CUEA CLS 122

CONSTITUTIONAL LAW 2

DEVOLUTION IN THE COK 2010

 Case Law
• Parliamentary oversight over County Governments
• Council of Governors & 3 others v Senate & 53 others Petition 381 & 430 of 2014 [2015] eKLR
(High Court)(10th July 2015
• Council of Governors & 6 others v Senate Petition 413 of 2014 [2015] eKLR (High Court)(4th
June 2015)
• Division of Revenue/Bills Concerning Counties
• In the Matter of the Speaker of the Senate & another Advisory Opinion Reference No. 2 of
[2013] eKLR
• Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba
Institute & 2 others (Amicus Curiae) SC Reference No 3 of 2019 [2020] eKLR
• Bills Concerning Counties
• Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another;
Attorney General & 7 others (Interested Parties) [2020] the High Court of Kenya
• Parliamentary ‘Oversight’ over County Legislation
• County Government of Kiambu & another v Senate & others Constitutional Petition No. 229
OF 2015 [2017] eKLR
 Case Law
• Public Participation in County Governance
• Robert N. Gakuru & Others v Governor Kiambu County & 3 others [2014] eKLR
• Dismissal of CECs
• Tom Luusa Munyasya & another v Governor, Makueni County & another Cause Number 103 OF 2014(NRB)
[2014] eKLR September 2014
• Richard Bwogo Birir v Narok County Government & 2 others Industrial Court Petition NO. 1 OF 2014 [2014]
eKLR Nakuru
• County Government of Nyeri vs Cecilia Wangechi Ndungu CA No 2 of 2015(Nyeri) 18th March 2015
• Eunice Jepkoech Siria v County Secretary,Uasin Gishu County ELRC Cause No. 4 OF 2016 (KSM)[2017] eKLR
22nd September 2017
• Dismissal of County Public Servants
• David Ogega Kebiro & another v Kisii County Public Service Board & another Cause No. 389 OF 2017(KSM)
[2017] eKLR 19th October 2017
• Impeachment
• Martin Nyaga Wambora v County Assembly of Embu & 37 others CIVIL APPEAL NO. 194 of 2015 [2015]
eKLR (CA)
• Justus Kariuki Mate & another v Nyaga Wambora & another [2017]eKLR Petiton 32 of 2014 (Supreme
Court)
 The concept of devolution
• Devolution is a form of decentralization. It is simply defined as
the process of transferring decision-making and
implementation powers, functions, responsibilities and
resources to legally constituted, and popularly elected local
governments
• ICJ Handbook on Devolution 2013

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 The concept of devolution
• Devolution is a form of decentralization
• It is a form of vertical distribution of power
• It is a statutory distribution of power
• It can be entrenched in the constitution or
provided for in ordinary legislation

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 The concept of decentralization

• It is the vertical distribution of power, functions and

responsibilities and resources of government
• It distributes power, functions and responsibilities and
resources from national to sub-national levels of government
• It is to be contrasted with separation of powers which is a
horizontal distribution of the powers functions and
responsibilities of government into legislative, judicial and
executive functional arms

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 The concept of decentralization
• Decentralization 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.

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 The concept of decentralization
Forms of decentralization
1. Deconcentration
2. Delegation
3. Devolution
4. Federalism

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 The concept of decentralization
• Deconcentration, devolution and delegation are all types of
decentralization, yet they describe relationships with very different
consequences.
• Deconcentration refers to passing authority to a field office of the
central government
• Devolution provides local bodies with authority to make decisions.
Devolution provides local bodies with autonomy and weakens the local
authority of the central government.
• Delegation is the granting of authority to an autonomous agency in
which the central government maintains some power to affect the
agency through appointments . (Leonard 1982)
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 Deconcentration

• This is an administrative decentralization through the

transfer of power to local or regional administrative offices
of central government.
• A central government can organize itself by pushing decision
making powers down within its own hierarchy.
• A government department may have regional offices and
regional officials may be given a wide discretion.
• The officials are accountable to the central government and
not the people in the region that they serve
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 Delegation

• This is the transfer of responsibility for specifically defined

functions to subnational units outside the central government
• The units function under the control and direction of the
central state
• Central government can withdraw delegated authority

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 Devolution
• ‘a devolved system involves the creation of two or more
levels of government that are co-ordinate, but not
subordinate to each other. None of the levels of
government is a mere agent of the other. Each is created
and protected by the constitution, with the functions and
resources to be used for their discharge being set out and
defined by the constitution’
• (ROK Vol 1 2011 )

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 Devolution
• There are two approaches to the organization of governance
and management of state power
1. The single-dimensional approach which follows a horizontal
dimension of organizing government and state power
2. The multi-dimensional approach which organizes and
manages governance along multiple lines
• (Mutakha Kangu 2011 )

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 Devolution
• The single-dimensional approach produces a unitary system
of government whose hallmark is concentration and even
personalization of power
• The multi-dimensional approach combines the horizontal
and vertical dimensions and leads to a decentralized or
devolved system of governance. Its hallmarks are de-
concentration dispersal and diffusion of power vertically and
horizontally
• (Mutakha Kangu 2011 )

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 Devolution
• Devolution is one of the many ways of decentralizing government
• It distributes and divides
1. powers
2. responsibilities and
3. resources
• Between national and sub-national levels of government
• The levels are separate, distinct but interdependent

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 Approaches to decentralization
1. Political Decentralization
2. Administrative Decentralization, and;
3. Fiscal Decentralization

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 What is Decentralized?
• Political decentralization entails transfer of decision-making
powers
• Administrative decentralization is the assignment of
administrative functions and responsibilities
• Fiscal decentralization involves the delegation of spending
responsibilities, and some revenue raising powers to sub-
national governments. (IEA 2006)

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 What is Decentralized?
• A cardinal principle underpinning devolution is the need to
decentralize administrative, financial and political power to
the local level in order to enhance the efficiency and
effectiveness of government.
• RTFD 2011

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 What is Decentralized?
• In devolution there must be a transferring the power and
authority for making
1. Social,
2. Political and
3. Economic
• Decisions from central governments to local governments and
communities
• (Kauzya 2007)
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 Distribution of authority
• The distribution of authority may take three different forms
1. Concurrent : The different levels are assigned the same power
function and responsibility
2. Exclusive: Power functions and responsibility given to a level
to the exclusion of all other
3. Residual: Any power that is not specifically enumerated given
to a specific level

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 Symmetric and asymmetric devolution
• This deals with the pace of implementation of devolution
• Symmetric- The devolution is implemented at the same pace
across all the devolved units
• Asymmetric-The devolution is not implemented at the same
pace.

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 No Shared Meaning: The great divide

Which one are

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 Previous experiments with decentralization
Provincial
administration

1963
Majimboism

State
corporations

Local
authorities

District Focus
for Rural
development

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 The rationale for devolution
• There is a necessary and critical link between
democracy and accountability on the one hand
and decentralization on the other hand
• (www.clarionkenya.org/documents/
ancp_devolution.pdf

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 The rationale for devolution
• A decentralized government allows greater citizen
participation in local development and permits the
government to respond quickly to local needs
• RTFD 2011

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 The rationale for devolution?
• Devolution is the form of decentralization popularly
considered most beneficial to development.
• The logic is that bringing decision making closer to the grassroots
will promote development.
• This will improve its applicability to local conditions, remove
options for corruption, and improve accountability to beneficiaries.
• Development needs 'flexibility, accommodation, adaptability and
learning' which do not exist in a centralized blueprint approach
• (Wunsch et al 1990)

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 Why devolution?
• Objects of Devolution
1. To promote democratic and accountable exercise of power;
2. To foster national unity by recognizing diversity;
3. 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
4. To recognize the right of communities to manage their own affairs and
to further their development;
5. To protect and promote the interests and rights of minorities and
marginalized communities
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 Why devolution?
• Objects of Devolution –Article 174 CoK 2010
6. To promote social and economic development and the provision
of proximate, easily accessible services throughout Kenya;
7. To ensure equitable sharing of national and local resources
throughout Kenya;
8. To facilitate the decentralization of State organs, their functions
and services, from the capital of Kenya; and,
9. To enhance checks and balances and the separation of powers.

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 Principles of Devolved Government
• (a)county governments shall be based on democratic principles
and the separation of powers;
• (b) county governments shall have reliable sources of revenue
to enable them to govern and deliver services effectively; and
• (c) no more than two-thirds of the members of representative
bodies in each county government shall be of the same gender.

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 Advantages Of Devolution
1. Makes governments more responsive
2. Facilitates participatory decision making
3. Brings the government closer to the governed
4. Accommodates and manages social diversity
5. Is an antidote to concentration of power

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 Problems With Devolution
1. Can promote ethnicity and undermine nationhood
2. Can lead to exclusion
3. Can compound marginalization of minorities
4. Can inflate religious and cultural diversities
5. It can lead to decentralized authoritarianism
6. Can lead to separatism secession

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 Problems With Devolution
7. It can lead to transfer of power and responsibility to
economically unviable units
8. It may unnecessarily duplicate roles
9. It can create rigidity and slow down decision making
processes

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 Decentralization in the CoK 2010
• All forms of decentralization, save federalism are provided for
• The focus has been on devolution but the constitution provides
for or anticipates the other forms of decentralization
• The constitutional structure of governance is based on the
principle of ‘subsidiarity’, let government power reside at the
lowest level feasible

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 Decentralization in the CoK 2010
• Devolution Article 1 2 6( 2) 176
• Delegation and deconcentration Article 1 6 (3 ) 176 (2) 187
• Article 1 direct ( participatory ) and representative democracy
• Schedule 4 Allocation of functions
• Schedule 5 Consequential legislation
• Schedule 6 Transitional provisions
• Underlying the different forms of decentralization is the
principle of subsidiarity
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 Devolution in the CoK 2010
• It creates separate and distinct levels of governance.
• No level is superior to or subordinate to the other
• It creates interdependent, not independent units
• It results in two levels of government, occurring simultaneously

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 Devolution in the CoK 2010
Sovereignty at two levels
Separate and distinct not subordinates or mere agents
Interdependent not independent
Corporation support and consultation not orders from above

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 Devolution in the CoK 2010
Distribution of functions between the national government
and the county governments
Conflict of law provided for. There are times when county
legislation will prevail
Dispute resolution system that decrees ADR Arbitration before
judicial proceedings. But the courts, not either level of
government has the last word on disputes

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 Types of functions
• Concurrent
• Residual and
• Exclusive authority

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 Our idea of devolution
• Multiple Perceptions on devolution
• Unstated, understated and overstated fears.
• Recognise that there are different types of decentralization in
the CoK 2010
• Manage expectations on devolution
• Need for terminological exactitudes

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 Pressure to centralize
• Desire of national government to control planning and
development
 This is an instinctive attitude for all governments. Devolution is a simple
straight forward prescription for governance issues and development woes
in developing countries .
 But it has very significant political consequences.
 It has the potential of developing new leaders and potential opposition in
local areas
 Many governments in developing countries are therefore understandably
wary of devolution . They therefore prefer deconcentration to devolution
• Galvin (1999)
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 Prerequisites for devolution
• There are two categories of prerequisites for a devolved system
of government .
• The two categories are closely intertwined.
• They interact in a complex manner and care should be taken to
ensure they compliment and reinforce rather than each other
• The two categories are ;
1. Structural prerequisites
2. Societal prerequisites

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 Prerequisites for devolution : Structural

1. Supreme written and rigid constitution

2. Clearly delineated lines of authority (exclusive, concurrent and
residual
3. Inclusive measures
4. Interdependence and non-subordination
5. Clear and unambiguous rules on resource generation and
allocation
6. Constitutionally entrenched system of cooperative government
7. Effective and efficient conflict resolution mechanisms
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 Prerequisites for devolution : Societal
1. Strong democratic ethos
2. Respect for constitutionalism and rule of law
3. Non centralization as a principle of all decision making organs
4. Open political bargaining as the approach to decision making
5. A constitutionally entrenched value system

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 Challenges Of Devolution
• Not to be seen as panacea to problems of authoritarianism and
mismanagement
• Proximity of government does not of itself make government efficient
and accountable
• Government at any level is susceptible to corruption
• It raises concerns on whether it will be viable in the long-term
considering that some of the existing districts simply will not be able
to finance it, and;
• More affluent units might not be willing to “subsidize”, as it were,
democracy in the poorer regions of the country

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 Characteristics of devolved units
• The devolved units must be politically and economically viable
• The regions must not be so big as to create a sense of
separateness and independence
• As much as possible homogeneity should be achieved
• The regions must not be too few as this encourages conspiracy
and ganging up

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 Designing A Good Devolution Structure
• The center must remain the center of political and
economic gravity
• There should be provision for exclusive and concurrent
competencies
• In concurrent competencies the center must retain
primacy
• Matters of local concern should be reserved for the regions
• But the center should have some concurrent participation
in matters that can foster loyalty even if of local concern

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 Designing A Good Devolution Structure
The center must be given competencies in areas that directly
impact on the lives of the citizens so as to foster loyalty to
the center
There should be provision for mutual consultation
Proportionality and Subsidiarity should be observed
Interdependence not subordination should be encouraged
A conscious and deliberate effort to promote national unity is
a must

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 Conflict Resolution

• Tensions are inevitable. It is therefore important to be clear on

the distribution of power.
• Vague and ambiguous allocation of power, functions and
responsibilities are a recipe for eternal infighting
• The repository of residual power must be clear
• The repository of emergency powers must be clear
• There must be an effective and efficient conflict resolution
mechanism.
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 Devolution: Nation and State
• In an ideal situation the two should coincide
• Africa's history leaves little room for the coincidence of the
two
• A conscious and deliberate effort must be made to create a
sense of belonging and common destiny for the diverse social
groupings in African countries

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 Devolution: Nation and State
• The primary aim of constitutionalism must be the
preservation of the state
• Devolution as a key component of constitutionalism must
preserve the state
• This is only possible where there is stability
• Stability is not possible where there is a competition for scarce
resources
• Perhaps scarcity of resources is the greatest enemy of unity and
the perfect justification for decentralized structures

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 Devolution: Nation And State
• Decentralization arguably minimises domination, marginalisation,
abuse of power and domination
• Decentralization arguably translates to an equitable distribution of
resources
• Decentralization should translate to broader participation in
governance and a sense of belonging
• Shared governance and shared institutions lead to a sense of
interdependence
• Decentralization should, by recognizing diversity, paradoxically lead
to a greater potential for unity

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 Consequential legislation
1. Transition to Devolved Government Act
2. County Governments Act
3. Inter-governmental Relations Act
4. Urban Areas and Cities Act
5. Public Finance Management Act

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 County Government Act 2012
• Objectives (Sections 1, 3)
– county governments' powers, functions and responsibilities
– Removal of County Assembly Speaker
– Nomination, powers, privileges and immunities of the County
Assembly
– Provide for public participation
– Provide for the County Public Service

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 County Governments Act 2012
• Institutions
– County Assembly Service Board
– County Secretary (Head of County Public Service)
– County Chief Officer (County PS)
– Decentralized Units (Sub-County, Ward, Urban Areas, Village
Units/Councils)
– County Public Service
– County Planning Unit
– Citizens Service Centre
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 County Governments Act 2012
• Processes
– County Symbols: flag; coat of arms; seal [S 4]
– Power to establish county parastatals and PPPs [ S6 (3); (5)]
– Right to petition the County Assembly [S15]
– Legislative Practice of County Assembly [S14-S25]
– Recall of County Assembly Members [S26-S29]
– Removal of a Governor [S33-S34]
– Appointment of County Executive [S35]
– Suspension of a County Government
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 Urban Areas and Cities Act 2011
• Objective
– Classification of Urban Areas
– Governance and Management of Cities
– Participation of residents
• Institutions
– City/Municipality Board
– Citizen Fora
– City/Municipal Manager
– Town Administrator
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 Public Finance Management Act 2012
• Objectives
– Management of Public Finances at County Level
– Oversight by the County Assembly
– Responsibilities of County Government Entities
• Institutions
– County treasury
– County Budget and Economic Forum
– Intergovernmental Budget and Economic Council

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 Inter-Governmental relations Act 2012
• Objective
– Inter-governmental relations; transfer of functions; conflict resolutions
• Institutions
– Summit
– Council of Governors’
– Technical committee
• Processes
– Summit Report
– Council of Governors' Report
– Dispute resolution requirement
– Transfer of Functions
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 Transition to Devolved Government Act 2012
• Objectives
– Provide a co-ordinated framework for County Government functions
– Facilitate the functions of the Commission on the Implementation of the
Constitution
• Institutions
– Transition Authority
• Processes
– Transition Implementation plans from National Government entities
– Request for functions by County Governments
– Act lapses three years after elections
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 County Government Amendment Act No. (3) 2014 & No.
(2) 2013
• Objectives
– Creation of new offices in the County Governments
– Creation of new County Executive Institutions
• Institutions/offices
– Election of a Deputy Speaker to the County Assembly
– County Development Boards (Declared Unconstitutional)

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 Government Coordination Act 2013
• Objectives
– Facilitate exercise of executive authority by the President
– Create service delivery units for National Government Services
• Institutions
– Committees of Principal Secretaries
– Service Delivery Co-ordination Units
– Recruitment of national government administration officers
– Conflict resolution between National Government and County
Government officers
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 Concluding remarks
• Even before the CoK 2010 we had many examples of decentralization
such as the provincial administration, fiscal decentralization through
LATF, CDF , Constituency Road Development Fund, Constituency Bursary
Funds
• The case for shifting the focus of service delivery and bringing
government closer to the people, and broadening the participation of
stakeholders in governance is difficult to resist

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 Concluding Remarks

• Devolution is like democracy, it is no panacea for governance

problems, It cannot solve all our problems
• It has advantages and disadvantages challenges and dangers;
• But compared to the alternative of centralization, it begins to
look like a real saviour, just what the doctor prescribed for
‘Patient Kenya’

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 Bibliography
1. John-Mary Kauzya, Political decentralization in Africa: experiences of Uganda, Rwanda,
and South Africa
2. Degonsa 2011 Kenya: A Citizens’ Handbook on Key Principles of devolution.
3. Mutakha Kangu, Operationalization of devolution in the constitution of Kenya. A
Presentation at a workshop held at Strathmore Business School on the 22nd March, 2011
4. ANCP document on devolution www.clarionkenya.org/documents/ancp_devolution.pdf
5. Leonard, David (1982) Institutions of Rural Development for the Poor: decentralization
and organizational linkages. Berkeley: Institute for International Studies
6. Mary Galvin ,The Impact of Local Government on Rural Development in South Africa.
Transformation 40 (1999) ISSN 0258-7696
7. Republic of Kenya Volume I: A Report of the Task Force on the Implementation of
Devolved Government in Kenya 2011

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