i

CRYSTALLIZING DEVOLUTION IN KENYA

Ombo .D. Malumbe†

† LLB Student Mount Kenya University (Due, May, 2015); Chairperson at Kenya Journal of Law and Justice; Communication Director at Africa Law Times. Contacts: + 254 (0) 724 026 355 duncanombo@gmail.com websites: www.ombomalumbe.wordpress.com www.africalawtimes.com www.kenyanlegal.com

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TABLE OF CONTENTS

First Page i

Table of Contents ii

List of Authorities/Sources iii

Abbreviations/Synonyms v

Forward vi

Introduction 1

Home Rule 3

Kenya 6

The Kenyan Independence Constitution of 1963 7

The 2010 Constitution of Kenya 10

Conclusion 18

iii

List of Authorities/Sources

Kenyan Laws

Utilized Laws

County Government Act 2012

Intergovernmental Relations Act 2012

National Government Co-ordination Act 2013

The Constitution of Kenya 1963

The Constitution of Kenya 2010

Other Statutes relating to Devolution

Division of Revenue Act 2013

Public Finance Management Act 2012

Transition County Allocation Revenue 2013

Transition County Appropriation 2013

Transition to Devolved Government 2012

Urban Area and Cities Act 2011

Dictionary

The Black’s Law Dictionary 8th Ed

Books

Majimboism means Regionalism – Valence Issues in African Elections: Navigating Uncertainty and the Weight

of the Past Comparative Political Studies November 1, 2013 46: 1394-1421

Osborne M. R. Jr., Handbook of Local Government Law § 35, at 96 (1982)

WILLIAM A. F. The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School

Finance, And Land-Use Policies 4 (2001).

Lee A. F. “Book Review” – Home Rule (The Homevoter Hypothesis: How Home Values Influence

Local

Kagwe T. Nguzo na Haki: The Devolution ‘Back to Lancaster’ (Kenya National Commission on Human

Rights - Issue 11, 2012)

Albert K. M. ‘Edited’ Devolution in Kenya: Prospects, Challenges and The Future (IEA Research Paper Series.

No. 24, Institute of Economic Affairs 2010)

Yash P. G. & Jill C. G. Kenya’s Constitution: An Instrument for Change (Katiba Institute, K-Rep Centre,

Wing 3C, Wood Avenue 2011) pp 118

iv

Constitution of Kenya Review Commission (CKRC) [2001 – 05]

Websites

Charles H. "Devolution: Government and Politics". Encyclopædia Britannica. Encyclopædia

Britannica Online. <http://www.britannica.com/EBchecked/topic/155042/devolution> (Accessed

on the 4th Day of January, 2015)

Peter K. and Willy M, The Nation (Nairobi), 20 May 2001 <http://www.hartford-

hwp.com/archives/36/136.html> (Accessed on the 4th Day of January 2014)

What was Home Rule? <http://www.rte.ie/centuryireland/articles/home-rule-for-ireland-q-a>

(Accessed on the 24th Day of January 2015)

History Learning Site “Home Rule and Ireland”

<http://www.historylearningsite.co.uk/home_rule_and_ireland.htm> (Accessed on the 24th Day of

January, 2015)

From House of Lords to Supreme Court

<http://www.parliament.uk/business/news/2009/07/from-house-of-lords-to-supreme-court/>

(Accessed on the 24th Day of January, 2015)

Governance Row Threatens Kenyan Devolution <https://iwpr.net/global-voices/governance-row-

threatens-kenyan-devolution> (Accessed on the 24th day of January, 2015)

Valence Issues in African Elections: Navigating Uncertainty and the Weight of the Past Comparative

Political Studies November 1, 2013 46: 1394-1421

Case Law

Speaker Of The Senate & Another V Hon. Attorney-General & Another & 3 Others [2013] eKLR

In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR

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List of Abbreviations/ Synonyms

No. Number

Sec. Section

PM Prime Minister

Art. Article

CoK/Const. Constitution of Kenya, 2010

CKRC Constitution of Kenya Review Commission

Pp/pg Page

eKLR electronic Kenya Law Reports

CG County Government

NG National Government

CL County Legislation

NL National Legislation

KANU Kenya African National Union

KADU Kenya African Democratic Union

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FORWARD

Kenya is a peculiar State located in the East geographical part of the African Continent.

It is a State that has been acknowledged of domesticating one of the most complex

grundnorm around the world, save for United Sates of America’s grundnorm. The

complexity of the grundnorm is experienced when one appreciates the facts before hand

(the situation the Government of Kenya is in, since Colonization to this moment).

At the end of the second quarter of the year two thousand and ten (2010) The

Government of Kenya promulgated a constitution dubbed as the “The New

Constitution” or “Constitution 2010”. The lex document is termed as the Supreme Law of

The Land it is second to none. It is not shy to dictate what alien laws can be invited within

the Kenyan Jurisdiction.

A country having eight (8) provinces and forty seven (47) counties: the counties are in

place to decentralize power from The National Government which was initially based in

Nairobi, Kenya.

In the Constitution 2010 there are “new” elements that have been splashed on Kenyan

citizenry. Most citizens lack the mere grip to understand its pros and cons and no one

bona fide can give the pro and contra of the “new” elements to them; this is because, most

interpretation are glued to the political wing of the Government or opposition. Owing to

the fact that most Kenyans do not reason on their most prudent standing; thus, the

reasoning is based on Political and/or Ethnicity, these are glued with emotions spurred

by their catalytic leader(s). Hence, making such a definition and/or interpretation an

impaired one and/or a blurry view.

Thus, herein, the paper will trace the rich history of Devolution from across the world.

States that are regarded as commonwealth and/or Common Law States will be given

upper hand: in the sense that, their rich history will be utilized as a guiding tool.

The lenses will be directed to:

i. How did the idea of Devolution come into place

ii. Why was it necessary to have Devolution;

iii. How are county governments expected to be run;

iv. How are the scuffles between County and/or County Governments and

National Governments quelled;

Thereafter, a special spectrum will be given towards the Government of Kenya. How has

Kenya been since the year 1963 when it attained physical and/or political independence.

i. The Independence Constitution of Kenya; and

ii. The New Constitution 2010.

Herein, the provisions of the Constitution will not be delved into solo but by the use of

both primary and secondary references. This will proffer an elaborative definition of the

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provisions of the Constitution 2010 and lex specialis that have been borne to address

and/or expound on what County Governments entail.

Ombo .D. Malumbe

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1.0. Introduction

Generally, there is great loss of grip as to what entails devolution and/or federalism. Further, it is also

questionable at what instance does one of the following come into existence. Countries of relevance

in this division like United States of America, France and United Kingdom have had a taste of this

matters. However, authors and/or legal scholars who have immense enthusiasm towards the division

of Devolution have defined this term in a manner that shows no consistence. Hence, making it loose

the expected grip.

The inconsistency in defining the term devolution mirrors a drinking straw with a bullet hole. Thus,

for it to be instrumental for its purpose, it will need more peculiar materials to be attached to it so as

to meet its purpose. Nevertheless, where elusiveness is extremely vivid and no one has apparent

solution, that makes the users of the straw apprehensive, as they acknowledge the straw as a time

bomb.

Professor Charles Hauss does define devolution as follows:

[T]he transfer of power from a central government to subnational (e.g., state, regional, or local)

authorities. Devolution usually occurs through conventional statutes rather than

through a change in a country’s constitution (own emphasis).2

The phraseology utilized by one Prof. Charles Hauss need no further explanation. However, in his

definition it will be noted that some imperative elements were precluded by utilizing the terms

“[d]evolution usually occurs through conventional statutes rather than through a change in a country’s

constitution.” If the Kenyan situation is invited herein, it will totally erode Prof. Charles Hauss

argument and/or definition of Devolution. Nevertheless, as much as one could presume he meant

“local Governments and/or municipalities”, the same is not true as his paper portrays County

Governments as those in Kenya.

The Black’s Law Dictionary:

Devolve: 1. To transfer (rights, duties, or powers) to another. 2. To pass (rights, duties, or

powers) by transmission or succession.3

Devolution: The act or an instance of transferring one's rights, duties, or powers to another;

the passing of such rights, duties, or powers by transfer or succession.4

Incorporating the definition proffered by The Dictionary, it does mean nothing less than decentralization

of power from Central Government.

2 Charles H. "Devolution: Government and Politics". Encyclopædia Britannica. Encyclopædia Britannica Online. <http://www.britannica.com/EBchecked/topic/155042/devolution> (Accessed on the 4th Day of January, 2015) 3 The Black’s Law Dictionary 8th Ed pg 1363 4 Ibid n2

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In Kenya, the intellects of the time when Kenya African Democratic Union and Kenya African National

Union had scuffles on pro and contra of Majimboism5, they all held ideologies that lead to some cleavage.

The questions paused were as follows:

Is Majimboism Federalism? This question was addressed by Dr. Willy Mutunga and his

colleague Mr. Peter Kagwanja (as then he was).6 Currently, Dr. Willy Mutunga is the President

of the Supreme Court of Kenya and the Chief Justice while the latter is regarded as Professor

Peter Kagwanja.

In the aforementioned analytical paper by one Prof. Kagwanja and Dr. Mutunga, it discredits the

argument by the late Peter Habenga Okondo and lauds the ideologies put forward by Association

for Local Government Authorities in Kenya.

The late Peter Habenga Okondo’s argument was that based on the Homes Rule. However, the

Homes Rule is a satisfactory legal rule; he might have misread the applicability of it. As he made it

diminish the need of national cohesion7 this is because he was seeking individuals to go back to their

ancestral lands and develop the area - “Tribal States”8. In taking a different dimension vis-à-vis

Okondo’s argument by appreciating the Homes Rule rather than his “Federal Republics of Kenya”9¸ it

is evident that without this “devolution” most regions in Kenya could not, will not, and were not

going to develop at all. Hence, by blessing each region with duties by way of decentralization of power

it could cure the lack of development in some regions.

The apprehensiveness of lack of effective developments in many regions is due to the state in which

the imperialists left this country. Kenya is like a village lady, who is intellectually, physically and

virtuous upright. However, due to lack of the basics and/or necessities she is incapable of showing

her worthiness. Hence, by decentralizing of power not only in black and white but also in practical

then the village lady will be acknowledged of her worthiness.

Having such positive progressive developments taking place in each County Government in Kenya,

it will instill a satisfactory element within the citizenry; hence, it will lead to National cohesion.

The duo10 did laud Association for Local Government Authorities in Kenya for their view on what

Majimboism11 was to be all about. The definition proffered was equal to what Devolution is currently

understood by the sober legal elites in Kenya vis-à-vis Constitution 2010.

5 Majimboism means Regionalism – Valence Issues in African Elections: Navigating Uncertainty and the Weight of the Past Comparative Political Studies November 1, 2013 46: 1394-1421; See also, Art. or Sec. 91 of The Independence Constitution of Kenya (1963) 6 Peter K. and Willy M, The Nation (Nairobi), 20 May 2001 <http://www.hartford-hwp.com/archives/36/136.html> (Accessed on the 4th Day of January 2014) 7 Peter K. and Willy M. (supra) 8 Ibid n5 9 Ibid n5; See also, Okondo, P. H. A Commentary on the Constitution of Kenya. (Phoenix Publ., 1995) 10 Prof. Kagwanja, P. and Dr. Mutunga, W. 11 [T]he issues raised in this think-piece suggests that what the association calls for is a decentralized and democratized central government, strong institutions and independent and autonomous local governments.

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2.0. Home Rule

The Home Rule12 is an element borne by the Irish Island when it pushed for the retrieval of its Member

of Parliaments “MP” from the Westminster. The MPs were attending Parliamentary sessions from the

Westminster due to the effectivity of the Act of Union, back in the 1800.13

Herein under, Home Rule is given various definition:

Osborne:

Home rule in the United States was sometimes envisioned in its early days as giving the cities

to whom such rule was granted full-fledged sovereignty over local affairs (own

accentuate), thus bringing about dual state and local sovereignty along the national plan of

federal and state governments. But such local sovereignty has never developed, nor have

any clear-cut distinctions between state and local power (own accentuate).14

Black’s Law Dictionary:

A state legislative provision or action allocating a measure of autonomy to a [County]

government, conditional on its acceptance of certain terms.15

William Fischel – the phraseology herein under crystalizes Home Rule:

[H]omeowners, who are the most numerous and politically influential group within most

localities, are guided by their concern for the value of their homes to make political decisions

that are more efficient than those that would be made at a higher level of government.16

There are many definitions attached to the same term; however, the aforementioned seem to give a

vivid image of what Home Rule is all about. Therefore, when merging the definitions with the situation

in Kenya, one will affirmatively assert that this is what Kenya has been arguing for since time

immemorial.

In Kenya the County Governments are given fully-fledged sovereignty over local affairs17; however, what

emerges is that such local sovereignty [is] never developing, nor any clear-cut distinction between state and local power.18

This has been experienced in the instances when scuffles emanated between the National Assembly

12 Home Rule was the name given to the process of allowing Ireland more say in how it was governed – freeing them from the rule of London and thus appeasing those in Ireland who wanted Ireland to have more home derived power - <http://www.historylearningsite.co.uk/home_rule_and_ireland.htm> (Accessed on the 24 Day of January 2015) 13 What was Home Rule? <http://www.rte.ie/centuryireland/articles/home-rule-for-ireland-q-a> (Accessed on the 24th Day of January, 2015) 14 Osborne M. Reynolds Jr., Handbook of Local Government Law § 35, at 96 (1982); See also, Black’s Law Dictionary 8th Ed. 15 Black’s law Dictionary 8th Ed. pp 2145 16 WILLIAM A. FISCHEL, The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, And Land-Use Policies 4 (2001). 17 Osborne (supra) 18 Osborne (supra)

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and Senate.19 Nevertheless, the Constitution 2010 is quite clear on the same under Article 96; 109; 110;

111; 112; and 113. Thus, the Senate has the mandate to protect the County Government.20

Unlike the United States of America “USA” that has the Federal System, whereby, each State can

come up with a legislation that can later (if one deems it as that which is unconstitutional) on be

reviewed by the own State’s Supreme Court for its viability or by the USA Supreme Court; the Kenyan

situation is not of the same nature.21 Thus, the Senate regulates the laws of County Government so as

to create some element of consistency as to how the County Governments operate, not forgetting

that the same Senate should uphold and foster Devolution as dictated by the Constitution 2010.

In the event that each County Government, out of the forty seven (47) could be given the go-head as

to that which William Fischel provides it could make Kenya an anarchy State.

Fischel states that:

[Home Rules] not only [shows] how local politics works, but also how well local politics works

— at least when evaluated using the criterion of efficiency and when considered in comparison

with the available alternatives. A homeowner will generally make socially responsible

political decisions (own accentuate), Fischel argues, because anything that affects the

community will ultimately be reflected in her home’s value through capitalization.22

As much as no clarity has been made if one The Late Okondo was flanking his arguments from the

Home Rule elements, it is clear his averments were of the same nature; that is the reason as to why the

late Okondo thought of having every person to report back to his or her ethnical roots. Thereof, the

spectrum should be based on Home Rule in Kenya cannot be equal as that which is in USA (of which

USA States are fully composed of one ethnic group).23 This is because of nature of the USA being a

combination of various States unlike Kenya is all about some small forty seven (47) geographical

demarcations.

2.1. Implementation of The Home Rule.

In Kenya the Home Rule is provided for and protected by the grundnorm. There exists many challenges

on implementing the Home Rule principle in Kenya. However, this is not something new as our

predecessors suffered from the same even as they Colonized Kenya and other various States on planet

Earth.

Home Rule and Ireland:

19 Speaker Of The Senate & Another V Hon. Attorney-General & Another & 3 Others [2013] eKLR 20 Article 96 (1) of The CoK, 2010. 21 However, it should be noted under Regionalism and/or Majimboism: thus, under the 1963 Constitution, each Region had been allocated a Supreme Court. 22 Lee A. F. “Book Review” – Home Rule (The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies. By William A. Fischel.) - Cambridge: Harvard University Press, 2001. Pp. 329. 23 Peter K. and Willy M. (supra)

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In 1886 and 1893, there had been two Home Rule bills but both were rejected and killed off

by the Lords. The House of Lords saw the introduction of Home Rule as the start of

the process whereby the power of London was reduced, first in Ireland – and then

where else (own accentuate)? The leader of the Irish Nationalist Party, John Redmond, had

stated quite clearly in 1910 that it was the Lord’s veto alone that came between Ireland

and a successful Home Rule bill (own accentuate).24

In Kenya the clique that is worried about Home Rule is not The House of Lords (in Kenya being the

Judiciary) but the Politicians more so under the National Assembly wing. It is known that the House

of Lords played a parliamentary Role in the United Kingdom and also a Judiciary role. Such activities

defeated the arguments of Montesquieu and John Locke – separation of powers. Hence, there was the

need to separate those who make law and those who interpret the law.25

Kenya Home Rule (herein after Devolution) has been thwarted to its full realisation by the Political

wing. Whereby, the decentralization of Power from the Central Government has caused a lot of “loss”

to the political “elites”.26 However, such “hazardous weapons” utilized to rip off the life of devolution

in Kenya also existed during the existence of the Independence Constitution 1963. The same will be

addressed herein under. Hence, it is only the political wings in Kenya that dilute the value and

relevance of Devolution in Kenya.

24 History Learning Site “Home Rule and Ireland” <http://www.historylearningsite.co.uk/home_rule_and_ireland.htm> (Accessed on the 24th Day of January, 2015) 25 From House of Lords to Supreme Court <http://www.parliament.uk/business/news/2009/07/from-house-of-lords-to-supreme-court/> (Accessed on the 24th Day of January, 2015) 26 Governance Row Threatens Kenyan Devolution <https://iwpr.net/global-voices/governance-row-threatens-kenyan-devolution> (Accessed on the 24th day of January, 2015)

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3.0. Kenya

Kenya has undergone a tiresome and bloody process of attaining a Constitution. The intertwining of

Politics and the need of having a New Constitution has been the chorus with different tunes, some

with a high pitch and some with a low pitch and some moderate, but due to the multi-ethnical State

like Kenya, the citizenry lacked reasoning power on what pitch was prudent.

Mostly reasoning emotionally and sometimes acting in sobriety the citizenry tried to reach that

Constitutional goal; nevertheless, the sobriety was only a concept that was theoretical in nature. A

State that has citizenry of this nature (tribal) could not be expected to reach whatsoever consensus in

a prudent manner. To some extent, there was need of having a National Cohesion machinery that

could fill the dental gaps caused by “divide and rule”; hence, making persons to appreciate the diverse

cultures. The appreciating of cultural elements of diverse communities was to be considered as one of

the ways of bringing up a nation that was ready to steer its independence to an immense social, political

and/or economical rostrum.

Well, one of the aforementioned have been tried but the old fogies seem to have planted a hate-holy-

spirit to Generation X and the forthcoming generation. Hence, the failure of appreciation of diversity.

However, in wearing the subjective and most prudent hat in such a society like Kenya. It is vivid that

most Africans of the Kenyan dissent are living five hundred years ago. The twenty first (21st) Century

element is a veil from the reality. Therefore, despite attaining the reasonable facilities of education and

the capability of reading and understanding, Kenyans have resorted to wait for what their “prophets”

sent by the Messiah will tell them. Yes! It is quite appalling, but that’s the vivid fact.

For instance, the Israelites are believed to have waited down the Mountain for months just to hear

from Moses, this is how Africans of the Kenyan dissent behave like. They cannot think independently,

they cannot have a thought independent from that which their “leader” states. Our “leaders” have

noted the same fact and they utilize it “fairly”.

Herein under, two vital documents will be discussed; thus, there will be the Independence Constitution

of Kenya and the Constitution of 2010 of Kenya. The aforementioned grundnorms will be appreciated

with regards to the concept of Majimboism and Devolution respectively.

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3.1. The Kenyan Independence Constitution of 1963

David M. Anderson:

[In the 1960s] [t]hose who supported majimboism were minorities, both African and

European, fearing economic domination because of the underdevelopment of their regions,

or political exclusion in a nation state dominated by more populous ethnic groups.27

It is clearly provided that a given section of the Kenyan society back in the 1960s were apprehensive

of the fact that there was going to be under-development in various regions and some communities

could be cut off the Governmental positions, hence, lack of whatsoever influence in the National

Programmes.

In the aforementioned grundnorm, the element of Regionalism28 better known to many as

Majimboism was provided for. The grundnorm is also referred as the Lancaster House Document.29

The palpable difference is that The Independence Constitution does segregate the State of Kenya into

eight (8) regions that are expected to be run by a regional Government. The regions are as follows:

Kenya shall be divided into the Nairobi Area (own accentuate) and the following Regions

whose respective boundaries shall, subject to the provisions of section 289 of this

Constitution, be those specified in Part II of Schedule 11 of this Constitution:

(a) the Coast Region;

(b) the Eastern Region;

(c) the Central Region;

(d) the Rift Valley Region;

(e) the Nyanza Region;

(f) the Western Region; and

(g) the North-Eastern Region.30

The aforementioned was based on the regionalism concept that is equivalent to the Devolution

Kenyans are hoping to enjoy it. Thus, why most authors have regarded what Kenya is ‘eating’ now is

what it was served before but in a different style and by different ‘chefs’.

The protectors of the Majimboism system were the senatorial body, of which, was to have forty one

(41) elected persons from each district; Nairobi Area as a whole was to produce one Senator.31

27 Valence Issues in African Elections: Navigating Uncertainty and the Weight of the Past Comparative Political Studies November 1, 2013 46: 1394-1421 28 Kagwe T. Nguzo na Haki: The Devolution ‘Back to Lancaster’ (Kenya National Commission on Human Rights - Issue 11, 2012) 29 Kagwe (supra) 30 Sec 91 of the 1963 Constitution 31 Chapter IV, Sec 35 of the 1963 Constitution

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However, this structures were done away with by the then Prime Minister of Kenya who then became

the President of Kenya controlling the whole State32 after doing away with the Majimboism in totality

even without leaving a whiff of it.

The PM Kenyatta and his disciples thought it was prudent that ‘devolution’ be effected through the

Provincial Administrators.33 This was abuse of the intelligence of the then elites who lauded

Regionalism, this is because the Centralized Government was the one rowing the boat – under whose

imagination could a “captive” tell the master to head to his or her favourable direction. Well, now it

should be clear that there was choosing of one’s favourite tune but to dance to whatsoever tune the

master plays. This because what the Government was introducing was more of de-concentration: is

administrative decentralization where the central government disperses responsibility for certain function to regional branch

offices that implemented decisions made at the centre.34

Tom Kagwe:

Immediately after independence, Prime Minister Kenyatta working with parliament amended

the ‘Majimbo Constitution’ for the first time in 1964, to make him President, and therefore

both Head of State and Government. With that amendment, the then presidents of regional

governments were renamed ‘chairmen’, paving way for Kenyatta as the sole holder of that

title.

The amendments were immense, the following also took course:

Some of the changes brought on by the amendments were the abolition of the Senate which

had been created to protect interests of the regional governments (own accentuate) and

abolition of regional governments in 1968.35

Therefore, the Majimboism was done away with – how simple and expeditious it happened, it is stated

that the absorbing of KADU by KANU was one of the way.36 Nevertheless, Political tension was

high.

In shredding the Majimboism in Kenya, it gave birth to the apprehension of the minorities as stated by

David Anderson herein above. As Kagwe put is it vividly after analysing the one-size-fits-all rule. He

asserts that the Sessional Paper No. 10 of 1965 authored by the KANU Government acted as follows:

a) [A]ll Kenyan districts’ needs were thought to be similar; and

b) [O]nly areas that have ‘high potential’ get more funds and investment opportunities than

those with ‘low potential’.

32 Kagwe (supra) 33 Kagwe (supra) 34 Albert K. M. ‘Edited’ Devolution in Kenya: Prospects, Challenges and The Future (IEA Research Paper Series. No. 24, Institute of Economic Affairs 2010) 35 Kagwe (supra) 36 Kagwe (supra)

9

This is undisputed as the principles of duty of care tend to utilize the doctrine of res ipsa loquitur, then

the same applies to the Kenyan state of affairs vis-à-vis developments. This led to most citizenry to

assert that they felt like they were foreigners in their own country.37

37 Constitution of Kenya Review Commission (CKRC) [2001 – 05]; See also, Kagwe (Supra)

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3.2.0. The Constitution of Kenya 2010

3.2.1 Introduction

This grundnorm was promulgated back in the year 2010. To the statistics proffered, it is averred that

the Constitution 2010 was voted for by a great percentage of Kenyans. Under Chapter Eleven of this

Constitution, it addresses the issue of Devolution: better dubbed as Devolved Government.

The aforementioned Chapter contains twenty seven (27) Articles. The 27 Articles will not be addressed

in whole, however, only the eye-catching Art. of the Constitution will be given concern. In the

exclusivity of the Const. 2010, there are other nine (9) lex specialis that directly address matters vis-à-

vis Devolution in Kenya.

Therefore, as this division will be addressed, there will be invoking of the other provisions so as to

expound a given analogy as dictated by the Const. 2010.

What is Devolution?

Yash Pal Ghai & Jill Cottrell Ghai:

[T]he authority and power being passed by the central government to the lower levels of

government. But in the Kenya system this is not the choice of the government but of

the people through the Constitution. However, the national government will be able

to pass more powers, if it thinks fit.38

Devolution in Kenya: Prospects, Challenges and The Future:

[I]s a political arrangement where political, administrative and fiscal power is distributed to

semi-autonomous and sub-national units.39

The Constitution of Kenya does not proffer a sentence or exact phraseology that defines what a

Devolution is; however, it provides elements that can be utilize to understand or structure Devolution

and/or guide the law making bodies when executing their duties. The elements are found under Art.

174 and 175 of the Const. 2010: Objects of Devolution and Principles of Devolved Government respectively.

As the aforementioned are delved into40 the laws and any other matter should acknowledge: Supremacy

of The Constitution;41 Devolution and Access to Services;42 The national Values and Principles of

Governance;43 Culture;44 The Bill of Rights;45 and General Provisions46 of Const. 2010.

38 Yash P. G. & Jill C. G. Kenya’s Constitution: An Instrument for Change (Katiba Institute, K-Rep Centre, Wing 3C, Wood Avenue 2011) pp 118 39 Devolution in Kenya: Prospects, Challenges and The Future (supra) 40 This is by both the National and County Governments 41 Art 2 of the CoK, 2010 42 Art 6 (supra) 43 Art 10 (supra) 44 Art 11 (supra) 45 Chapter 4 of the CoK, 2010 46 Chapter 17 of the CoK, 2010

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3.2.2. Devolved Government47

i. Objects of Devolution48

Herein, the Const. provides elements that describe the type of Devolution expected in Kenya, they

are as follows:

a) Promote democratic and accountable exercise of power:

As much as democracy can be an elusive term, this objective does proffer the citizenry at

the County Government “CH” level to be able to take part in the law making process.

Thus, unlike having a representative at the National Assembly to provide legislation

without knowledge of the needs of the people at his or her constituency, the CG is closer

to the people. It is also vivid that the National Assembly comes up with general

stipulations; hence. Not appreciating the different geographical and cultural difference in

various part of the Country.

The citizens have the lee-way to critique and get involved on how their leaders exercise

their power. The Constitution is well beautified with impeachment segment whereby

serious questionable matters arise within the CG.

b) Foster National unity by recognising diversity:

From time to time the Political Structure of Kenya is based on ethnical development.

Whereby, people believe that when one community has its ethnical leader as the President,

they have high chances of development. Well, this is not a fallacy as the words of David

Anderson provide, not forgetting the Sessional Paper No. 10 of 1965. Hence, it was all about

supporting one-self ethnicity irrespective of how their political tact is unreasonable.

Now with the CG, citizens have managed to attain the Decentralization, hence, with the

development at the CG it will divert attention from the cry or push of ethnical or tribal

presidency. This is only if the part (a) and (h) are well utilized not forgetting the eradication

of Corruption.

Hence, if the CG develop significantly, communities in the CG will be less concerned with

having their own at the presidency since they are attaining the developments they have

been crying for since 1964.

c) Self-Governance:

This is a concept that been well defined by Fischel. However, it should be noted that the

self-governance is regulated by more superior laws – thus, they have to exercise the

element of self-governance in such a manner that reflects some of the National Laws and

International Legal instruments.

47 Chapter 11 of The Constitution of Kenya, 2010 48 Art 174 of the CoK, 2010

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d) Right of Communities to manage their own affairs and to further their own

developments:

This section is not far from the aforementioned under (c).

e) Protect and promote the interest of the minorities and marginalised:

This reflects the suffering that emerged from the Sessional Paper No. 10 of 1965. Currently,

it is expected that the same injustices regards to developments will be healed. Thus, as

much as some communities cannot amass the expected revenue. There is the Equalisation

that will be utilized to bridge other CG with those that are highly self-sustaining.

f) To promote social and economic developments:

This is a positive duty towards the CG. The same is provided for under the CoK49

g) Ensure equitable sharing of national and local resources throughout Kenya:

This is applied utilizing the principle of Equity unlike that of Equality. This is because

some CG cannot harness ample revenue to run its purpose or if it can, the same is minute

h) Facilitate decentralization:

The decentralization is that which Devolution in Kenya: Prospects, Challenges and The Future

describes.50

i) To enhance checks and balances and separation of powers:

Apart from the CG Level of checks and balances, the Senate and National Assembly has

role in the same matter. The element of Separation of Powers is whereby the Executive

and National Assembly cannot attack the CG. This is because the Senate is the “guardian

angel” of the CG. Separation will also apply within the CG as the Governor and/or

Deputy Governor are not expected to interfere with other organs in the CG.

It is prudent to note that the aforementioned demand the full participation of the Citizenry at the CG

level to take part in the developments and policy making of the CG. Hence, there are other rights such

as the: right to information; freedom of expressions; freedom of conscience, religion, belief and

opinion; Equality and Freedom from Discrimination et al.51

This affirms that the level of involvement of the citizens towards the CG projects and other activities

is very high. Well, that is theoretical in nature – as it is known that Kenya suffers from ignorance, poverty

and diseases. However, as per the development, most citizens will be keen to evaluate what the CG will

come up with not forgetting being abreast with every aspect of the CG.

49 Art 43 50 [I]s a political arrangement where political, administrative and fiscal power is distributed to semi-autonomous and sub-national units. 51 Constitution of Kenya, 2010; See also, Part VIII; IX; X et al. of the County Government Act

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ii. Principles of Devolved Government52

Herein there are only three principles that the CG: shall be based on democratic principles and the

separation of powers – this is addressed herein above; shall have reliable sources of revenue to enable

them to govern and deliver services effectively – this can include coming up of projects that the CG

can tap revenue from, so long as the same is adding value to the CG. However, not all projects initiated

will demand collection of revenue from the Government. For instance, it will be imprudent for the

CG to render services only after one pays monies to an Ambulance; Gender Equality – the two-thirds

principle does not mean that the one-third should be women at all times. Generally, this is the norm

that most persons do have in mind or at heart. Nevertheless, the two-thirds can be women and one-

third be men. Therefore, the only matter that the Const. questions is that at no point will the members

of representative bodies in each CG shall be of the same gender.

iii. Respective Functions of The National and County Government53

The functions are provided for under the Fourth Schedule of the constitution, prior providing the

same herein under – it will be prudent to make some clarification provided by the CoK vis-à-vis

Functions or Power: in the event the power or function is provided for the two governments, it will

have a concurrent jurisdiction over the two; however, where the mandate is not stated to fall under a

certain Government, it will be presumed to be under the control of the National Government.

Nevertheless, the Parliament can make clarity when such functions and duties exist:

52 Art 175 of the CoK 53 Art 186 of the CoK

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The Fourth Schedule

– Article 185 (2), 186 (1) and 187 (2) –

National Government

DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL

GOVERNMENT AND THE COUNTY GOVERNMENTS

1. Foreign affairs, foreign policy and international

trade.

2. The use of international waters and water

resources.

3. Immigration and citizenship.

4. The relationship between religion and state.

5. Language policy and the promotion of official and

local languages.

6. National defence and the use of the national

defence services.

7. Police services, including— (a) the setting of

standards of recruitment, training of police and use

of police services; (b) criminal law; and (c)

correctional services.

8. Courts.

9. National economic policy and planning.

10. Monetary policy, currency, banking (including

central banking), the incorporation and regulation of

banking, insurance and financial corporations.

11. National statistics and data on population, the

economy and society generally.

12. Intellectual property rights.

13. Labour standards.

14. Consumer protection, including standards for

social security and professional pension plans.

15. Education policy, standards, curricula,

examinations and the granting of university charters.

16. Universities, tertiary educational institutions and

other institutions of research and higher learning and

primary schools , special education, secondary

schools and special education institutions.

17. Promotion of sports and sports education.

18. Transport and communications, including, in

particular— (a) road traffic; (b) the construction and

operation of national trunk roads; (c) standards for the

construction and maintenance of other roads by

counties; (d) railways; (e) pipelines; (f) marine

navigation; (g) civil aviation; (h) space travel; (i) postal

services; (j) telecommunications; and (k) radio and

television broadcasting.

19. National public works.

20. Housing policy.

21. General principles of land planning and the co-

ordination of planning by the counties.

22. Protection of the environment and natural

resources with a view to establishing a durable and

sustainable system of development, including, in

particular— (a) fishing, hunting and gathering; (b)

protection of animals and wildlife; (c) water

protection, securing sufficient residual water, hydraulic

engineering and the safety of dams; and (d) energy

policy.

23. National referral health facilities.

24. Disaster management.

25. Ancient and historical monuments of national

importance.

26. National elections.

28. Health policy.

29. Agricultural policy. 30. Veterinary policy. 31.

Energy policy including electricity and gas reticulation

and energy regulation. 32. Capacity building and

technical assistance to the counties. 33. Public

investment. 34. National betting, casinos and other

forms of gambling. 35. Tourism policy and

development.

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County Government

The functions and powers of the county are—

1. Agriculture, including— (a) crop and animal

husbandry; (b) livestock sale yards; (c) county

abattoirs; (d) plant and animal disease control; and (e)

fisheries.

2. County health services, including, in particular—

(a) county health facilities and pharmacies; (b)

ambulance services; (c) promotion of primary health

care; (d) licensing and control of undertakings that

sell food to the public; (e) veterinary services

(excluding regulation of the profession); (f)

cemeteries, funeral parlours and crematoria; and (g)

refuse removal, refuse dumps and solid waste

disposal.

3. Control of air pollution, noise pollution, other

public nuisances and outdoor advertising.

4. Cultural activities, public entertainment and public

amenities, including— (a) betting, casinos and other

forms of gambling; (b) racing; (c) liquor licensing; (d)

cinemas; (e) video shows and hiring; (f) libraries; (g)

museums; (h) sports and cultural activities and

facilities; and (i) county parks, beaches and recreation

facilities.

5. County transport, including— (a) county roads; (b)

street lighting; (c) traffic and parking; (d) public road

transport; and (e) ferries and harbours, excluding the

regulation of international and national shipping and

matters related thereto.

6. Animal control and welfare, including— (a)

licensing of dogs; and (b) facilities for the

accommodation, care and burial of animals.

7. Trade development and regulation, including— (a)

markets; (b) trade licences (excluding regulation of

professions); (c) fair trading practices; (d) local

tourism; and (e) cooperative societies.

8. County planning and development, including— (a)

statistics; (b) land survey and mapping; (c) boundaries

and fencing; (d) housing; and (e) electricity and gas

reticulation and energy regulation.

9. Pre-primary education, village polytechnics,

homecraft centres and childcare facilities.

10. Implementation of specific national

government policies on natural resources and

environmental conservation, including— (a) soil

and water conservation; and (b) forestry.

11. County public works and services,

including— (a) storm water management

systems in built-up areas; and (b) water and

sanitation services.

12. Fire fighting services and disaster

management.

13. Control of drugs and pornography.

14. Ensuring and coordinating the participation

of communities and locations in governance at

the local level and assisting communities and

locations to develop the administrative capacity

for the effective exercise of the functions and

powers and participation in governance at the

local level.

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iv. Transfer of Function and Powers between Levels of Government54

This provision does allow the two levels of Government to transfer their duties among themselves.

The duties in question are those that are not undertaken “concurrently” but the peculiar obligations

as provided under the Fourth Schedule.55

However, Art 187 (2) (b) raises one’s eyebrows as it seems to leave a lacuna within the same provisions

of the CoK.

Art 187 (2) (b):

[C]onstitutional responsibility for the performance of the function or exercise of the power shall

remain with the government to which it is assigned by the Fourth Schedule.56

Thus, there is high chance that if the NG does dispense it’s duties to the CG the NG will be able to

supervise CG – this is with regards to checking on the Performance. However, the ability of the CG

supervising the NG is quite hard, as the same is not even provided for.

The elusive nature of Art 187 is partially healed by the Art 189 specifically Art 189 (2). It provides that

the NG and CG can come up with committees and joint authorities that will help ease the performance

of functions.57 However, this should be practiced with caution more so when the CG delegates its

duties to the NG, because the two are not that equal – the influence from the NG is immense.58

v. Support for the County Government59

The aforementioned Part of the CoK does provide that the NG shall intervene where it finds that

The CG is underperforming and/or is unable to perform its duties as anticipated. Such initiatives go

hand in hand with allowing the CG have financial management system.

When the NG so deems fit to take up a matter from the CG, it should give notice to the CG. It should

be noted that the NG will only harness that which is prudently necessary. The NG shall assume the

position for purposes of helping stabilizing the CG and/or develop it to a better position; all in all,

the Senate can halt the intervention.

vi. Conflict of Law

Generally, when there is conflict over NL and CL the NL will always prevail. The NL are borne to

address specific matters such as:

The national legislation is aimed at preventing unreasonable action by a county that—

54 Art 187 of the CoK, 2010 55 The CoK, 2010 56 CoK 57 CoK 58 As much as the element of Separation of Powers is not absolute (In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR), the interacting of the two Governments must be spearheaded with caution so that the NG cannot utilize its power to sway the NG. 59 Art 190 of The CoK

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(i) is prejudicial to the economic, health or security interests of Kenya or another county;

or

(ii) impedes the implementation of national economic policy.60

The national legislation provides for a matter that, to be dealt with effectively, requires

uniformity across the nation, and the national legislation provides that uniformity by

establishing—

(i) norms and standards; or

(ii) national policies; or

(c) the national legislation is necessary for—

(i) the maintenance of national security;

(ii) the maintenance of economic unity;

(iii) the protection of the common market in respect of the mobility of goods, services, capital

and labour;

(iv) the promotion of economic activities across county boundaries;

(v) the promotion of equal opportunity or equal access to government services; or

(vi) the protection of the environment.61

However, if the CL does not entail the aforementioned, the CL will prevail over the NL.62 If a prudent

decision cannot be reached, the respective bodies should seek interpretation from the Court. no matter

the outcome of the given judgment the party having the judgment entered against it will not have the

laws invalidated but inoperative to the extent of the inconsistence.63

vii. Suspension of a County Government

This is when there is an emergency arising out of internal conflict or war; or any other exceptional

circumstances.64 The suspension will not halt the running of the CG as the same is addressed under

CG Act,65 it is also asserted some of the legislations that had not been assented by then will cease to

be viable for assentation. The suspension will not last more than ninety (90) days. It is also noteworthy

that the Senate can halt the suspension at any time.

60 Art 191 (2) (b) of the CoK 61 Art 191 (3) (b) & (c) of the CoK 62 Art 191 (4) (supra) 63 Art 191 (5) & (6) (supra) 64 Art 192 (1) (supra); See also, Part XIII of the County Government Act of Kenya 65 Part XIII

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4.0. Conclusion

It is clear that the element of Devolution is worth to a Society like Kenya. Basically, a State that is

deeply affected by tribalism – the tribalism is not a secret in Kenya. It is like the screaming cloths a

beautiful lady will put on in a brightly sunny day. Hence, people tend to cling on the “their own”

analogy, and that makes it hard to experience developments in every part of the Country. With this

Devolution, Kenyans are assured of Development from within unlike waiting for everything from the

NG, so long as the leaders execute their duties and the citizenry not only to keep an eagle eye but take

action like an eagle that has seen a prey.

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