TABLE OF CONTENTSTITLE PAGE NUMBER

ABSTRUCT 2INTRODUCTION 3 - 6

a) Understanding devolution 3 - 6b) Reasons for change 3 - 6i) Arguments for devolution 3 - 5ii) Arguments against devolution 5 - 6

HISTORY OF DEVOLUTION 6 - 9

a) IN KENYA 6 - 7b) IN EUROPE 7 - 8c) IN RWANDA 8 - 9d) IN ZIMBABWE 9

GOVERNMENT STRUCTURE 9 - 15

a) THE EXECUTIVE 10b) THE JUDICIARY 11c) THE LEGISLATURE 11 - 13i) NATIONAL GOVERNMENT 11 – 13ii) COUNTY GOVERNMENT 13 - 14

INTERGOVERNMENTAL STRUCTURE 14 - 15

OTHER RELEVANT BODIES 15

TRANSITION AUTHORITY 15

DISPUTE RESOLUTION 16

FINANCING DEVOLUTION 17

CONCLUSION 18 - 20

BIBLIOGRAPHY 20

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ABSTRUCTIn a recent article in the Daily Nation, the current state of devolution was likened to a situation whereby a company’s CEO is faced with a situation whereby the company’s shareholders have recently voted to radically restructure it by establishing offices much closer to clients and giving local managers the power to make decisions on behalf of the company.

Many questions arise on how to effect this change appropriately. It is a tough call to decide which obligations are under the mandate of the company’s headquarters and which functions can be delegated to lower offices. Determination of a budget adequate enough to finance this process is another issue that may pose a problem on the CEO.

The Kenyan government is faced with a similar problem since like the CEO of the company, the government will have to provide equitable services to the public even in areas where private companies are hesitant to develop. It is a fact that the Northernreagions of Kenya have been ‘unexplored’ due to their minimal productivity especially before oil was discovered in Turkana. It is however the mandate of the devolved government and the Ministry of Devolution and Planning to ensure the Northern Kenya and other Arid lands Development Policy is implemented.

Devolution in Kenya is a critical milestone. However, it is facedwith a lot of difficulties. Kenya plans on undergoing a dual transition which refers to transfer of power and resources from the centre to the sub-national level and a simultaneous reorganization of local government, with the creation of 47 new county governments.

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Many Kenyans assume that devolution will bring dramatic change overnight: Upgraded infrastructure, more jobs and opportunities and better service. They have no idea how much time and effort isrequired to balance resource allocations, let alone improve equity of access to services. Many Kenyans have little information on how this government functions. Unfortunately, as discovered in my internship, the leaders also seem to have conflicting opinions on how this government should operate. This has posed a great challenge and devolution seems to have taken off on a very rocky path.

This research sheds some light on critical areas on devolution inKenya and other countries. This information is essential for the understanding of the government structure, different roles of government officials, intergovernmental relations, sources and budgeting of state revenue and other relevant topics in relation to the Kenyan Devolved Government.

Introduction a)Understanding Devolution

In order to understand the meaning of Devolution, one has to understand another common term:Decentralization.

Decentralization is the process of redistributing or dispersing functions, powers, people or things away from a central location or authority.

Government decentralization can be either Political or Administrative. Political decentralization involves pluralistic politics or representative government whereby a representative for the people formulates policies affecting the society. Administrative decentralization involves:

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i) Deconcentration - this shifts responsibility for decision making, finance and implementation of public functions from officials of the central government to those in existing districts under direct control of the central government

ii) Delegation - passes down responsibility to semi-autonomousorganizations not wholly controlled by the central government, but ultimately accountable to it. It involvesthe creation of public-private enterprises or corporations

iii) Devolution - transfers all responsibility for decision making, finance and implementation of certain public functions to the sub-national level, such as regional, local, or state government.

iv) Divestment - also termed as privatization, merely contracting out services to private companies also relinquishing totally all responsibility.

Devolution can hence be described as a form of decentralization whereby devolved territories have the power to make legislation relevant to the area. In other words, the authority to make public policy decisions in the political, administrative and fiscal spheres is conferred on the sub-national entities by law. Without a reliable source of information on the complexity of decentralization, then it would be hard for the common man to achieve any understanding of devolution.

b)Reasons for change

i) Arguments For Devolution

Several countries have embraced the devolved system of governmentas seen in the chart below:

State Government Subdivisions Main regional units Other

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Type article regionalunits

France RepublicRegions of France

27 regions, of which6 have a special degree of autonomy

Italy RepublicRegions of Italy

20 regions, of which5 have a special degree of autonomy

2 autonomous provinces

Papua New Guinea

Constitutional Monarchy

Provinces of Papua New Guinea

18 provinces 1 capital territory

Peru RepublicRegions of Peru 25 regions

1 province at the first order

Solomon Islands

Constitutional Monarchy

Provinces of the Solomon Islands

9 provinces 1 capital territory

Spain Constitutional Monarchy

Autonomous communities ofSpain(nationalitiesand regions ofSpain)

17 autonomous communities

2 autonomous cities

United Kingdom

Constitutional Monarchy

Countries of the United Kingdom(Home Nations)

4 constituent countries, of which 3 have devolved governments

Kenya Presidential Republic

Counties of Kenya

47 counties based on47 districts

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recognized by law

Chart 1.1

They chose this system of government for the following reasons:

Devolution may foster peaceful and healthy competition between counties who wish to develop socially and economically.

Kenya’s 40 counties will soon have an average population of one million people. This means they will be relatively homogenous, but not big enough to become strong regional blocs.

Counties are better placed than the national government to deliver social services because they have specific challenges and the local knowledge to address them.

Even if there are no dramatic improvements in service delivery, people prefer to make decisions rather than following directions imposed by a central government.

Collectively, Kenya’s new counties will be able to claim a chunk of the national pie, but they will also inherit significant spending responsibilities. County spending, on day one, will be mainly dedicated to ensuring that existing services are delivered.

Kenya will continue to urbanize, according to World Bank estimates, half of Kenyans will live in a city by 2033. Devolution must support this huge demographic transformationand help make its urban centers world class cities. Hence the establishment of the Urban Areas and Cities Act to ensure that the cities or towns found in every county can sustain the influx of population.

By distributing authority over public goods and revenues, devolution makes it difficult for individuals or groups of official actors to collude and engage in corrupt practices

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Where devolution of authority takes place along territorial and communal lines, it can foster effective cooperation within the devolved units

It brings the government closer to the people In empowering communities to manage their own resources more

effectively, devolution simultaneously strengthens local institutions.

Devolution ensures that the varying interests of stakeholders are balanced, and that decisions are made in a rational, informed and transparent fashion. The decisions contribute to the overall efficiency and effectiveness of the institutions

Devolution hinders the arbitrary exercise of power by a central government

It encourages national policies to become more sensitive to regional variations

Devolved levels of government have their raison d’etre1 in the provision of goods and services whose consumption is limited to their own jurisdictions.

Devolution provides a more effective governance framework for advancing pro-poor policies.

"By being closer to the people and being seen to be closer….the assemblies would engage the attention and loyalties of citizens; they would be "their" assemblies."  Norton ("The Constitution in Question") Politics Review April 1994.

ii) Arguments Against Devolution

Some countries chose to remain un-devolved such as England. Thereare several reasons against devolution in Kenya. They include:

Counties will be too small to generate the economies of scale that companies need to be successful. Firms will only come to Kenya and expand if they can operate in the whole

1 ‘Reason for existence’

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country and beyond. Moreover, no matter what remote countiesdo to attract them, most will chose to locate their operations in Kenya’s big cities to benefit from aggregationeffects.

Lagging areas are counting on redistribution of national wealth to help them catch-up, while leading regions see devolution as a chance to run their own affairs unimpeded.

As the county slice is further subdivided, there will be winners and losers — redistribution to lagging counties willbe at the expense of leading regions which are the growth engines of the country

Devolution can put democracy at risk by among other things, enhancing ethnic chauvinism, entrenching religious and cultural differences, increasing the marginalization of minority groups, and weakening the process of accountability.

Devolution may reduce the ability of the national governmentto redistribute resources and therefore the ability to assist the less developed sub-national units

It may lead to patronage by the local politicians who use the local resources to consolidate their hold on political power

The lack of any experience of decision-making at the level of regional self-government could also lead to delays in themaking and implementation of decisions – central government has decades of decision-making experience and could do a much better job for the regions without any delay.

Another layer of government could also cause problems with decisions that are wanted by the regions but are not supported by central government.

Design flaws and practical obstacles. In Kenya, the jury is still out on technical design as many of the key parameters are yet to be worked out.

Sharing the pie — via “intergovernmental transfers” — will remain a key area of contention. There are very good reasonsfor the centre to resource county governments.

Devolution may lead to inefficient utilization of resources and lack of accountability at the sub-national level.

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By taking the limelight from a central body, there is a greater risk of corruption in the sub-national governments especially when the community members lack awareness of their roles and the capacity to exercise them.

HISTORY OF DEVOLUTION

a) IN KENYAThere have been constant conflicts between the Senate and the Governors, as well as other government bodies. The state is in a bit of confusion as she takes her first steps in implementation of this new system of government. This ‘teething problem’ is not new as it was experienced in history.

In the late 1950s, it was evident that African political parties and trade unions were now popular among the masses and soon the colonial government would have to allow African legislators in the cabinet, which in time would force the British to cede political governance to the African majority.

In March, 1960 Kenya African National Union (KANU) was formed. This became the nationwide party but some Kenyans from minority tribes felt left out of governance and hence the formation of thefirst official opposition party, Kenya African Development Union (KADU). Masinde Muliro and Ronald Ngala formed KADU on several ideological differences, one of which was the concept of federalism or ‘majimboism’.

KADU argued that devolving resources from the central government to semi-autonomous regional administrative provinces would enhance resource distribution, administration and reduce unequal development. However, KANU dismissed the idea as an attempt by power hungry tribalists to divide the country along ethnic lines.

Soon more members of KADU moved to KANU and hence the concept of majimboism was replaced by Harambee or National Unity i.e. the Republican Constitution. The country’s first experience with

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devolution was through the local authorities established under the Local Government Act 265 of the Laws of Kenya to provide certain services to the community within their areas of jurisdiction. During the colonial period, local authorities all under the Ministry of Local Government were set up and they enjoyed responsibility over poll tax. The last phase of local authorities was the Kenya Local Government Reform Programme (KLGRP) that presented the Local Authority Transfer Fund (LATF) and the Local Authority Service Delivery Action Plan (LASDAP). The main objective of this was to enable local authorities to improve local service delivery, improve financial management and accountability systems and reduce local authorities’ outstanding debts. The local authority plan failed mainly due to some challenges facing the country to date. They include lack of awareness amongst community members, lack of public participation, lack of funds to manage projects, lack of political will amongst councilors and ineffective planning.

Recently, the former President of the Republic of Kenya, Hon. Mwai Kibaki echoed the words of Tom Mboya who stated 50years ago whilst he was the Minister for Justice and Constitutional affairs, that regional administrators were not to assume executive powers and they were to work as a united government to ensure a mutually beneficial political and economic relationship for the benefit of citizens.

The current battle is more subtle as seen in wrangles over political administration, jurisdiction and financial autonomy. The 1960 devolution failed due to lack of political goodwill, lack of adequate foresight in policy implementation or resource allocation and other problems that are facing the country today. This bids the government to face these issues head-on and learn from past mistakes lest the system of Devolution fails again.

b) IN EUROPEDevolved government was created following simple majority referenda in Wales and Scotland in 1997. Between 1998 and 1999, the Scottish Parliament, the national assembly of Wales and the

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Northern Ireland Assembly were established by the law, while England lacked any support for regional devolution or an English parliament. Devolution concept failed to take root in England despite efforts by movements such as the Campaign for an English Parliament which tried to put English devolution on the politicaland social agenda in 1998, when Scotland and Wales were given thedevolution referenda and England left out.

One of the major arguments against devolution is that it will be the start of the break-up of the United Kingdom; that from small beginnings (if devolution can be seen as ‘small’) the ultimate fate of this country will be regional authorities with more devolved power in the counties – this may appeal to those who want more authority in counties like Cornwall, but many see this as the start of the breakup of the United Kingdom with a massive loss of central authority.

The 1992 Conservative Manifesto under the leadership of John Major specifically rejected devolution for that reason. Many Tories to this day believe that devolution has further fed the desire for more regional authority rather than satisfied it and that this country is in a greater stage of break-up than at any time before. 

In Scottish parliament and Welsh assembly, operate on an additional-member system. A parliament member thus holds a post in the legislature and further vies for a post in the party list.Thus their electoral system tends to strengthen the devolved executives at the expense of the legislatures. This system operates against the values of devolution and democratic accountability, hence leading to recentralization of power through party machines.

While comparing functions of these representatives, Scottish and Welsh representatives undertake all constituency work. In Germany, members of the Bundestag (the German parliament) do not undertake responsibility in constituency work. This is the responsibility of local councilors and members of the Landtage-regional parliaments. Kenya should pick a leaf from this government as there arises a definite conflict in the performance

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of roles between members of the county government and members of the national assembly.

c) IN RWANDARwanda, unlike Kenya and Uganda has a functionality based decentralization system. Kenya’s is primarily political. The leaders operate on a hierarchical reporting structure and are technocrats.

In Rwanda, the highest level of local government is the province headed by a governor. Below the province is a district headed by an Executive Secretary, and below the district is a sector also known as Umurenge.

The government is run very efficiently and accountability is core. The leaders sign performance contracts each financial year and each level draws a list of service delivery areas to fulfill including financial terms. They provide estimates an d account for resources provided such as ‘building 5 hospitals in a year at50million shillings’.

The list of services is countersigned by the immediate supervisor, and reviewed quarterly before all citizens on media. Rwanda is a country that has been faced with tribal conflict thatled to the Rwandan Genocide. However, this country has been fast to pick up after the war and ensure efficient government. This efficiency has resulted in vast economic growth. This disciplinedleadership is one Kenya can emulate for its own political, socialand economic growth.

d) IN ZIMBABWEIt is quite clear the current system of a highly-centralized state as we have in Zimbabwe has promoted autocracy, inefficiency, corruption and exclusion of people from full participation in how they are governed. Devolution can certainly help to address some of these problems.

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The only reason why Mugabe wants to maintain the current system is that it enables him to control and run the country like his backyard. We have all seen what the results of that approach havebeen. So his argument is completely driven by self and not national interest. It does not even serve Zanu PF interests, so it can only be about him, nothing else.

At the core of any government is the ability to deliver a sound economy and sound governance to its citizens and that can only beachieved if there is fairness in the distribution of the resources. What is happening now does not at all reflect fairnessin the distribution of the national cake.

It is important to ensure that we move away from the current two-tier system of government and create provincial governments — which are connected to the national or central government — that are empowered and functional to make important decisions in theirprovinces. This will entail having provincial assemblies or councils in charge of social and economic development of their areas.

There is also a need to have a functional, small but efficient provincial cabinet or whatever it might be called to spearhead development of those areas. Most importantly there is a need for elected governors to administer provinces which should have some powers to collect taxes and decide on their development priorities.

This will allow the provincial governments and the governors to focus on the development priorities of their areas, not the current set-up where they are mere provincial watchdogs for the president.

GOVERNMENT STRUCTUREA question that arises mostly in the civic education surveys is ‘What exactly are the roles of the County/National Government officers?’

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The Kenyan government is made up of three arms: the legislature, the executive and the judiciary. The government can also be divided into National Government and County Government.

a) The EXECUTIVE

This is made up of:

a) The president

He is the Head of State and Government, the Commander-in-Chief of the Kenya Defense Forces, the chairperson of the National Security Council and a symbol of national unity.

He upholds and safeguards the constitution He safeguards the sovereignty of the Republic, amongst other

functions 2

b) The Deputy President

He is the principal assistant of the president

c) Cabinet Secretaries

They are accountable to the cabinet and to parliament for all matters under their control

d) Attorney General He is the principal legal advisor to the government He represents the national government in legal proceedings

in which the latter is party to the suit, except for criminal proceedings3

e) Secretary to the Cabinet Arranges business of cabinet and keeps minutes of cabinet

meetings Conveys cabinet decisions to relevant persons

f) Principal Secretaries2 2010 Constitution, Sec 131 (2)3 2010 Constitution, Sec 156(4)

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He/ she administers State departments

g) Director of Public Prosecutions

He institutes and undertakes criminal proceedings against personsin court(other than court martial)

b) The JUDICIARY

This is made up of:

a) Superior Courts Supreme Court- consists of the Chief Justice, the Deputy

Chief Justice and five other judges. Court of Appeal- consists of not less than twelve judges as

may be prescribed by an Act of Parliament High Court- consists of the number of judges prescribed by

an Act of Parliament

b) Subordinate Courts

Magistrates courts Kadhi’s courts Courts Martial Any other court or local tribunal as may be established by

an Act of Parliament, other than the courts established as required by Art 162(2) of the 2010 Constitution i.e. Courts established by parliament to hear and determine issues relating to employment and labour relations; and the environment and the use and occupation of, and title to, land.

c) The Judicial Service Commission

Consists of:

The Chief Justice One Supreme Court judge

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One Court of Appeal judge One High Court judge and One magistrate The Attorney General Two Advocates( one woman and one man) One person nominated by the Public Service Commission One woman and One man to represent the public

The Chief Registrar of the Judiciary shall be the Secretary to the Commission

c) The LEGISLATURE

The parliament of Kenya consists of the National Assembly and theSenate

i) NATIONAL GOVERNMENT

Role of National Assembly:

Universally, Members of Parliament (MPs) are expected to perform five central roles in national governance, namely:

1. Making legislation : to consider, refine and pass legislativebills to improve the lives of Kenyans;

2. Budgetary allocations : to provide the funds needed for government operations annually; MPs have responsibility to consider, debate and pass the financial estimates (budget) including taxation measures for raising revenue to finance public development programs/projects presented by the Executive.

3. Oversight : The oversight role extends to scrutiny of financial, administrative and management practices of publicofficers and other public institutions. In this parliamentarians hold the latter to account for expenditure of such funds as approved by the House to ensure transparency and accountability;

4. Representation of constituents : MPs are a bridge between theelectorate and the government; hence relay issues facing voters to the government for consideration and press for action. On the other hand, an MP is expected to communicate

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to the public the ongoing government plans and policies to address their concerns;

5. Making and unmaking of government (executive) : Parliament has the power to vote out the executive through a vote of noconfidence. This is a powerful lever upon which they can useto determine the life of the Government through exercising the ability to provide or withhold support to either the entire government or a member of the executive.

 Role of the Senate:

The Senate has a total of 68 members. It comprises of 47 members each representing a single county and is elected by the registered voters of that particular county. The Senate also consists of 16 women who shall be nominated by political parties according to the party’s proportion of members in the Senate.

It will also consist of 2 members, being one man and one woman to represent the youth. The Senate will comprise a further 2 members, a man and a woman, to represent persons with disabilities. The Speaker, who is an ex officio member, shall also be a member of the Senate. A general election of members of Parliament (Senate) shall be held on the second Tuesday in Augustin every fifth year. The term of the Senate is 5 years.

The senate has several functions mainly to:

1.  Represent the counties and to protect the interests of the counties and their governments. 

2. Make laws concerning counties.  3. Determine the allocation of national revenue among

counties. 4. Exercise oversight over national revenue allocated.

Role of County Commissioners

This position as well as that of the sub-county commissioner, theward coordinator, the chief, and the assistant chief, is created

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with a view of retaining the Colonial Provisional Administrative System. These officials are to be appointed by the Public ServiceCommission in line with the National Government Co-ordination Bill 2012.

On May 11, 2012, the former president of the Republic of Kenya, Hon. Mwai Kibaki appointed 47 County Commissioners to undertake coordination of National Government functions in the 47 counties in line with section 17 of the sixth schedule of the Constitution. Their main tasks include:

1. To work closely with the Transition Authority to register and compile a comprehensive portfolio of all government assets in the counties including land and buildings, equipment, vehicles, staff, documents and all other public resources, including assets under local authorities.

2. To facilitate the ongoing civic education on among others the Constitution and devolved government.

3. To seek public input into draft county strategic plans, and development plans.

Provincial Commissioners, District Commissioners, District Officers and chiefs in all the eight former provinces were recently instructed by the President of the Republic of Kenya, Hon. Uhuru Kenyatta, to retain their offices so as to facilitate smooth transition tothe devolved government.

iii) COUNTY GOVERNMENT

In line with the County Governments Act, 2012, the county government for each county shall consist of the county assembly and the county executive.

a) County Assembly

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Consists of:

6 nominated members including representative for youth and persons with disabilities

Clerk Leader of majority party Leader of minority party The speaker

The County Assembly Service Board looks into matters about the county assembly members and the functioning of the county assembly.

The assembly has the power to establish joint committees with other county assemblies.

The County Assembly has similar functions as those of the National Assembly including Members of Parliament. Members of theCounty Assembly:

Vet and approve nominees to county public offices Approve the budget and expenditure of the county government Approve borrowing by the county government Approve county development planning

b) County Executive

Consists of:

Governor- His or her roles include to:

perform assignments from the president appoint executive committee with approval of county

assembly submit county plans and policies to Assembly for

approval respect county in national and international for a consider, approve and assent to bills chair executive committee meetings

Deputy County Governor19

Members appointed by the Governor who are not part of the County Assembly

County Civil Servants

Other county officers include:

County Secretary/ Secretary to County Executive Committee County Chief Officer Sub-county Administrator- in charge of sub counties Ward Administrator- in charge of Wards ( Independent

Electoral and Boundaries Commission shall ensure each countyhas at least 15 wards)

Village Administrator- in charge of a village unit (chairs village council)

Town Managers/ Town Administrators4

INTERGOVERNMENTAL STRUCTURE

According to the Inter-governmental Relations Act, the governmentis structured as follows:

1) National and County Government Co-ordinating Summit

This includes the President and the 47 County Governors

2) Intergovernmental Relations Technical Committee

This includes a chair, 8 members and the Principal Secretary of the department of Devolution.

This is responsible for facilitation of activities of the summit and the council

3) Secretariat of the Technical Committee4) Council of Governors

OTHER RELEVANT BODIES

TRANSITION AUTHORITY

4 Article 10(2) Urban Areas and Cities Act 2011

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An independent Transition Authority established to provide a framework for the transition to devolved government in accordancewith The Transition to Devolved Governments Act, 2012.The Transition Authority proposes to carry out its duties in three phases.Phase 1 is the time of operation of the Authority from its inception to the date of the first general election.Phase 2 is the period of three years after the first general election.Phase 3 is the winding up of the Authority and handing over to the Intergovernmental Relations Secretariat. Functions of the Transitional Authority include:

a) To facilitate and co-ordinate the transition to devolved system of government as provided under section 15 of the sixth schedule of the Constitution of Kenya.

b) To facilitate the analysis and the phased transfer of functions provided under the Fourth Schedule of the Constitution to the national and county governments.

c) To determine the resource requirement for each of the functions.

d) To develop a framework for the comprehensive and effective transfer of functions as provided for under section 15 of the sixth schedule to the Constitution

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DISPUTE RESOLUTIONThere have been disputes between the County Commissioners and County Governors; however this should be unfounded since their duties are clearly distinct. The County Commissioners actually work under the national government while the County Governors work for the county governments.

It is important that the national and county governments relate properly with each other through co-operation and consultation. There arise instances when both levels of government are in conflict with each other. In such a case;

a) A function or power that is conferred in more than one levelof government is within the concurrent jurisdiction of each of these levels of government5

b) A function or power may be transferred from one level of government to another if this transference is legal, effective and ensures that the receiving government is provided with enough resources to carry out the function/power.6,or delegate the same to joint committees, authorities or other statutory entities, decentralized units, or urban areas and cities.7

c) The National legislation prevails over county legislation ifit applies uniformly throughout Kenya and prevents unreasonable action by county government8

d) The county legislation shall prevail over national legislation if the action aimed at is reasonable and beneficial to the county

e) The governments shall make reasonable efforts to resolve thedispute including use of procedures for settling intergovernmental disputes set by the national legislation.

5 Sec 186(2) Constitution of Kenya

6 Sec 187 Constitution of Kenya7 Sec 24 Intergovernmental Relations Act 20128 Sec 191 Constitution of Kenya

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Such procedures include alternative dispute resolution mechanisms such as negotiation, mediation and arbitration.

f) Judicial proceedings are the last resort when Alternative Dispute Resolution mechanisms fail.9

Hence we may conclude that functions can be:

i) Exclusive i.e. they are assigned to only one level of government and are performed by this government unless itchooses to transfer the function to another level of government.

ii) Concurrent i.e. they are conferred on more than one levelof government. An area within the concurrent jurisdictionof the national and county government is the promotion ofsports

iii) Residual i.e. they are not conferred on any level of government and are thus automatically functions of the national government, according to the constitution.

FINANCING DEVOLUTIONThe counties are expected to generate their own revenue but they will also receive a share of the national government’s revenue. The national and county governments raise revenue from taxation, fines, sale of assets and collection of fees for services rendered.

All money raised or received by or on behalf of the national government shall be paid into the Consolidated Fund, with exception of money specifically excluded and placed into a separate public fund. Money is not to be withdrawn from these public funds without authorization by an Act of Parliament. Moneyis not withdrawn from the Consolidated Fund without approval of the Controller of Budget.

The Revenue Fund is set up for every county government. This is where all money raised or received is placed.

9 Sec 32(1)(b) Intergovernmental Relations Act

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According to the Public Financial Management Act, the national government has exclusive powers to raise revenue through charging:

Income tax Value-added tax Custom duties and other duties on import and export goods Excise tax Any other tax or duty allowed by an Act of Parliament

According to Article 209(3) a county government may raise revenueby charging:

Property rates Entertainment rates Any other tax that is authorized by an Act of Parliament

Both the national and county governments can take loans, but county governments require approval by the county assembly and the national government to guarantee the loan. Both levels of government are allowed to charge fees for the services they provide as an additional revenue system.

The Commission on Revenue Allocation (CRA) was established to offer recommendations on equitable sharing of revenue between thenational and county governments; and amongst county governments. Division of Revenue Act shall divide revenue raised by the national government among the national and county governments in accordance with the constitution. The county governments will also consider giving grants to urban areas and cities from their own revenues.

Spending by both levels of governments is subject to the allowed appropriations and other charges, overseen by the Controller of Budget and audited by the Auditor General. Both levels of government are ultimately accountable to the people of Kenya.

Conclusion24

Through a fact-finding survey carried out recently by the Ministry of Devolution and Planning in several counties, several challenges were noted:

1) Lack of resources, infrastructure and human capital.2) Conflict between the County Government and the National

Government3) Lack of civic education on Devolution matters especially

the lack of an induction course for county officials4) Lack of efficient communication e.g. lack of internet

access in some counties5) Lack of experience among county government officials6) Hostility between the governors and the Ministry of

Devolution and Planning7) Shortage of qualified staff8) Politicized deployment of county officers9) Lack of management strategies10) A rough transition and less efficiency of the

Transition Authority11) Few trainers on the transition process12) Hostility between interim officers and former local

authority staff, characterized by unprocedural transfer ofassets and liabilities; and removal from offices.

13) Insecurity of former government officials about losing their jobs

14) Turf ring-fencing15) Possible vested interests and resistance16) Unavailability of office space in the initial stages17) Serious financial and time constraints18) Dispute between county commissioners and county

governors

The past local authorities were faced with poor performance and rising debt burdens since nobody could hold them accountable seeing that all their functions were permissive and allowed the central government to determine their obligations and provisions.

Getting a close match between funding and functions for the different governments will be crucial if Kenya’s devolution is to

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be successful. Adoption of the principle of subsidiarity in the sharing of fiscal responsibility (on revenue management and expenditure) between the national and the county government is essential for the ultimate success of devolution. The subsidiarity principle ensures a matter is dealt with by the smallest unit of the devolved government that is capable of addressing the matter effectively.

Moreover, even with flawless design, many things can still go wrong in practice. Central governments can renege on their commitments to resource local governments (although Kenya’s Constitution has effectively ring-fenced significant county revenues) and there is very little to prevent these local governments, when they receive the funds, from mismanaging them (a high risk in Kenya both because of capacity constraints and the potential for poor accountability at the local level.

If counties fail to deliver, there is a risk of re-centralization. Decentralizing too much too soon could be a losing strategy both in the short and the long run. First, sub-national governments need a strong centre to prosper. The centre has key functions to play — such as coordinating nationwide expenditure policies, setting national standards, monitoring county performance and providing capacity building — that are essential for devolution to work. Second, putting too ambitious aworkload on counties that already lack the capacity to handle modest spending may be opening the door to financial mismanagement and service delivery failure.

If counties “fail”, public backlash and re-centralization could set back devolution for years to come, causing long-term damage to the project. To protect democracy in devolution, we need to put in place checks and balances to ensure accountability of county leaders. Elections should be free and fair and the state must ensure the independence of the judiciary.

The state must ensure there are adequate resources allocated to each county for devolution to work. The lack of resources was onereason why the majimbo system failed. There are several ways to ensure that devolution works in Kenya. Media houses should create

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awareness through magazine and newspaper articles as well as livebroadcasts related to devolution so as to reach the public.

The government should also use existing community and leadership structures such as Community Based Organizations (CBOs) as a means of reaching the community. These groups can be used to train the public on its role especially in resource management before funds such as CDF are released into the society.

Provision of loans such as women and youth enterprise fund can goa long way in building the poor counties so they can be at par with other more developed counties.

Devolution can easily lead to corruption and ethnic violence in areas which lack enough information on its intricacies. Regular public campaigns should thus be a core function of the devolved government until this concept is fully embraced and understood bycounty members.

Citizens are required to participate in planning, budgeting and accountable management of financial resources. Each county government should put mechanisms for public participation and at the national level; the parliament ought to pass legislation on acitizen’s participation.

Citizens have responsibilities such as obedience to the law and respect for the constitution. There are several ways a citizen may participate in the devolution government. This includes:

a) Advocacy

They may advocate for the implementation of Constitutional provisions relating to the devolved government

b) Elections

Citizens are expected to play their role in electing suitable leaders

c) Social audits

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Citizens are responsible for ensuring no misappropriation of funds by the devolution government

d) Civic education

Citizens are expected to learn and share all information about the constitution and also help implement it. Finally, the currentconstitution ought to be reviewed in terms of issues that are likely to hinder development. Such issues include land policies. It is thus essential that the devolved government takes upon itself the mandate to ensure redress of historical injustices, land redistribution and restitution; otherwise the country will be stuck in the devolution process.

BIBLIOGRAPHY

Bogdanor, Vernon. “Federalism in Switzerland.” Government and Opposition 23.1 (1988): 69-90. Print.Chris Trueman. “Arguments for Devolution.” History Learning Site. 2013. Print.

http://www.historylearningsite.co.uk/arguments_for_devolution.htm

Kahunga, Matsiko. “Why devolution in Rwanda beats that of Kenya and Uganda.” Wed, Jun 12th, 2013. Web. June 17, 2013

Ministry of Local Government. “Civic Education on Devolution.” (2013). Print.

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Sunday, F. Devolution hitch not new in Kenya as history shows. Standard Digital (2013). Print.

The Constitution of Kenya, 2010

The County Governments Act, 2012

The Intergovernmental Relations Act, No.2 of 2012

The Transition to Devolved Government Act, No.1 of 2012

The Urban Areas and Cities Act, 2011

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