels
36
Supra, note 20.
37
Supra, note 34, Article 6 (2).
38
Supra, note 20.
39
Supra, note 27.
40
Supra, note 27.
41
UNDP, Decentralized Governance Programme: Strengthening Capacity for People -Centered
Development, Management Development and Governance Division, Bureau for Development Policy,
September 1997, pp. 5-6
13
below the central one.42 Instead, units of administration are established by the central
government, which the central government uses to facilitate its own administration at
lower levels.43 Such units are viewed as mere agents of the central government which
takes all the decisions and has all sovereignty.44 The lower units are not autonomous co-
ordinate governments with their own sovereignty and acting upon their citizens directly
but are merely agents of the center and are subject to instructions and direction from the
center as was the case with the Kenya’s repealed constitution. On that note, UNDP in
there working paper45 had these to note on deconcentration and delegation in the manner
following:
First, deconcentration is sub-ordinate lower-level units or sub-units, such

as regional, district or local offices of the central administration or service
delivery organization. These units usually have delegated authority in
policy, financial and administrative matters without any significant
independent local inputs. This type of arrangement is most often referred
to as deconcentration and involves very limited transfer of authority. It
involves the transfer of authority for specific decision-making, financial
and management functions by administrative means to different levels
under the same jurisdictional authority of the central government. This is
the least extensive type of administrative decentralization and the most
common found in developing countries. General deconcentration occurs to
the extent that a variety of tasks are deconcentrated to a horizontally
integrated administrative system. Functional deconcentration occurs to the
extent that specific tasks are deconcentrated to the field units of a
particular ministry or agency.
Similarly, delegation is semi-autonomous lower-level units, such as urban
or regional development corporations to whom aspects of governance are
delegated through legislation or under contract. This is a fairly common
variant of decentralization that stops short of devolution, but involves
significant delegation of authorities and responsibilities. Delegation refers
to the transfer of government decision-making and administrative
authority and/or responsibility for carefully spelled out tasks to institutions
and organizations that are either under government indirect control or
42
Supra note 27.
43
Ibid.
44
Supra, note 1, page 6.
45
14
semi-independent. Most typically, delegation is by the central government

to semi-autonomous organizations not wholly controlled by the
government but legally accountable to it, such as state owned enterprises
and urban or regional development corporations.46
Mutakha Kangu concludes that deconcentration and delegation falls short of a proper
multi-dimensional organization of governance and are merely a variant of a unitary
system of governance.47
Devolution on the other hand is a more extensive form of decentralization, which
involves the creation of autonomous or semi-autonomous lower levels of governance that
are coordinate with the central one and do not take instructions from the center.48 It is
therefore clear that a devolved system of government follows the multi-dimensional
approach to the organization and management of governance and state power.
1.4 Conclusion
It is clear in this chapter that the 2010 Constitution provides for devolution to forty seven
counties, in a sense a return to the constitutional fiscal decentralization provided for at
independence in 1963.49 A proper historical account to this effect has therefore been
given above. Moreover, in this chapter, an adequate conception of devolution and
decentralization is provided.
Subsequently, chapter two seeks to provide a legal framework for devolution under the
2010 constitution of Kenya. This will include a look at the benefits and values of a
46
Supra, note 41.
47
Rose Kimotho, Demistifying Devolution, An interview with Dr. Mutakha Kangu. Available at
http://www.knchr.org/Portals/0/Magazines/Nguzo%20za%20Haki-Devolution.pdf accessed on 14th
November 2013.
48
49
Supra, note 8.
15
devolved system government; demarcation of the units of devolved government; the
design of finances under the constitution; and challenges facing devolved system of
government in Kenya. In addition, chapter three gives a comparative study of Kenya with
Uganda and South Africa. Finally chapter provides recommendations and conclusions on
the legal framework for devolution in Kenya.

16
CHAPTER TWO
DEVOLUTION UNDER 2010 CONSTITUTION
2.1 Introduction
As noted in the previous chapter, the Constitution of Kenya 2010 was ratified by
Kenyans on the August 4, 2010 referendum and promulgated at Uhuru Park, Nairobi, on
Friday August 27, 2010. Over 67% of Kenyans who voted during the referendum
approved of the Proposed Constitution. The promulgation of the 2010 Constitution
ushered in a new dispensation in Kenya’s constitutional, social, political and economic
order. Indeed, some have argued that this launched the Second Republic, the first having
been launched at independence in 1963.50
The 2010 constitution came with it a new system of governance, the devolution.
However, in the international circles, decentralization is not a new concept. Therefore,
there is now growing acknowledgment of the fact that state/sub-national interactions are
taking place in a democratic context and that, while raising major economic,
administrative and social issues, decentralization is basically political.51
Democratic decentralization, widely considered a strategy of governance and a gradual
process of reform, that addresses a range of administrative, political, fiscal, and land
50
Mugo Kibati (2010) “Kenya: A vision of prosperity for the second republic,” Daily Nation (Nairobi),
Thursday,
26/8/2011, available at <http://www.nation.co.ke/A+vision+of+prosperity+for+the+Second+Republic+/-
/1148/997504/-/12bta0h/-/index.html> accessed on 29th November 2013.
51
Kadmiel Wekwete, Decentralization and Development: an Overview, (2005) in; Guido Bertucci,
Decentralized Governance for Democracy, Peace, Development and Effective Service Delivery,(2005)
<http://unpan.org/publications/PDFs/ELibrary%20Archives/2005%20Decentralized%20Governance%20fo
r%20Democracy,%20Peace,%20Development%20and%20Effective%20Service%20Delivery.pdf
>accessed on 29th November 2013.
17
issues, is thus intended to transfer power and resources to a level of government that is
closer, better understood and more easily influenced (than was previously the case).52 The
underlying aim is to enhance the level of participation of civic actors in local governance
and development process. It is thus the object of this paper to give of devolution as laid
down in the Kenyan constitution.
2.2 The Values and Benefits of a Devolved System of Government
Many counties across the world are now turning to the devolution of power in the quest
to improve state governance and put in place what has become known as good
governance.53 Clearly, there is a turn-around across the world towards devolution. This is
informed by the fact that devolution or devolved systems have some values and benefits
that they offer in the organization of governance and running of government.54
Indeed, according to John Hatchrd et al55, devolution is said to be a system that seeks to
transfer political, administrative and economic authority from the center to local
communities and seeks to promote popular participation, empower local people to
making decisions on matters that affect them, enhance accountability and responsibility
and aims to introduce efficiency and effectiveness in the generation and management of
resources.56 Moreover, as Mutakha Kangu puts it, this shift towards devolution is said to
be largely a reflection of the political evolution towards more democratic and
participatory forms of government that seek to improve the responsiveness and
52
Ibid, page 14.
53
54
Supra, note 27.
55
John Hatchard et al, ‘Comparative Constitutionalism and Good Governance in the Commonwealth: An
Eastern and Southern African Perspective,’ Cambridge University Press,
(2004)<http://assets.cambridge.org/97805215/84647/frontmatter/9780521584647_frontmatter.pdf>
accessed on 29th November 2013
56
Ibid, page 184.
18
accountability of political leaders to their electorates.57 He further notes that this system
is premised on the belief that ‘once the people are entrusted with their own destiny
through the medium of popular local democratic institutions, they can govern themselves
in peace and dignity in pursuit of their collective well-being.’ It is only through
participatory and representative democracy therefore, that any form of government can
legitimately formulate its priorities and programs.58
In light of the foregoing, today, the merits of devolution depend on the perspective from
which it is viewed. Nonetheless, there is general consensus about the potential role of
democratic decentralization with respect to local development, and particularly, poverty
reduction. In this regard, Kadmiel Wekwete59 gives us the reasons for the growth in faith
in the democratic decentralization to include the following:
Democracy may offer valuable benefits (such as improved human rights,

political choice, and government accountability) that are also the basis of
the citizen’s acceptance of the existing political order. It suffices to say
that where bad governance entrenches corruption, mismanagement, and
public service inefficiency, while at the same time, undermining the
capacity to eradicate poverty and destitution. Democratic decentralization
is also supposed to efficiently address a large number of key issues (such
as the severe limitations of centralized planning and management; the
over-concentration of power, authority, and resources at the centre; the
weak contact between government and local people, including civil
society and the private sector; the lack of equity in the allocation of
resources; the insufficient representation of various political, religious,
ethnic and tribal groups in the decision-making process; the inadequate
exchange of information; and the inefficiency of service delivery
modalities). A government that is knowledgeable about, and hence
responsive to, the needs of the people is better equipped to implement pro-
poor policies and outcomes than one that is politically, physically, and
mentally distant from the people.60
57
58
Supra, note 27.
59
Supra, note 51.
60
Ibid.
19
Consequently, from a political point of view, a well-structured devolved system can
enhance good governance.61 The shift towards devolution therefore, is largely a reflection
of the political evolution towards more democratic and participatory forms of
government that seek to improve the responsiveness and accountability of political
leaders to their electorates.62 It is premised on the fundamental belief that once they are
entrusted with their own destiny through the medium of popular local democratic
institutions, human beings can govern themselves in peace and dignity in pursuit of their
collective well-being.63 The general arguments to support devolution are therefore clear.
It is only through participatory and representative democracy that any form of
government can legitimately formulate its priorities and program.64 By creating a number
of governments bellow the national level of government, it implies the opportunity for
participation and thus helps to foster the creation of a democratic culture in the country.
Still, it is a common knowledge that local leaders know their constituents better than
authorities at the national level. In that connection, they are better placed to provide the
public services that suits the local communities’ needs. In terms of accountability, the
physical proximity, when things go wrong, makes it easier for citizens to hold their
leaders accountable for their performance. In that regard, John Hatchard observes the
following political benefits of devolution:
With regard to the positive contribution on the political side, a well constructed
sub-national system can enhance good governance. As a South African study has
observed, devolution can deepen democracy by bringing government closer to the
people. By creating a number of governments below the national level, it
multiplies the opportunities for political participation and thus helps to foster the
creation of a democratic culture in a country. Locally elected leaders know their
61
Supra, note 1.
62
63
Ibid.
64
Ibid.
20
constituents better than authorities at the national level, and so are potentially well
positioned to provide the public services that local communities need… Another
important political advantage of devolution is that sub-national authorities can
reduce the concentration of power at the centre and thus hinder its arbitrary
exercise. In other words, they form an additional accountability mechanism and
help to allay the fear of the ‘tyranny of the majority’. Further, a devolved system
can provide channels for the expression of regional sentiments, and encourage
national policies to become more sensitive to regional variations within a
particular country. Devolution can also provide scope for regional interests on the
political stage, and provide an opportunity for minority parties, which might
otherwise be excluded from political power, to exercise an influence and to make
their voice heard. In short, a regional system of government can be more, rather
than less, ‘inclusive’ than a purely central government system.65
In light of the foregoing, Kenyans seem to have these values and benefits in mind. In
deed in the preamble to the constitution, Kenyans acknowledges that they have ethnic,
cultural and religious diversity, but further declare that these diversities notwithstanding;
they are determined to live in peace and unity as one indivisible sovereign nation.66 In
addition to the preamble, article 1067 sets out the national values and principles that ought
to guide all state organs, officers, and all persons, and of which the Kenyan people
identify participation, inclusiveness and accountability as some of the most important of
these values and principles.68 However, the more direct to the issue is article 174, which
sets out the objects of devolution.69
65
66
Preamble to the Constitution of Kenya 2010.
67
Supra, note 34.
68
Supra, note 27.
69
Supra, note 34, Article 174. The objects of the devolution of government are—
(a) to promote democratic and accountable exercise of power;
(b) to foster national unity by recognising diversity;
(c) 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;
(d) to recognise the right of communities to manage their own affairs and to further their development;
(e) to protect and promote the interests and rights of minorities and marginalised communities;
(f) to promote social and economic development and the provision of proximate, easily accessible services
throughout Kenya;
(g) to ensure equitable sharing of national and local resources throughout Kenya;
21
Similarly, from the economic point of view, devolution permits governments to match the
provision of local public goods and services with preferences to the local recipients.70
Competition between sub-national tier governments can also lead to the introduction of
innovative social and regulatory policies that can then be adopted nationwide.71 In this
regard, John Hatchard et al argue in the manner following:
On the economic side, a devolved system allows the opportunity to

formulate and implement regional or sub-regional economic development
plans within the context of national goals. This enables development
strategies to be targeted more accurately towards the specific needs of
particular communities and areas of the economy. Regional plans also
permit and encourage a greater sense of involvement in the work of
economic development by bringing that work closer to the people.
Devolution can also play a vital role in creating the conditions for
balanced growth within the different areas of the country. Regional
formations can help maximize the benefits to be derived from intra-
national comparative advantages, backward and forward linkages, and
economies of agglomeration, and enhance the optimal utilisation of
resources. Inequalities between regions can also be counteracted by a
deliberate national policy of interregional transfers. For example, in
Uganda, the Constitution provides for an ‘equalisation grant’, payable
from the Consolidated Revenue Fund, and based on the level of
development of the sub-national region and the degree to which the region
is ‘lagging behind the national average standard for a particular service’.
Finally, regional formations provide an institutional framework for
coherent and balanced development, and for targeted interventions where
needed.72
In light of the foregoing, Mutakha Kangu observed that these objectives of devolution in
Kenya, together with the assignment of functions to the two levels of government, this
can be described as a developmental devolved government system.73
(h) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya;
and
(i) to enhance checks and balances and the separation of powers.
70
71
72
73
22
2.3 The Devolved Government Statutes
An investigation on the legislation on devolution requires a good understanding of
various parts of the Constitution, notably Articles 6 (devolution), and 10 (National Values
and Principles of Governance); and Chapters Four (Bill of Rights), Six (Leadership and
Integrity), Seven (Representation of People), Eleven (Devolution) and Twelve (Public
Finance).74 The Constitution pays great attention to transparency in governance. 75 In line
with improving governance, the Constitution’s Preamble declares it to be covenant
among “We the people of Kenya.” Chapter One declares sovereign power to belong to
the Kenyan people, dismissing previous perceptions that supreme power belonged to the
President.76 Article 677 declares Kenya devolved into the 47 counties specified in the First
Schedule,78 and provides that the national and county governments are ‘distinct’ and
‘interdependent’, as elaborated in the Fourth Schedule.79 Article 1080 lists the various
values and principles of national governance to include amongst others: patriotism;
national unity; sharing and devolution of power; participation of the people; equity; social
justice; nondiscrimination; protection of the marginalized; good governance;
transparency and accountability; and sustainable development. Chapter Six81 amplifies
issues of leadership and integrity. One of the constitutional provisions that devolution
should facilitate is the Bill of Rights presented in Chapter Four.82 The Rights and
74
Supra, note 8.
75
This is well illustrated in Article 10 and Chapter Six of the Constitution of Kenya.
76
A reading of Chapter II of the repealed Constitution of Kenya reveals that the supreme power belonged to
the President.
77
Supra, note 34.
78
Ibid.
79
Ibid.
80
Supra, note 34.
81
Ibid.
82
Supra, note 8.
23
Fundamental Freedoms listed in Part 2 of the chapter – especially the economic and
social rights (Article 43) and the family (Article 45) – are best monitored at the sub-
national level.83 Chapter Eight establishes Parliament, the National Assembly and the
Senate in Articles 93 to 96.84 The Senate’s primary function is to protect the interests of
the counties and their governments, debating and approving bills concerning counties,
sharing out the counties’ share of national revenues, which shall not be less than fifteen
per cent of total revenue. Article 9885 provides for forty seven senators elected by the
counties, sixteen women members nominated from party lists, a man and woman
representing the youth and another pair representing people with disabilities, and an ex-
officio Speaker. Articles 110 to 112 address the special and ordinary bills concerning the
county governments. Such is the constitutional framework for devolution in Kenya.
In light of the foregoing, it is important at this point to look at specific legislations on
devolution. These are: The County Government Act 2012, The Transition to Devolved
Government Act 2012, Public Finance Management Act 2012 and The Intergovernmental
Relations Act 2012.
2.3.1 The County Government Act, 201286
The preamble to the Act gives overriding object and purpose of the Act. It states that, ‘An
Act of Parliament to give effect to Chapter Eleven of the Constitution; to provide for
county governments’ powers, functions and responsibilities to deliver services and for
83
Ibid.
84
Supra, note 34.
85
Supra, note 34.
86
Laws of Kenya
24
connected purposes.’ As such, a detailed object and purpose of the Act is given in section
3.87
Similarly, Section 4 provides for counties’ independent identities (flags; court of arms;
and public seals), which underscores Article 6(2)’s88 provision that the national
government and county governments are “distinct (even if) interdependent”.89
Further, Part II90 elaborate on the functions and powers of the county government,
emphasizing its constitutional authority to enter into contracts, acquire and hold and
dispose of assets, and delegate functions, such as through sub-contracts and partnerships.
Part III91 elaborates on the structures of the County Assembly, its membership and roles.
87
The County Government Act, 2012, s 3 provides as follows: The object and purpose of this Act is to—
(a) provide for matters necessary or convenient to give effect to Chapter Eleven of the Constitution
pursuant to Article 200 of the Constitution;
(b) give effect to the objects and principles of devolution as set out in Articles 174 and 175 of the
Constitution;
(c) give effect to Article 176 (2) of the Constitution in respect of further decentralisation;
(d) provide for the removal from office of the speaker of the county assembly in accordance with Article
178 of the Constitution;
(e) provide for the powers, privileges and immunities of county assemblies, their committees and members
under Article 196 of the Constitution;
(f) provide for public participation
in the conduct of the activities of the county assembly as required under Article 196 of the Constitution;
(g) seek to ensure that the community and cultural diversity of a county is reflected in its county assembly
and county executive committee as contemplated in Article 197 of the Constitution;
(h) prescribe mechanisms to protect minorities within counties pursuant to Article 197 of the Constitution;
(j) provide, pursuant to Article 200 of the Constitution, for—
(i) the manner of nomination or appointment of persons to, and their removal from, offices in county
governments, including the qualifications of voters and candidates;
(ii) the procedure of assemblies and executive committees including the chairing and frequency of
meetings, quorums and voting; and
(iii) the suspension of assemblies and executive committees;
(k) prescribe, pursuant to Article 235 of the Constitution, uniform norms and standards, for––
(i) establishing and abolishing offices in the county public service;
(ii) appointing persons to hold or act in those offices, and confirming appointments; and
(iii) exercising disciplinary control over and removing persons holding or acting in those offices; and
(l) provide for the promotion, evaluation and reporting on the compliance by county public officers with the
values and principles in Articles 10 and 232 of the Constitution.
88
Supra, note 34.
89
90
The County Government Act, 2012, ss 5-6.
91
Ibid, ss 7-25.
25
The part elaborates on the position of the speaker and clerk of the County Assembly, and
its freedoms and procedures, including the right of citizens to petition. Part IV 92 discusses
the rationale behind the configuration of electoral wards, and provides for the right to
recall ward representatives as envisioned by Article 104.93 Part V94 of the Act dwells on
the county executive. It discusses the functions, responsibilities and powers of the
governor, as well as removal from that office. It further discusses the constitution of the
executive committee, its functions and roles, the appointment of its officers who operate
under a performance management plan. In relation to effective service delivery, Part VI95
considers the foci and administration of decentralization to the sub-county level,
including to urban areas and cities.
The sections of Part VII96 elaborate on the management of the county public service, a
very important area in light of perceptions that “counties will employ their own.” The
section considers the management of the constitutional values and principles of
governance and the public service.97 Besides the county public service, there will be a
county public service board whose members are appointed competitively. The board shall
establish, abolish and staff offices, manage promotions, retirements and disciplinary
matters, and shall oversee county level adherence to Articles 10 and 232, 98 submitting an
annual report on the same to the County Assembly while also publishing the same. In
filling vacancies in the county public service, the board will be required to ‘invite
applications through advertisement so as to reach as wide a population of potential

92
Ibid, ss 27-29
93
Supra, note 34.
94
Supra, note 90, ss 30-47.
95
96
97
As envisaged in Articles 10 and 232 of the Constitution of Kenya, 2010.
98
Supra, note 34.
26
applicants as possible,’99 after which the board must maintain a record of all applicants,
which may be inspected by any person.100 Section 77 allows any person dissatisfied by
the conduct of the board to petition the Public Service Commission. Part VIII 101 of the
Act is on the principles citizen participation, and also addresses their right to petitioning
the county government which has an obligation to ‘respond expeditiously’, including
conducting a referendum of pertinent issues.
Part IX102 addresses the principles and objectives of, and frameworks for communication
that ensure access to information while also promoting the inclusion and integration of
minorities. These aspirations will be enhanced through civic education, whose principles,
purposes, objectives and frameworks are addressed in Part X.103
According to Section 104,104 ‘a county government shall plan for the county and no
public funds shall be appropriated outside a planning framework developed by the county
executive committee and approved by the County Assembly.’ This planning function is
the focus of Part XI,105 which outlines its principles, objectives and output – the five-year
county integrated development plan, incorporating sectoral and spatial plans, as well as
those of cities and municipalities. The part underscores the link between the plan, its
action plans, the county budget and performance indicators.106 Finally, Section 115
emphasizes public participation in all these activities. The principles and standards of,
99
Supra, note 90, s 64.
100
Ibid, s 68.
101
Ibid, ss 87-92.
102
Ibid, ss 93-97.
103
Ibid, ss 98-101.
104
Supra, note 90.
105
106
Supra, note 8.
27
and frameworks for, public service delivery are the subject of Part XII. 107 The emphasis
is on equity, efficiency, accessibility, nondiscrimination, transparency, accountability,
information sharing and subsidiarity, alongside a focus on basic needs, monitored
through Citizen Service Centres at all levels of the county government. The part also
discusses fairness in setting tariffs, Section 120108 providing that access to basic services
for poor households should be ensured through tariffs covering only operating and
maintenance costs. The part mandates assistance to needful county governments by the
ministry in charge of intergovernmental relations, to ensure their service delivery. 109
Part XIII110 provides procedures for the suspension of county governments, among the
reasons contemplated being conflict or war, and actions deemed contrary to the interests
of its citizenry. The part also provides for the prorogation of the County Assembly,
suspension of the county executive committee, establishment and eventual dissolution of
an Interim County Management Board on accession of a new government. Part XIV111
discuss pensions and personal liability, and repeal of the Local Government Act. The
final part112 cover transitional considerations, including the first sitting of the County
Assembly, facilitation of civic education and the continuing status of serving civil
servants on the coming into effect of this Act.
107
Supra, note 90, ss116-121.
108
Supra, note 8.
109
Supra, note 8.
110
111
Ibid, ss 131-135.
112
Ibid, ss 136-138.
28
2.3.2 The Intergovernmental Relations Act, 2012
The Constitution of Kenya, 2010 establishes two levels of government, namely, the
national government and county government.113 The national government and the 47
county governments began operating after the first national elections under the
Constitution of Kenya, which was on March 4, 2013. Article 6 (2)114 recognizes that the
two levels of government are distinct and interdependent. The two levels of government
will conduct their mutual relations on the basis of consultation and cooperation.115 Article
189 gives further details on the mechanism, for cooperation and consultations between
the national and county governments and amongst county governments.
The Intergovernmental Relations Act, 2012, establishes a framework for
intergovernmental consultation and cooperation and to provide mechanisms for the
resolution of intergovernmental disputes whenever they arise.116 The Act creates two
main institutions to assist with intergovernmental consultation, learning and cooperation.
These are the Summit and the Council of Governors.117 The Act also set out the
principles and criteria for transferring and delegating powers, functions and competencies
between the two levels of government.118 Lastly, the Act lays down the principles and
process of dispute resolution.119
113
Supra, note 34, Article 1(4)
114
Supra, note 8.
115
Ibid.
116
Preamble to the Intergovernmental Relations Act, 2012.
117
Intergovernmental Relations Act, 2012, ss 7 and 19.
118
Ibid, Part III.
119
Ibid, Part IV.
29
The principles and objects of intergovernmental relations120 include recognition of the
people’s sovereignty, participatory governance, and the functional and institutional
integrity of both government levels based on Article 10.121 Further, service delivery
should be equitable with a special focus on hitherto marginalized groups, based on
objective and impartial, but consulted decisions, with full accountability to the people.
Part II122 of the proposed legislation establishes structures for intergovernmental
relations, including the National and County Governments Coordinating Summit,
hereinafter referred to as the Summit, the Intergovernmental Relations Technical
Committee, hereinafter referred to as the Technical Committee, and the Council of
County Governors, hereinafter referred to as the Council. The Summit comprising the
President and 47 governors shall offer consultations, and promote national values,
principles of governance and national cohesion and interests. In evaluating reports from
other intergovernmental bodies, it shall monitor and evaluate the performance of the
national and county governments, and make recommendations as the need may arise.
Arising from the deliberations of its two meetings per year, the Summit will report to the
National Assembly, Senate and county assemblies and subsequently receive a feed-back
on the reports. The Technical Committee is the Summit’s secretariat and may employ
such staff and establish sectoral working groups or committees as is necessary to
implement Summit decisions and provide quarterly reports on the same. Finally, the
Council provides a forum for consultation and capacity-building among governors,
information sharing, dispute resolution, and consideration of inputs from the public and
120
Ibid, s 4.
121
Supra, note 8.
122
30
other intergovernmental bodies. Based on its two meetings a year, the Council submits
reports to the Summit, Parliament and county assemblies.
Part III123 provides the principles for the transfer and delegation of powers, functions and
competencies between the national and county governments, subject to Articles 186 and
187 of the Constitution. This shall be done in writing, ensuring some basic minimum
standard of delivery is maintained.
Part IV124 provides for dispute resolution mechanisms, which must be included in all
agreements between governments, requiring governments to take all reasonable measures
to resolve disputes amicably. The part provides for how to declare a dispute, proceed with
it, and manage a resulting judicial proceeding.
2.3.3 Public Finance Management Act, 2012
The Public Financial Management Act is the largest of the devolution Acts. Its object is
to ensure that the national and county governments manage public finance in accordance
with the principles spelt out in Article 201 of the Constitution of Kenya; ensuring public
officers are accountable to Kenyans through Parliament and the county assemblies.125
While the Act has eight parts and 210 clauses, not all of these are pertinent to
devolution.126 Consequently, the following summary focuses on those portions of the Act
that directly touch on devolution.
123
124
125
Public Finance Management Act, 2012, s 3.
126
31
Part II127 deals with parliamentary oversight of public finances. While the National
Assembly focuses on the national budget,128 the Senate handles proposals on the basis of
allocation of revenue among counties, and any other county financial matters.129 The
Parliamentary Budget Office is an important institution in that it can transform technical
budgetary issues into material that is “clear, readily understandable, user-friendly...
published and publicised not later than fourteen days after production”.130 Part III131
spells out the responsibilities of the national government in managing and controlling
public finance. Sections 11132 establishes the National Treasury which is charged with
making, managing and evaluating economic and financial policies, public funds,
domestic and external resources, and establishing universal financial management
standards management standards to be observed by the national and county governments.
In particular, it should assist county governments to develop the capacity for effective
public financial management, such as by providing them with the information they need
to fulfil their obligations.133 In these respects, Section 14 mandates the National Treasury
to respond favorably to County Treasury requests for capacity building. The national
Treasury administers the Consolidated Fund into which all government revenues flow,
and from which payment to county government are made134 and further administers the
127
Supra, note 125, ss 7-10
128
Ibid, s 7.
129
Ibid, s 8.
130
Ibid, s 10.
131
Supra, note 125, s 11-101.
132
Act No. 18 of 2012.
133
134
Ibid, s 17.
32
Equalization Fund,135 which is designed to ensure that basic services in marginalized
areas “are brought to the level generally enjoyed in the nation, so far as possible”.136
Further, Section 25137 mandates the National Treasury to prepare the Budget Policy
Statement which assesses the current economic and financial status of the country, and
the related outlook. This requires consultations with the Commission on Revenue
Allocation, county governments and the public, amongst others. The National Treasury
also prepares a Budget Review and Outlook Paper which reviews fiscal, macro-economic
and financial performances, and must, together with the Budget Policy statement, be
published and publicized.138 These two documents are significant for county
governments’ own perceptions of how the economy is performing as they develop their
own plans and action for the incoming financial year.139 Sections 31, 32 and 33140 require
the Cabinet Secretary to report to Parliament on all loans, guarantees and debt
management strategy for all national and county governments and their entities. Sections
35 to 45141 address the management of the budget process, with Section 42 142 providing
for Parliament’s consideration of the Division of Revenue Bill (sharing between the
national government and the County Revenue Fund) and the County Allocation of
Revenue Bill (sharing among the counties).
135
Ibid, s 18.
136
The constitution of Kenya, 2010, Article 204 (2).
137
138
139
Supra, note 8.
140
Supra, note 125.
141
Ibid.
142
Ibid.
33
Section 62 and 63143 establish the Public Debt Management Office to instil efficiency in
the realm, establishing reliable databases which enable the development of medium and
long term governments, as they may also need to incur debt.144
The Cabinet Secretary145 is empowered with the approval of the Cabinet to immediately
stop the transfer of funds to a county government entity which “is in serious or persistent
material breach of its obligations or financial commitments.”146 The cabinet Secretary
must consequently inform the accounting officer of the county government entity, the
Cabinet Secretary in charge of intergovernmental relations, the County Executive
Committee responsible for finance, the Controller of Budget, the Commission on
Revenue Allocation, and the Intergovernmental Budget and Economic Council.147 If
deemed necessary, the Cabinet Secretary can apply for Parliament to approve an
extension of the stoppage beyond the initial 60 days,148 and institute a financial recovery
plan.149 Implementation of the plan will be overseen by the Joint Intergovernmental
Technical Committee,150 which can terminate the intervention once the situation
normalizes.151
Part IV152 considers the County Government’s obligations over public finance starting
with the need to heed the principles set out in Article 201 of the Constitution of Kenya,
2010. Each county will have a County Treasury whose functions closely map those of the
143
Supra, note 125..
144
145
In this case the Cabinet Secretary for Finance.
146
Supra, note 8. page 21.
147
Ibid.
148
149
150
Ibid, s 100.
151
Ibid, s 101.
152
Ibid, ss 102 to 186.
34
national Treasury for the national government.153 Thus, it will develop and implement
county financial policies, prepare and coordinate the implementation of the annual
budget, including mobilizing resources for its funding. It will ensure compliance in
financial accounting with national standards, prepare books for audits, manage county
debt, oversee the financial affairs of county government entities, and report to the County
Assembly and national Treasury on these matters. Section 105 gives the County Treasury
extensive powers to enable its fulfillment of the foregoing obligations; and may also call
upon the National Treasury for assistance154 in conforming to financial responsibility
principles.155 Section 137 establishes a County Budget and Economic Forum for each
county to produce its plan, County Fiscal Strategy Paper 156 and County Budget Review
and Outlook Paper (Section 118), the latter’s implementation only being deviated from
under special circumstances authorized by the County Assembly.157 The County Treasury
also prepares the county budget and submits the same to the County Executive
Committee and County Assembly.158 The member (finance) will also submit revenue
raising measures for approval by the County Assembly.159 County spending authorized
by an Act of the County Assembly will be drawn; with the authority of the Controller of
Budget; from respective County Revenue Funds kept at the Central Bank.160 Provisions
also exist for delays in enacting the Appropriation Bill and supplementary estimates.161
Finally, counties may undertake joint infrastructure investments with the approval of
153
Supra, note 125, ss 103 and 104.
154
155
Ibid, s 107.
156
Ibid, s 117.
157
Ibid, s 108.
158
Ibid, ss 125, 128 and 131.
159
160
Ibid, s 109.
161
Ibid, ss 134 and 135 respectively.
35
Parliament.162 Additional to budget resources, counties may receive grants for
development partners whose administration must be approved by the County
Assembly.163
They may also borrow prudently against an Act of the County Assembly in the short
term, repayable in a year164 or in the longer term,165 and may also issue securities.166
However, County Governments and their entities may also lend out money against an Act
of Parliament.167
Sections 110 to 115168 allow the County Executive Committee member (finance) to
establish with County Assembly approval, and operate of a County Emergency Fund in a
separate account from the County Revenue Fund. The member may make payments from
the Emergency Fund not exceeding two percent of the county’s total revenue, “if satisfied
that there is an urgent and unforeseen need... for which there is no legislative
authority.”169 Section 116 also allows the member finance to establish other public funds
with the approval of the County Executive Committee and the County Assembly. Finally,
the County Treasury will oversee the opening and operation of bank accounts by county
government entities170 and manage procurement171 and the county debt.172
162
Ibid, s 146.
163
Ibid, ss 138 and 139.
164
Ibid, s 142.
165
166
Ibid, s 144.
167
Ibid, s 145.
168
Supra, note 125.
169
Supra, note 8.
170
171
Ibid, s 122.
172
Ibid, s 123.
36
The County Assembly and the County Public Service Board will have their respective
accounting officers who will oversee all the public finance affairs. 173 Meanwhile the
member (finance) will designate accounting officers for all County Government entities
who are charged with ensuring legality and legitimacy in the use of public financial
resources, with respect to strategic planning, contracts, procurement and disposal,
expenditure, accounting, auditing, and discrepancies; all of which reports must be made
to the appropriate authorities.174 Further, such accounting officers may write off losses
and advance cash to officers,175 maintain assets and liabilities,176 and internal audit
systems.177 Additionally, the member (finance) shall appoint receivers of revenue, who
may authorize a public officer to collect on their behalf, including the Kenya Revenue
Authority, their performances being reported quarterly to the National Treasury and the
Commission of Revenue Allocation.178 Finally, Section 159 allows the member (finance)
to waive a tax, fee or charge imposed by the County Government; except for public
officers, but must keep a record of this decision. Section 162 obliges public officers of
County Governments and their entities to comply with constitutional provisions and
related legislation, by being lawful, effective, efficient, economical and transparent, while
taking appropriate steps to safeguard public assets. Sections 163 to 168 mandate various
county level accounting officers to prepare end of financial year or quarterly reports of
the status of their accounts, including the County Treasury, accounting officers of county
entities, receivers of revenues and fund managers/administrators. Matters concerning the
173
Ibid, s 147.
174
175
176
Ibid, s 153.
177
Ibid, s 154.
178
Ibid, ss 157, 158 and 160.
37
financial management of urban areas and cities are considered in Sections 169 to181,
with the rider that the latter are subject to all provisions for County Governments. Their
accounting officers are appointed as at Section 148, to manage received revenues, credit
control and the debt. Section 172 provides various resources, including own revenues and
allocations from the national government, investment incomes, grants and donations and
borrowing. National government allocations will be based on objective criteria listed in
Section 173, while the principles of sound financial management are listed in Section
174. Urban area and city budgets consistent with the County Fiscal Strategy Paper, will
be approved by respective management Boards before being forwarded to the County
Treasury which must ensure the public participated in the process.179 As with other public
budgets, the County Assembly may authorize urban areas and cities to withdraw up to
fifty percent of the estimates of expenditure prematurely;180 but they may also borrow,
subject to the County Assembly, from, or through the County.
Government, or through bank overdrafts,181 or receive grants.182 Sections 182 to 185183
address the establishment or dissolution of county corporations with the approval of the
County Executive Committee, and on the recommendation of the Country Treasury
which monitors all such activities and makes an annual report for submission to the
County Treasury. Relations between the national and county governments on budget and
economic affairs are covered in Part V,184 based on the Intergovernmental Budget and
Economic Council chaired by the Deputy President, with members including the Cabinet
179
180
Ibid, s 176.
181
Ibid, s 177.
182
Ibid, s 178.
183
Ibid.
184
Ibid, ss 187–191.
38
Secretaries (finance and intergovernmental relations), Parliamentary Service
Commission, Judicial Service Commission, Commission on Revenue Allocation, Council
of County Governors, and all county Executive Committee members (finance). These
members will consult of the Budget Policy statement, the Budget Review and Outlook
Paper and the Medium-Term Debt Management Strategy, as well as other matters
relating to budgeting, the economy, finances and cash flows, borrowing, and any other
related matters.185 Allocation of Revenue Bill, accompanied by a memorandum detailing
the fidelity of the outcomes to the constitutional and legislative frameworks involved as
provided in Section 191. Part VII186 provides the mechanisms with which to enforce the
provisions of the legislation, warning that a public officer shall neither spend nor raise
revenues, enter into contracts, borrow or direct another officer to undertake any of the
foregoing, contrary to the Constitution, or parliamentary of County Assembly legislation.
The penalty on conviction is a fine of one million shillings or imprisonment not
exceeding two years, or both. Further offences include unlawful possession of assets,
misappropriation, concealment of information on financial impropriety and corruption.
Where penalties are not specified, imprisonment shall not be more than five years, or a
fine of ten million shillings, or both. Further, Section 203 makes a public officer
personally liable for losses sustained by County Governments through fraud, corruption,
and negligence, for which civil proceedings may be instituted. Finally, Section 207
provides that regulations be made for the structures and processes of participatory
governance.
185
186
Ibid, ss 196–204.
39
2.3.4 The Transition to Devolved Government Act
The object and purpose of this proposed legislation is to provide a legal and institutional
framework for sustained service delivery even as the move to the devolved government
system is undertaken, based on Section 15 of the Sixth Schedule to the Constitution.187
While also providing the framework to enable the Commission on the Implementation of
the Constitution to perform its monitoring and oversight roles over effective devolution to
the counties, the Act also provides the mechanisms for capacity building for the national
and county governments. Finally, the legislation provides policy and operational
mechanisms during transition for establishing assets and liabilities, human resources and
related matters, such as pensions, and the closure and transfer of public records.188
Part II of the Act189 outline the transition mechanism, establishing the Transition
Authority190 composed of a chair and eight members; all of whom must be graduates with
experience, assisted by the Office of the President, Attorney General and the state
departments in charge of devolution, public service, finance, planning and justice. 191 In
fulfilment of its objects and purpose, the Transition Authority shall oversee the phased
transfer of functions as per the Fourth Schedule, establish resource needs, including
inaugural county budgets, and evaluate the sustainability of on-going activities.192
Critically, the Authority shall develop the criteria for the phased or asymmetric transfer
of functions, and previously shared assets, liabilities and staff of national and local
187
The Transition to Devolved Government Act, 2012, s 3.
188
Supra, note 8.
189
Supra, note 187, ss 4 to 22.
190
Ibid, s 4.
191
Ibid, ss 5 to 6.
192
Ibid, s 7.
40
governments. The Authority shall also evaluate and determine capacity needs and the
nature of requisite capacity building need. Consequently, Section 8 gives the Authority
extensive powers of access to information, data and interviews. The executive functions
of the Authority shall be under a secretary supported by such staff 193 and committees194
as is necessary to deliver its obligations.
Part III195 elaborates on the phased transfer of functions, initially determined by the
Authority, but eventually applied for by individual county governments.196 The
legislation also provides the criteria for the transfer of functions to include the existence
of adequate legislation, frameworks, administrative capacity, infrastructure, financial
management systems, plans, and other pertinent variables for the delivery of the
service.197
Part IV198 provides for the monitoring of the Authority’s performance, requiring it to
submit quarterly reports to the President, Parliament, Commission for the Implementation
of the Constitution, and the Commission on Revenue Allocation. It shall also submit to
the same authorities an annual report on finances, activities, work plans, transfer
applications, and other appropriate data on its operations. While the Authority is
mandated to publish and publicize its annual reports, Section 27 allows a person to
request any information on the Authority’s functions.
193
194
Ibid, s 20.
195
Ibid, ss 23 to 24.
196
Ibid, s 23.
197
Ibid, s 24.
198
Ibid, ss 25 to 27.
41
Part V199 provides that the Authority’s budget will be voted by Parliament, alongside
monies that may accrue from its activities and donations to it. The legislation provides
that Parliament allocate adequate resources to the Authority, whose budget will be
transmitted to Parliament by the cabinet secretary in charge of devolution. The
Authority’s accounts will be audited by the Auditor General. Being a body corporate,
capable of suing and being sued,200 the Authority is entitled to invest its funds as it
considers prudent. Part VI201 carries miscellaneous provisions, which mandate
cooperation with the Authority by all state organs,202 lest such an officer is charged with
an offence which on conviction, attracts a fine of Kenya shillings five hundred thousand,
or imprisonment for a term not exceeding two years, or both. Section 34 provides for a
dispute resolution mechanism, while Section 35 legislates against the transfer of assets or
liabilities during the transition period without consulting various institutions. The
Authority stands dissolved three years after the first elections under The Constitution of
Kenya, 2010, and its assets and liabilities shall be inherited by the Summit. Three
schedules provide for the appointment of members of the Authority, procedure for the
conduct of Authority affairs, and the oaths of offices.
2.4 The Citizens’ Participation in Devolved Government
Communication of the various policies and management systems on public affairs under
the devolved system will have to be a key plunk in governance, in order for devolution to
199
Ibid, ss 28 to 31.
200
Ibid, s 4.
201
Supra, note 187, ss 32 to 38.
202
Ibid, s 32.
42
be understood and owned by all Kenyans.203 Citizen access to public information will
help ensure effective participation and enhance mechanisms for accountability at all
levels. Further, given that devolved system of government is a new approach to
governance, appropriate civic education program will provide citizens with the necessary
knowledge confidence and skills to be able to internalize and apply the values and
principles of devolution and, at the same time, engage meaningfully in the decision-
making process.204
The Constitution recognizes the role of public communication and access to information
as critical components of public participation in development. Article 35 (1) of the
Constitution, provides for access to information as a right which gives every citizen
access public information. Article 33 (1), (2) and (3)205 ensure that every person has the
right and freedom to seek, receive or impart information or ideas. In the past, the trend
has been that public communication has been one-way, top-down, and focused on
instructions from government to citizens. The content has also been about government
activities and decisions rather than the exchange of ideas between citizens and
government, and among citizens. This resulted in exclusion of citizens’ contributions to
decision-making process and influence in the development agenda. The centrality of
public communication and access to information in the promotion of good governance
through citizens’ participation for successful implementation of devolution cannot be
203
‘Devolution under the Costitution: Final Sessional Paper,’ (2012) Ministry of Planning, available at
<http://www.planning.go.ke/index.php?option=com_docman&task=doc_download&gid=90&Itemid=69>
accessed on December 9, 2013, page 33.
204
Ibid.
205
Supra, note 34.
43
over emphasized. It is through public communication that citizens will understand and
interrogate public policy and input into the decision-making process.206
Consequently, the core values of democratic governance are the presence of public
debate about the distribution and execution of power in order to ensure that choices are
arrived at through public policy debates, scrutinized and contested as is necessary. Thus
the absence of such interactions in a society undermines democratic governance, which
raises fundamental legal and policy questions on what needs to be done in and through
the communication and information sector so as to address emerging challenges under the
devolved system of government.207
Moreover, in a democracy and in particular, in a situation of major reforms as Kenya is in
now, 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. The understanding and appreciation of
devolution by Kenyans is minimal despite their having voted for the new Constitution
whose backbone is the devolution of power and resources to enable them participate in
decision-making.208 The debate leading to the referendum was dominated by
presentations and interpretations that did not seek to explain the values, benefits and
operational challenges associated with devolution in general and in Kenya in
particular.209
206
Supra, note 203.
207
Supra, note 55.
208
Supra, note 203.
209
Ibid.
44
2.4.1 The Constitutional Provisions for Participation
As noted above, the constitution provides for ‘participation of the people’ as a national
value and principle of governance.210 This presupposes that the citizens ought, by right, to
participate in determining how they are governed. Additionally, the Constitution
emphasizes the rights and freedoms of citizens, in Article 33 (1) Article 33 (1) which
provide for the freedom to seek, receive or impart information or ideas; and Article 35 (1)
(3) which deals with access to information. Furthermore, Article 6 (3) states that a
national state organ shall ensure reasonable access to its services in all parts of the
Republic. All these provisions ensures that citizens receive as much information as
possible thereby participating in the decision making in their respective governments.
2.4.2 The Public Participation in County Financial Management
As noted above, the Constitution requires citizen participation in all governance issues
and particularly in public financial management. The views given by the public during
county public participation forums on financial matters shall be heeded for
accountability, and taken into account when making decisions, formulating policy and
county legislation. Towards the realization of this goal, county governments, in
cooperation with the Senate will need to ensure effective public participation during the
process of determining the basis for resource allocation among counties, and the share of
revenue that is annually allocated to the county level of government. These consultations
210
Supra, note 34, Article 10.
45
will need to be well structured, appropriately programmed and scheduled to give voice to
every citizen and to enable attendance of all interested persons.211
2.5 Challenges Facing Devolution in Kenya
There are formidable challenges that could derail efforts to deploy a well structured and
effective public service in counties. Effective staffing and performance in the county
public services could easily be compromised by excessive discretion of county
governments, lack of transparent and accountable control systems, excessive bureaucracy
and weak capacities. These if unchecked, will lead to the erosion of professionalism,
corrupt practices or perceptions of corruption, abuse of office, negative ethnicity and
cronyism in appointments, promotions and disciplinary control. In order to avoid these
potential challenges, an independent body to be known as the County Public Service
Board should be established in each county before any recruitment is done.212 The Board
will primarily perform, on behalf of county governments, the responsibilities assigned
under Article 235 of the Constitution of Kenya, 2010. This will be provided for in
national legislation. The Boards will be expected to develop consultative frameworks that
will facilitate county public service delivery policy formulation and implementation,
covering any local level specific needs.213 It is critical that human resource management
and development policies adopted by county governments be required to reflect best
practices. Relevant policies should be designed with the ultimate objective of optimal
utilization of human resources and the personal development of public officers in their
careers. However, unique circumstances in every county’s public service may determine
211
Supra, note 203.
212
Ibid.
213
Supra, note 203.
46
the human resource requirements and management approach that a county government
may wish to adopt, bearing in mind that national legislation will apply throughout the
county public service. In addition, international conventions on labour relations and
practices will likewise, continue to apply in the management and development of human
resources.
2.6 Conclusion
Following the discussion in this chapter, the Constitution of Kenya, 2010, has given
Kenyans renewed hopes for a better and more prosperous Kenya that cares equally for all
its citizens, with a more democratic political system and a robust economy. In realization
of the benefits of the Constitution and thus, meet the high expectations of Kenyans, there
is an urgent need for all those involved in the implementation of the Constitution to
display the highest standards of trusteeship and stewardship. However, many challenges
are also likely to emerge especially those relating to the growing numbers of unemployed
youth and the rapidly growing urban population. The latter presents great potential for
our country but also a major challenge, given the frustrations the unemployed youths go
through in their daily lives.214 For this and other reasons the current reform agenda and
tempo must be maintained and enhanced, through effective devolved governments, in
order to deliver positive changes for all. Since devolved governments will be closer to the
people and, with resources to deliver services, there is no reason why people should not
see immediate positive changes particularly through their active participation in decision
making.215
214
Ibid.
215
Supra, note 203.
47
As we move forward we should all accept that devolution of power and resources has
given us a window of change to address the challenges of development that our post
independence history has gone through, It offers us an opportunity to empower our
people to participate in their own development and thus shift the paradigm from
nationally directed investments to people driven development.216
As articulated in this chapter, Kenyans have entered into a new constitutional and
political dispensation. On their part, all the leaders in this new dispensation must rethink,
reevaluate and restructure their leadership strategies. Without all of us committing
ourselves to the ideals of the Constitution of Kenya, 2010 and potential benefits, we are
likely to derail the realization of the many promises in the Constitution and thus increase
anxieties and frustrations amongst the people.217
216
Supra, note 1.
217
Supra, note 55.
48
CHAPTER THREE
A COMPARATIVE ANALYSIS OF DECENTRALIZATION IN KENYA VIS A
VIS OTHER JURISDICTIONS
3.1 Introduction
In Africa, since the 1980s, decentralization has been implemented in several countries.
These efforts aim to achieve such objectives as: bringing public services closer to the
people; addressing inequalities; promoting citizen participation; and strengthening
democratic institutions.218
As Njeru Kirira puts it, ‘the African experience with decentralization is limited by two
factors: late starts and political fragility.’219 Therefore, there is little or no recorded
evidence available. Further, it can be argued that, since the majority of people in Africa
are poor, their interest can be better addressed when a sustainable decentralized system is
in place. As discussed in the previous chapters, this can be achieved when service
delivery improves, and planning and resource allocation are then better aligned to local
needs as a function of such decentralized governance systems. In such cases,
decentralization can be used to address regional and group disparities.220
In light of the foregoing, the abuse and misuse of a highly centralized system is the basis
for the agitation for a new system of governance. This move led to the clamor for
218
Njeru Kirira, ‘Public Finance under Kenya’s new Constitution,’ Society for International Development,
Constitution Working Paper No. 5. Available at <http://www.sidint.net/docs/WP5.pdf accessed on 13
January 2014.
219
Ibid.
220
Per Tidemand, ‘Local Level Service Delivery, Decentralisation And Governance: A Comparative Study
Of Uganda, Kenya And Tanzania,’ Commonwealth Journal of Local Governance Issue 3. Available at
<http://www.jica.go.jp/english/publications/reports/study/topical/africa/pdf/001.pdf > accessed on 13
January 2014.
49
reforms. It has also been encouraged by the belief that fiscal decentralization encourages
the flow of local information, and that it links citizens’ needs more closely to policies and
programmes.221 On the contrary, in the words of Njeru Kirira, ‘there have been concerns
that if not well managed, decentralization can lead to capture by local political and self-
interested elites who may turn the policies and programmes for their benefit, worsening
the situation for the poor.’222 The risks are said to be higher where there are weak
democratic institutions, especially electoral systems, and where the poor, who are less
informed, are more likely to vote on the basis of the candidates’ campaign spending.223
In addition, the culture of dependency may be on the rise. This is often the risks
associated with a poorly designed decentralization. This may come with its own problems
too. It may lead to the lack of balance between social expenditures and capital
investments, which may hurt the long-term development of the affected areas.224 Finally,
there is the challenge of the structure of government and the costs associated with it: the
more the layers, the higher the cost of running the government.225
Consequently, among the African countries with longer experience are South Africa,
Ethiopia and Uganda, where good progress is reported.226 This chapter therefore, will
study how decentralization has been implemented in Uganda and South Africa,
comparing them to how it is being implemented in Kenya, and finally giving a way
forward that Kenya should follow.
221
Supra, note 47.
222
Supra, note 218.
223
Supra, note 218.
224
Ibid.
225
Ibid.
226
Ibid.
50
3.2 Decentralization in Uganda
3.2.1 Background Analysis

As noted above, since the late 1980s, governments in sub-Saharan Africa have been
undertaking a range of structural reforms, both politically and socio-economically.
Uganda has not been left out. The country endeavors for democratization as well as for
sustainable development.227 The backbone for this policy reform has been
decentralization. Decentralization is therefore considered to connect the state and the
people. Uganda, after its recovery from a prolonged internal civil strife, is now to move
ahead for democratization and development.228
In light of the foregoing, the legislative foundation of decentralization in Uganda was
provided by the Local Government Statute of 1993. In effect, this statute devolved some
political and administrative powers to local governments through the Local Council
system.229 Consequently, most of the components of the local council system were
incorporated and strengthened as provisions for decentralization in the constitution.230
3.2.2 The Legal Framework for Decentralization in Uganda
The constitution of Uganda, 1995, provides for a decentralized system of governance. In
order therefore for this to be in operation, the Local Government Act of 1997 was passed.
The 1997 Act devolved several political, administrative and fiscal powers to local
227
Fumihiko Saito, ‘Decentralization in Uganda: Challenges for the 21st Century,’ Socio-Cultural
Research Institute of Ryukoku University, Japan. Available at
<http://www.world.ryukoku.ac.jp/~fumis96/docs/ics2000.pdf accessed on 13 January 2014.
228
Ibid.
229
John Okidi and Madina Guloba, ‘Decentralization and Development: Emerging Issues from Uganda’s
experience.’ Economic Policy Research Center, Kampala, Uganda. Available at
<http://ageconsearch.umn.edu/bitstream/93810/2/op31.pdf > accessed on 13 January 2014.
230
The Constitution of Uganda, 1995, Chapter 11. Available at
<http://www.track.unodc.org/LegalLibrary/LegalResources/Uganda/Laws/Uganda%20Constitution%20(19
95).pdf> accessed on 13 January 2014.
51
governments, which comprise districts, city councils and municipalities.231 The main
objective of decentralization in Uganda according to John Okidi and Madina Guloba, was
the promotion of good governance through strengthening of local institutions and
improvement in service delivery.232 Uganda therefore has a legally mandated
decentralization based on the district as the sub-national unit of government. As in
Kenya, Uganda’s 1995 Constitution empowers sub-national governments to levy taxes to
generate their own revenues. With regard to resource transfers, districts receive
conditional and non-conditional grants, estimated to constitute over 80 per cent of sub-
national government expenditures.233
In addition, the unspecified grants, which are equivalent to the minimum 15 per cent
transfers provided for in the new Kenyan Constitution,234 are untied and spent at the
discretion of the local legislature.235 Sources of district revenue include graduated taxes,
licenses, user charges and producer taxes over which the sub-national governments have
the discretion to determine tax rates, but must consult with the Minister for Local
Government, a situation that affects their autonomy.236 Despite this requirement, Uganda
has demonstrated a commitment to devolution with checks and balances to promote
accountability, transparency and citizen participation. Three channels are used to enhance
accountability:
1. External audit by the Auditor General;
2. A formal system of Public Expenditure Tracking Surveys (PETS); and
231
Supra, note 227.
232
Ibid.
233
Supra, note 229.
234
Supra, note 34, Article 207.
235
Supra, note 229.
236
Supra, note 218.
52
3. Citizen involvement in which sub-national governments are required to integrate
participatory planning and budgeting based on national guidelines.237
In this regard, there is a requirement for the sub-national governments to engage
stakeholders who include the local leaders, the private sector and professionals. They are
to prepare ways and plans which must address local wishes and be consistent with
available resources.238 This planning is to ensure that there is mutual accountability
between the elected leaders and the public. However, mechanisms to apply this
accountability have been difficult to establish. To give meaning to the consultative
process, sub-national governments are required to prioritize their investments and to hold
district budget conferences early in the medium-term expenditure framework (MTEF)
process.239
Further, according to Njeru Kirira,240 district governments are reported to be fairly
autonomous, with powers to decide on and plan for the use of their own resources and
untied grants.241 There is, however, concern over the effects of conditional grants that
may limit flexibility and decision making at district level and, more importantly, create a
measure of unpredictability. As a result, conditional transfers pose the risk of potential
changes in resource flows.
Finally, Uganda, like other African countries, has assigned unproductive and
unsatisfactory taxes to the sub-national governments. Such experiences provide useful
237
Ibid.
238
Supra, note 218.
239
Ibid.
240
Ibid.
241
Supra, note 218.
53
background for Kenya and should be used to design a more effective model. For
example, if conditional transfers are used, the government should ensure that there are
funding mechanisms to finance operating costs once transfers stop. 242 Failure to provide
for such arrangements may pose problems with sustainability.
3.2.3 The Challenges Facing Decentralization in Uganda
In Uganda, the local government legislation has by far been clearly outlined in Uganda,
which furthermore is embedded in great detail in the Constitution. The local governments
manage approximately 25% of public expenditure and have wide-ranging service
delivery responsibilities.243 The system of local governance and service delivery in
Uganda exhibits a remarkable degree of devolution compared to other sub-Saharan
African countries. It has, for instance, one of the most devolved systems of human
resource management whereby local governments through their respective District
Service Commissions locally recruit their staff.244 Approximately 70% of all public
servants are in this manner locally hired and managed. On the other hand, with new
Constitutional amendments in 2006 that centralised slot of local governments’ Chief
Executive Officers, the abolishing of several local taxes in 2004, as well as a new
centralised system of payment of councilors, the government of Uganda has recently
moved towards re-centralization of the public service.245 The system of local government
242
Supra, note 218.
243
Steffensen, Tidemand and Ssewankambo, Decentralisation in East Africa, A Comparative Study of
Tanzania, Uganda and Kenya, Uganda Case Report, NCG, World Bank, 2004. Available at
<http://www.dege.biz/FINALSYNTHESISREPORTnovember.pdf> accessed on 13 January 2014.
244
Ibid.
245
Steffensen and Tidemand, Decentralisation in East Africa, A Comparative Study of Tanzania, Uganda
and Kenya, Syntheses Report, NCG, World Bank, 2004. Available at
<http://www.dege.biz/FINALSYNTHESISREPORTnovember.pdf> accessed on 13 January 2014.
54
has arguably also been weakened by introduction of unfunded added layers, including an
additional regional tier and continued creation of new districts.246
3.3 Decentralization in South Africa
3.3.1 Introduction
As provided in the Constitution of South Africa, 1996, the country operates a three-tier
unitary system that is regarded as one of the best on the continent. The three levels are
national, provincial and municipality. Just like in Kenya, the model does not subordinate
the municipality to the provincial, and the national government has the mandate to
coordinate sub-national governments.247
The powers of provinces are derived from the national constitution which limits them to
certain listed functional areas. In certain cases there is a concurrence between national
and provincial levels, while in others there are exclusive competences for each one. This
system is known as co-operative government.248
Besides, the creation of a provincial constitution is optional, if the province government
does not want do it rule additionally the national constitution.249 Ultimately, unlike the
majority of federal systems, South Africa has a single national court system, and the
administration of justice is the responsibility of the national government.250
246
Ibid.
247
SouthAfrica.info, ‘Provincial Government,’ available at
<http://www.southafrica.info/about/government/govprov.htm#.Ut-MhOUr-Z8> accessed on 13 January
2014.
248
Ibid.
249
Ibid.
250
Ibid.
55
In comparison, Kenya and South Africa’s constitutions have much in common. One such
feature is a devolved system of government.251 Power is shared in Kenya between the
central government and 47 counties,252 while in South Africa it is between the national
government, nine provinces and 278 municipalities.253 Both constitutions avoid the word
federal.
It can be argued that the design of the Kenyan constitution was greatly influenced by the
South African constitutional model of devolution. Conversely, there are a number of
differences; most outstanding is that Kenya has only one level government below the
national government while South Africa has two.254 There are also more technical
differences, such as the composition of the Kenyan Senate and South African National
Council of Province, differences that may have significant impact on their functioning.
In addition, in analyzing the points of agreement between the two constitutional systems,
one ought to be conscious of socio-economic and political differences. The political
landscape looks very different. In contrast to Kenya where President Uhuru Kenyatta
won with a hair’s breadth, in South Africa the African National Congress (ANC)
dominates, gaining 66 percent of the national vote, and is currently in control of eight of
the nine provinces, seven of the eight metropolitan municipalities and most of the others
as well.255
251
Chapter Eleven of the Constitution of Kenya, 2010, provides detailed provisions on devolution. The
same is seen in chapter six of the Constitution of South Africa.
252
Supra, note 34, at Chapter Eleven.
253
The Constitution of South Africa, 1996, at chapters six and seven.
254
Kenyan devolved system is divided into counties, while in South Africa; it is divided into Provinces and
municipalities.
255
In the recent general elections in Kenya that took place on 4 th March 2013, President Uhuru won the
election with less than 51% of the total votes cast. See also supra note 28.
56
Economically, South Africa is further developed and its demographics are different with
a much larger urbanized population. Yet, South Africa’s nearly 20 years of experience
with devolution may provide some useful lessons on how many common problems have
been tackled.256
3.3.2 The Justification of Devolution in South Africa
It is more than two decades when South Africa adopted a devolved system of
governance. A number of reasons led to the adoption of devolution in South Africa. At
the end of apartheid, the ANC advocated for a strong centralized government to undo the
depredation of apartheid. On the other hand, the National Party (NP), representing the
white minority government, advocated federalism because it feared a strong centre
dominated by the ANC.257 Federalism was never on the cards, because the idea was
poisoned by the apartheid policy of ethnic-based Bantustans, which although having a
measure of autonomy, were aimed to divide and rule the black majority. 258 The
concession was frail provinces which in one province, KwaZulu- Natal where clash was
widespread, served a peace making function, and in another, the Western Cape, provided
the NP with some spoils of government.259 Furthermore, to weaken provinces, a strong
system of local government was entrenched in the constitution, with the mandate to be
the service delivery arm of government. Because the ANC did not embrace the concept
256
Supra, note 245.
257
SLSA team, ‘The Politics of Decentralisation in Southern Africa,’ Future Agricultures Consortium
Policy Process Briefing for WDR, 2008, available at
<http://www.futureagricultures.org/EN/WDR/WDR_decentralisation_SLSA%20Team.pdf> accessed on 22
January 2014.
258
Ibid.
259
Robert Cameron, ‘The History of Devolution of Powers to Local Authorities in South Africa: The
Shifting Stands of State Control.’ (1995) Local Government Studies, Vol. 21. No. 3. Available at
<http://www.tandfonline.com/doi/abs/10.1080/03003939508433786?journalCode=flgs20#.Ut-zveVjRcs>
accessed on 13 January 2014.
57
of provinces, their continuity was placed in doubt, and this uncertainty negatively
affected their performance. The first lesson, then, is if devolution is to work effectively,
all relevant forces should be positively aligned to make it a success.260
Still, there has been an ongoing debate within the ANC to abolish the provinces.
However, this has proved very difficult to effect any change and now their existence is
accepted.261 The lesson to be learnt here is that once institutions are created, it is very
difficult to dismantle them.262 Although the original reasons for devolution may have
withered away, other reasons may take their place. At the moment the removal of
provinces from the political landscape will be very difficult if not impossible because a
whole political class has formed around provinces, living off the spoils of government.263
3.3.3 The Nature of Devolved Units
This question relates to the number and size of devolved units. There are similarities in
the problems faced by both Kenya and South Africa, but that the solutions have not been
the same. South Africa was conscious in drawing the provincial boundaries not to create
ethnic enclaves which would repeat the ethnic boundaries of the apartheid Bantustans.264
Thus, the point of delineation was fiscal clustering in local development areas. In recent
ANC policy documents, the call is to reform, rationalize and strengthen provinces by,
among other things, having fewer provinces which are functional, effective, economically
sustainable, integrate communities on non-racial basis and do away with ethnic
260
Ibid.
261
Ibid.
262
This point may be useful to the parliamentarians who are considering to table a motion in the national
assembly to do away with the sanate.
263
Supra, note 259.
264
Ibid.
58
boundaries. The redrawing boundaries to ensure non-ethnic provinces would be an
impossible task.265 Ethnic concentrations in devolved units cannot easily be avoided;
instead they could be useful safety nets for ethnic interests.266
At the same time as in Kenya, the link between the geographical size of a devolved unit,
its population size and poverty profile is also present in South Africa. The province with
the largest land mass, the Northern Cape, has the fewest people and one of the highest
rates of poverty, all typical of semi-desert rural areas. In the case of rural municipalities
without an economic base, they are largely dependent on national transfers as they cannot
generate the same income as large metropolitan municipalities.267 One lesson from South
Africa is that poverty and self-sustainability cannot be remedied by amalgamating two or
more rural municipalities; the poverty level remains the same and the new municipality
dependent on national transfers. However, attracting and retaining suitable skilled staff
remains a difficult problem because each municipality appoints its own staff and must
comply with national competency levels for key positions.268 South Africa has only
adopted in 2011 a system of secondment whereby the national government may provide
skilled staff on a temporary basis.269
Furthermore, just as in South Africa, Kenya will face the problem of the imposition of
exactly the same legal framework on provinces and municipalities despite the fact that
265
This has also been the case in Kenya. In drawing the demarcation of the county boundaries, the
Independent Electoral and Boundaries Commission went for 47 counties based on 1992 districts of Kenya.
266
Supra, note 218.
267
Supra, note 2.
268
Ibid.
269
Ibid.
59
they are vastly different in resources, skills and economic development.270 The legal
framework applicable to the metropolitan municipality of Johannesburg applies also to
the most remote rural local municipality. A metro is hamstrung by such uniformity, while
the rural municipality cannot comply with the rigors of the law. The current debate is thus
about developing a system within the confines of the constitution that would allow for
differentiation between municipalities.271
When discussing the character of counties, the problem of the exclusion of minorities and
marginalized groups has been raised in Kenya. Where there is one dominant ethnic group
in a county, it is likely to dominate the county assembly and executive to the exclusion of
minority groups. This is, of course, the consequences of the first-past-the-post system.272
3.3.4 The Structure of Devolved Units
It is clear from the two constitutions that the levels of government in the two countries
have the greatest differences. As indicated above, Kenya has two levels of government
while South Africa has three levels of government: national, provincial and local. In
South Africa, different categories of municipalities are provided for: metropolitan
municipalities, and outside such areas, district and local municipalities. The current 44
districts comprise of between three and nine local municipalities and perform a
coordinating function and sometimes a service delivery role.273 In Kenya, counties have
270
Martin Wittenberg, ‘Decentralisation in South Africa,’ (2003), School of Economic and Business
Sciences and ERSA, University of the Witwatersrand, Johannesburg, South Africa. Available at
<http://sticerd.lse.ac.uk/dps/decentralisation/southafrica.pdf> accessed on 22 January 2014.
271
Supra, note 257.
272
Juizi, ‘Kenya-South Africa Conference on Devolution.’ (2013) Multi-Level Initiative and Katiba
Instotute. Nairobi. Available at <http://www.mlgi.org.za/news-and-events/mlgi-and-katiba-institute-host-
201ckenya-2013-south-africa-conference-on-devolution201d-in-nairobi-2013-kenya> accessed on 25
January 2014.
273
Ibid.
60
the combined characteristics of South Africa’s provinces and municipalities, but not all
the powers of provinces nor their political or financial clout that comes with being only
nine.
Another difference is that Kenya went for a presidential system while South has a
parliamentary system. The electoral systems also differ: Kenya has the first past the post
system while South Africa has a proportional representation system based on party
lists.274 In South Africa this has meant very inclusive legislative bodies, but has
strengthened the iron hand of party bosses over their legislative representatives at the cost
of weakening the accountability of members of provincial legislatures to their voters.275
In practice the nature of the political parties is also very different. In Kenya it seems that
political parties are generally fragmented along ethnic lines with no clear political
ideology. In South Africa, the opposite is the case. The ANC is a national party and the
main opposition party, the Democratic Alliance, has national aspirations although its
support base is limited to minority groups. The two parties also differ sharply on ideology
on matters of economic policy.276
3.3.5 The Powers and Service Delivery of Devolved Units
In light of their constitutional design, both Kenya and South Africa have a lot of
similarities in the areas of the allocation of powers. Both systems work with the concept
of concurrent powers as well as exclusive powers for provinces and counties. 277 The
274
Supra, note 2.
275
Supra, note 2.
276
Supra, note 2.
277
John Mutakha Kangu, Operationalization of Devolution in the constitution of Kenya, available at
<http://www.strathmore.edu/pdf/mutakha-devolution-kenya.pdf> accessed on 14th November 2013
61
exercise of devolved powers is also subject to an enforceable bill of rights which includes
similar socio-economic rights.278 The experience of South Africa may thus be
appropriate.
Concerning the legislative mandate, the provinces have passed a very limited number of
laws. The reasons proffered have been limited technical capacity and political uniformity.
Even the Western Cape provincial legislature, which is in opposition hands, produced no
more than ten laws per year. In the field of concurrent powers, the standard pattern has
been for the national government to pass laws and for provinces meekly to accept their
role as mere implementers.279 This pattern is also to be found among municipalities, even
the metropolitan ones. Thus, having legislative competencies does not necessarily
translate into active legislatures.280
Next, the apparent demarcation of powers between the three levels of government has
been problematic. Without clarity where the duties of one level of government begin and
the other’s stop, there are cases of duplication281 or neglect.282 Most importantly, there are
no clear lines of accountability283. Intergovernmental relations structures and processes
are not always the best way of resolving these uncertainties. They often hide the question
278
Thomas N Kibua and Germano Mwabu, (eds) (2008), Decentralization and Decvolution in Kenya.
Available at <https://www.africanbookscollective.com/books/decentralization-and-devolution-
inkenya/Decentralization%20and%20Devolution%20in%20Kenya%20-
%20Introduction.pdf/at_download/file> accessed on 25 January 2014.
279
Supra, note 257.
280
This may provide a good lesson to county assemblies in Kenya. However, the past few months have
shown that the county assemblies have been actively in making laws, although some of those laws have
been controversial.
281
This is where two levels of government do the same thing.
282
This may arise where the two levels think the other is doing it.
283
It may not be a surprise to find that one level shifts blame to the other.
62
of who is responsible for what. It is a case of where everyone is responsible for
everything and no one is accountable for anything.284
Consequently, the distinctive blend of provinces and municipalities with listed
competencies and enforceable socio-economic rights, gives the courts an important role
in defining the devolved units’ powers and obligations. In the first instance, where a
provincial competence such as housing285 overlaps with the right of access to housing, it
becomes a concrete obligation. In the second instance, the South African Constitutional
Court has expanded the powers of municipalities, by saying that they, being the
government closest to the people, are responsible for the emergency housing of persons
evicted from private land, although housing is not their function. Finally, the
Constitutional Court has also imposed new enforceable obligations on municipalities and,
reciprocally, given residents the right to basic municipal services, which include at least
access to electricity.286
3.3.6 The Fiscal Allocation in the Devolved Units
Here, there are a lot of similarities between Kenya and South Africa. Both countries have
adopted a very centralized financial system for its devolved units. The national
government controls the major revenue bases. Unlike the counties, provinces have no
constitutionally entrenched taxing powers.287 Local government has, like the counties,
control of property taxes. Municipalities also generate income from selling services such
as water, electricity and sanitation. The result has been that while provinces only generate
284
Supra, note 257.
285
It is concurrent function of the national and provincial governments.
286
Supra, note 257.
287
Supra, note 257.
63
three percent of their revenue, local government is responsible for 70 percent of its
income. For the remainder of their income, provinces and municipalities are dependent
on an equitable share of the revenue raised nationally and conditional grants.288
In light of the above, some lessons may be drawn. First, the measure of accountability
that a devolved unit owes its residents is directly related to the amount of revenue it
collects from them. Since provinces receive almost all their revenue from the National
Treasury, their line of accountability is inevitably to the National Treasury. In contrast,
municipalities that are dependent on their residents for the bulk of their income are in
practice directly answerable to an active civil society. Second, when the revenue raised
nationally must be divided equitably among provinces and municipalities, the process
must be transparent, predictable and free of political favoritism or punishment. In this
South Africa’s independent Financial and Fiscal Commission289 has played a positive
role, showing a high level of expertise, independence, and integrity.290
3.3.7 Transition to the Devolved System
In implementing the new system of devolution in South Africa, considerable
administrative changes had to occur. Ten Bantustan administrations, four (white)
provincial administrations, three national administrations for whites, colored and Indians
had to be forged into nine provincial administrations. Over half of all the public servants
were employed in the illegitimate and discredited Bantustans and as part of the
constitutional agreement none of them would lose their job.291 This meant that these
288
Supra, note 257.
289
This commission is very similar to the Kenyan Commission on Revenue Allocation.
290
Supra, note 2.
291
Supra, note 257.
64
maladministered and corrupt administrations had to be accommodated in the new
provinces. It was a case where the Bantustan administrations absorbed the provinces in
which they were allocated, resulting in the continued maladministration and corruption.
The hard lesson to Kenya is that no new system comes with a clean slate; it is often
embedded in old structures and ethos which do battle with the new values and
structures.292
What has worked beneficially was the constitutional requirement that there should be a
single public service for the national and provincial government. Although national
legislation set the framework, provinces did the hiring and firing. Being part of one
public service obviously facilitate personnel movements between these two levels
through uniformity of pay scales easily transferrable pensions. Local government did not
form part of the single public service, and attempts have been underway for the past
decade to affect it; the cost is, however, prohibitive and this policy initiative has met with
stiff opposition from municipalities.293
The process of transition for local government was drawn out. After a transitional period
of six years fully fledged municipalities were elected only in 2000. The 842 transitional
non-racial councils were then reduced initially to 284 municipalities. This required a
massive reallocation of resources and personnel, and in many cases totally new
institutions had to be created. In addition, a new two tier system of district and local
municipalities outside the metropolitan areas had to be established. Although the law
required the districts to play the dominant role in service delivery, the existence of old
292
Supra, note 257.
293
Supra, note 257.
65
well-established local municipalities and an absence of unity of purpose at national level,
resulted in them never really coming to fruition. After 12 years, their abolition is now
under discussion. The lesson is again: existing institutions are resilient and a new system
is difficult to implement without all the role players working collectively towards one
goal.294
In Kenya the continuation of the provincial administration may be a similar case in point.
First, given the functions that counties must exercise, it cannot be business as usual for
the provincial administration. Where they are currently performing functions that fall in
the domain of the counties, both responsibility and resources, human as well as material,
must be transferred to counties. Second, the provincial administration cannot be seen as
an alternate and competitive government at county level, operating unlinked to county
administrations. The coordination of national functions at count level with country
administrations should be a joint effort; both the provincial and the county
administrations must consult with each other. A second lesson has been the slow process
of separating the dominant party from state institutions. After liberation, the deployment
of loyal cadres in key positions at all levels of government may have been necessary.
However, over time it became simply a system of patronage and nepotism, with the result
that the incompetent and corrupt are bringing the system to its knees. Rather belatedly,
the national government has enacted legislation in 2011, prohibiting political party
officials from holding senior administrative positions in municipalities, and introduced
competency qualifications.295
294
Ibid.
295
Supra, note 257.
66
3.4 Conclusion
As Kenya proceeds down the devolution path it may well worth its while to reflect on
other countries’ experience with this form of government. Given South Africa’s
experience over the past 20 years, Kenyans may want to consider some of the hard
lessons that South Africa has learnt as shown above. However, for Kenya to fully realize
the fruits of devolution, it should avoid going the Uganda way. In Uganda, there is a shift
from decentralization as was provided in the constitution to centralization. This is done in
constitutional amendments as demonstrated above. Following this path, Kenya will go
back to the old system where everything was done in Nairobi.

67
CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Conclusion
As discussed in this research paper the Constitution of Kenya, 2010 has given Kenyans
renewed hopes for a better and more prosperous Kenya that cares equally for all its
citizens, with a more democratic political system and a robust economy.296 This hope has
been made possible with architecture and design of the constitution which provides for a
devolved system of governance.297 It is for that reason that this paper has sought to
analyze the legal mechanism that has been put in place for the realization of a devolved
system of governance.
In light of the foregoing, this paper has attempted to introduce the concept of devolution.
Being a unique feature in the 2010 constitution, a better understanding of devolution has
been made possible by first looking at the historical background of the quest for
devolution in Kenya. The 1963 independence constitution provided for a bicameral
Parliament and regional governments. This was however short lived as by 1965, KADU,
the ‘small tribes’ party had voluntarily dissolved itself and enabled a constitutional
change to a centralized government.298 With this came a centralized government till
August 4, 2010 when Kenyans approved the current constitution in a referendum.
296
Supra, note 1.
297
Article 1 (4) of the Constitution of Kenya, 2010 provides that the sovereign power of the people shall be
exercised at the national and county levels of government. In addition, Chapter Eleven of the constitution
has a broad provision for a devolved government.
298
Supra, note 8.
68
Devolution as a concept entails bringing the government closer to the people. It is a
system whereby apart from the national government; there is a local government which is
much closer to the people. It is this government that is responsible for the day to day
running of the affairs of the people. Further, this system ensures that there is a transfer of
public functions from the central government to local governments. 299 This may include
the transfer of responsibility for the planning, financing and management of certain
public functions. Indeed, this can be categorized as administrative decentralization.300
In addition, devolution comes with certain political decentralization which is aimed at
enhancing accountability in service delivery. This may involve creation of certain
political offices such as the office of the Governor, the County Assembly, as well as the
Senate. In regards to the 2010 constitution of Kenya, this is aimed at ensuring the smooth
running of the county governments.
In the same way, there is fiscal decentralization. This is the transfer of the financial
resources from the national government to the county government. This has been made
possible by granting the county governments with the power to raise taxes. It gives the
county governments a sense of independence as it can be able to undertake certain
development projects it deems fit.
As a result, the above conceptual analysis created a better ground for understanding the
legal mechanism for devolution in Kenya. It is now clear that a lot has been done by the
government to ensure that the constitution is fully implemented and in particular
devolution. The parliament has made a good progress in enacting various pieces of
299
In Kenyan case, it is the transfer from the national government to the county governments.
300
Supra, note 14.
69
legislations including; the County Government Act 2012, the Transition to Devolved
Government Act 2012, Public Finance Management Act 2012 and the Intergovernmental
Relations Act 2012. These statutes have been well discussed in chapter two.
Having started a journey towards devolution, some lessons from other jurisdictions were
necessary. A study on Uganda revealed that there was a good start in the implementation
of decentralization as provided in Uganda’s constitution. However, this progress has
since been frustrated by the government. The current trend in Uganda reveals that there is
a tendency by the government to make certain amendments to the decentralization laws
that would see the country move gradually towards centralization. This trend should not
be adopted by Kenya. Kenya should strive as much as possible to fully achieve the spirit
of the constitution.
In addition, a comparative study between Kenya and South Africa showed that both
countries have a lot in common. To some extent, both countries can be argued to have a
similar constitution. It can be therefore argued that the drafters of the Kenyan constitution
borrowed a lot from South Africa. When it comes to devolution, the only difference is
that Kenya has only one level of government bellow the national government, while
South Africa has two tiers bellow national government. However, despite this difference,
there are a lot of lessons to be learnt from South Africa. This has been discussed at great
length in chapter three.
In conclusion, in order to realize the benefits of the Constitution of Kenya, 2010 and thus,
meet the high expectations of Kenyans, there is an urgent need for all those involved in
the implementation of the said constitution to display the highest standards of trusteeship
70
and stewardship. However, many challenges are also likely to emerge especially those
relating to the implementation of devolution as required by the constitution. For this and
other challenges, the current reform agenda and pace must be maintained and enhanced,
through effective devolved governments, in order to deliver positive changes for all.
Since devolved governments will be closer to the people and, with resources to deliver
services, there is no reason why people should not see immediate positive changes
particularly through their active participation in decision making.
As we move forward we should all accept that devolution of power and resources has
given us a window of change to address the challenges of development that our post
independence history has gone through, it offers us an opportunity to empower our
people to participate in their own development and thus shift the paradigm from
nationally directed investments to people driven development.
As well expressed in this research paper, Kenyans have entered into a new constitutional
and political dispensation. On their part, all those who aspire to be leaders in this new
dispensation must rethink, reevaluate and restructure their leadership strategies. Without
all of us committing ourselves to the ideals of Kenyan constitution and potential benefits,
we are likely to derail the realization of the many promises in the Constitution and thus
increase anxieties and frustrations amongst the people. To avoid the generation of mass
frustrations and resentments let all be guided by the words of our national anthem and in
particular, ‘service be our earnest endeavour and our homeland of Kenya, Heritage of
Splendor, Firm may we stand to defend.’301
301
Supra, note 34, Second Schedule (b) National Anthem, second stanza.
71
The Constitution of Kenya, 2010 affirms one nation, organized 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. This being the unique form of devolution that Kenya has adopted, the
previous chapters of this research paper discussed in greater details the architecture,
design and operation of devolution as envisaged in the Constitution of Kenya, 2010. They
make policy recommendations and legislative proposals on how best to implement the
system.
Therefore, the Constitution of Kenya, 2010 has sought 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. 302 With devolved
governments, Kenya is on the road to a highly developed nation as well as a major
economic hub among its neighbors. May all the leaders and people in authority abide by
the word of the preamble to the constitution and various provisions thereunder to achieve
this great ideal, devolution.
302
Supra, note 1.
72
4.2 Recommendations
4.2.1 Implementation of the Constitutional Provisions on Devolution
At this juncture, it is clear that devolution is one of the unique features of the Constitution
of Kenya, 2010. This is because the type and form of devolution prescribed by the
Constitution completely revamps the structure of the Kenyan State and its governance
systems.303 Indeed, this finding makes implementation of devolution a challenge in many
respects. It is towards pro-actively addressing these challenges and successful realization
of the devolved system that this research paper has sought to address.
It is in this regard that this research paper has appreciated that whereas some progress had
indeed been made in the implementation of the Constitution generally, there are genuine
concerns specific to transition to devolved governments whose cumulative effects
undermine implementation of the Constitution. However, this paper appreciates that
much progress has been registered in a number of areas, as highlighted in the previous
chapters above. These include:
1. Passing of facilitative statutes such as; the County Governments Act, 2012, the
Transition to Devolved Government Act, 2012, the Intergovernmental Relations
Act, 2012, the Urban Areas and Cities Act, 2011 and the Public Finance
Management Act, 2012, among others;304
2. Establishment of the Transitional Authority to commence its work as stipulated
by the Transition to Devolved Government Act, 2012; and
303
The constitution of Kenya, 2010 came up with a devolved system of governance unlike the former
regime whereby Kenya had a centralized system of governance. This has been well discussed in the
previous chapters.
304
These legislations have been discussed in detail in Chapter two above.
73
3. The design and rolling out of the Kenya National Integrated Civic Education
Programme which focuses on Constitution Education, and the Transitional
Authority's determination to deliver on Transition Education on the Devolved
System (TEDS) specifically.305
It can however be noted that a number of issues have not been addressed. Still, some new
challenges have come to play. Of grave concern include; the rise in insecurity across the
country,306 increasing industrial action by segments of Kenyan workers for better pay and
work conditions; existing bulk of legislations critical to the implementation of the
constitution, which remain to be enacted; watered down legislations like the Urban Areas
and Cities Act, 2011. The Transitional Authority remains underfunded, ineffective and
yet to be seen doing work; lack of civic awareness on devolved governance and general
civic education on the constitutional provisions on devolution; and dizzying
preoccupation by political parties with ascension to power through ethnic based
alliances.307
In light of the above observation, the following recommendations are made:
1. The issue of insecurity is of critical concern. Both the national and the county
governments need to act swiftly on this. This should include independent
investigations by relevant agencies like the Transitional Authority, the Kenya
National Commission on Human Rights (KNCHR) and Civil Society
Organizations to establish a sense of stability in the otherwise shaky area. Further,
305
Supra, note 47.
306
There is a critical concern over the civil wars in the northern part of Kenya. In addition, there is an
increase in cases of cattle rustling among the nomadic communities in the country. Still, there is an
imminent threat of terrorism in major cities and towns. This needs a urgent reorganization and restructuring
of the security department by both the national government and the county governments.
307
KPMG, ‘Devolution of Healthcare Services in Kenya: Lessons Learnt from other Countries,’ (2013)
available at <http://www.kpmg.com/africa/en/issuesandinsights/articles-publications/pages/devolution-of-
healthcare-services-in-kenya.aspx> accessed on 25 January 2014.
74
the government should seek regional and international assistance to aid areas
where the government is incapacitated. Further, the national government and the
county governments should in the spirit of Article 6 (2) of the constitution of
Kenya, ensure that all the cases of insecurity in the country are eliminated.308
2. The passing of important statutes to facilitate availing of resources to county
governments as requested by the Commission on Revenue Allocation should be
expedited. In this regard, the National Assembly should demonstrate the highest
sense of patriotism by creating time to enact the requisite legislation. Both the
houses of the parliament should avoid the supremacy battle on going between
them and undertake to fully implement the constitution as required.
3. The Transitional Authority needs should be adequately funded to enable it
discharge of its mandate on timely basis. In particular, the working relationship
between the Authority and the Inter-Ministerial Committee on Devolution should
be streamlined and any injurious duplicitous seams removed.309
4. Considering that devolution is one of the key determining areas with regards to
the last General Elections, all the political parties as well as the government
should take clear position on devolved governance. In particular, the coalitions
that formed the government and the one that formed the opposition should tell
Kenyans upfront what policy they have for the devolved system of government.
308
Article 6 (2) states as follows; ‘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.’
309
Supra, note 47.
75
5. The transition from the central government310 to the envisaged national
government under the Constitution together with the transfer of functions to the
counties should be secured in appropriate legislation. The Transitional Authority
should be placed at the centre of restructuring of the government system for the
establishment of the national and county governments. This is particularly the
case with restructuring of the system of administration previously known as the
Provincial Administration.311 In undertaking this exercise, there must be adequate
public consultations to comply with the principle of constitutionalism. The
National Government Coordination Act, 2013 therefore needs to be publicized for
purposes of assuring sufficient and adequate consultations; and
6. Although the Public Finance Management Act has been enacted, there are still
certain gaps which, if left without clarification in the initial stages, may lead to
confusion. Key among these is the role of the Senate as the guardian of County
Governments.
4.2.2 Entrenched Involvement in County Strategic Plans
The development plans in the counties should be prepared using views 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.312 The Constitution of Kenya,
310
The transition from the central government to a devolved government begun immediately after the 4 th
March 2013 general election. This saw the formation of county governments as is envisaged in the
Constitution of Kenya, 2010.
311
Attempts have been made in restructuring the Provincial Administration. This has been made possible
by the appointment of the county commissioners to be a link between the county governments and the
national government.
312
Mutakha Kangu, A Report on the Implementation of Devolved Government in Kenya. (2011).
76
2010 provides that it is the duty of the County Assembly to receive and approve plans
and policies for: (a) the management and exploitation of the County’s 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.313
313
Supra, note 313.
77
4.2.3 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. 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.314
4.2.4 Legislative Proposals
A call should be made to the senate, National Assembly, county assemblies, political
parties, civil society organizations and professional women caucuses to take deliberate
steps towards ensuring that women, youth, people with disabilities, minorities and other
marginalized groups to be adequately protected pursuant to article 56 of the Constitution
of Kenya, 2010. In this regard, the parliament should enact a legislation to give effect to
the constitutional provision. According to Mutakha Kangu, this legislation should be the
Minorities and Marginalized Communities Act.315 Accordingly, the Act should strive to
define minorities and marginalized communities, consolidate the benefits accorded to
314
Supra, note 313.
315
Supra, note 47.
78
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 such as; 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. With these in place, Kenya will better if not fully
realize the fruits of devolution.

79
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THE LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA

AYUO DAVID OCHIENG

A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF

MOI UNIVERISTY, ELDORET

AYUO DAVID OCHIENG ……………….. Date: ....................

SUPERVISOR SIGNATURE Date....................

PROF. SIFUNA ………………..

Appreciate Moi University’s administration for creating a peaceful environment for

3.2 Decentralization in Uganda ......................................................................................50

Devolution as a new phenomenon was introduced by the Constitution of Kenya, 2010. It

In implementing devolution, the stakeholders concerned must go back to the constitution.

ANC- African National Congress

CEDA- Convention on the Elimination of All Forms of Discrimination

KADU- Kenya African Democratic Union

KANU- Kenya African National Union

KNCHR- Kenya National Commission on Human Rights

NP- National Party

TEDS- Transition Education on the Devolved System

UN- United Nations

UNDP- United Nations Development Program

Public Finance Management Act, 2012

The County Government Act, 2012

The Constitution of Kenya, 2010

The Constitution of South Africa, 1996

The Constitution of Uganda, 1995,

The Intergovernmental Relations Act, 2012

The United States Constitution, 1787.

Transition to Devolved Government Act, 2012

The turmoil in Kenya’s economy coincides with implementing the constitutional

service delivery, citizen engagement, and so deliver on Kenyans’ expectations of

part of this work is the county governance and decentralization.

contemporary world which is governance1, it is believed that decentralization is seen as a

Decentralized governance is increasingly being favored by many African

Kenya in 2010 is based on democratic and development values such as empowerment,

citizens’ participation, stability, transparency and accountability. Decentralization is a

deconcentration.5 In an attempt to have absolute and flourishing decentralization process,

Consequently, political decentralization can be understood to refer to either or both of the

representatives from central governments to local governments, and second, it entails

central governments to local governments and communities.6

1.1 Historical Background of Devolution

In terms of modern public administration, historically African countries have experienced

practiced in a highly centralized manner.7

to forty seven counties, in a sense a return to the constitutional fiscal decentralization

provided for at independence in 1963. At the Lancaster House, London, constitutional

Kenya’s European settlers to successfully demand decentralized governance as a

Parliament and regional governments. By 1965, however, KADU had voluntarily

dissolved itself and enabled a constitutional change to a centralized government. Into

independence, however, it became apparent that – in the context of an exceedingly

pressure to undertake a people-driven, comprehensive review of the constitution

from some of the mechanisms of achieving constitutionalism.11 The product of two

decades of endeavor is the Constitution (2010), which provides for devolution.

decentralization of powers to lower county governments. The decentralization of power is

constitutionalism, democracy, separation of powers and power sharing.12

concept of devolution of political and economic power to forty seven newly-created

When governments devolve functions, they transfer authority for decision-

resources to consolidate their hold on to the political power through patronage.14

On contrary, scholars have advanced political and economic rationales in support of

theoretical basis for devolution and other frameworks of decentralization. Political

decentralization enhances democracy by bringing government closer to the citizens.

Second, by establishing different tiers of government, decentralization provides

implementation as far as political decentralization is concerned. Further, this work will

enforcement to be put in place.