Early drafts of the constitution had more than one level of government below the national. Bomas recommended 14 regions and 74 districts below them. The Committee of Experts eventually opted for a single lower level to avoid a ‘complex system’.
County governments are bound by the constitutional principles in Article 10 and chapter 6 on integrity, good governance, people’s participation, non-discrimination and protection of the marginalised.
Article 174 sets out the specific objectives of devolution: diversity, national unity, democracy and accountability, and economic and social development. It places special emphasis on self-government, particularly the rights of minorities and marginalised communities, and other groups, to manage their own affairs and development. Article 175 requires the promotion of gender equity and equality in counties.
Article 6 (2) commits both county and the national government to their distinct status, but also recognises their inter-dependence. They must conduct their mutual relations on the basis of ‘consultation and co-operation’.
Do the actual design of the Constitution, and its implementation so far, work to achieve the objectives?
The Fourth Schedule of the Constitution lists national and county functions—with much greater allocation to the former. The principal county functions are agriculture (including fisheries); county health services; county transport; cultural activities; animal control and welfare; trade development and welfare; county planning and development; implementing some items of national government on natural resources; firefighting; and county public control of drugs and pornography. They can make law on these topics, and carry out the functions, where appropriate. This is not a huge list and has considerable ambiguity, perhaps deliberately to ensure the dominance of the national government - to which everything else belongs.
At least 15% of revenue raised by the national government is to go to the counties (Art. 203(2)), allocated among them on the basis of formulae developed by the Commission on Revenue Allocation (Art. 216). The Equalisation Fund, (0.5% of all national government revenue (Art. 204)) is distributed to be used for basic services in marginal areas/communities ‘to the level generally enjoyed by the rest of the nation, so far as possible’. Counties can make some money from rates, otherwise their taxing power is very limited. They can make various small charges, such as for licences. In reality, most fail to raise what they target, and overall get about 90% of their revenue through the national allocation.
How is the machinery of devolution working?
Institutional and personal ambitions have hampered some aspects of the workings of the system. The National Assembly has tried to exclude Senate from some of its functions in connection with law making related to counties. Senators have envied Governors their profile, and perhaps their money making opportunities (some gave up the Senate for governorship).
The national executive and Parliament (especially Senate) have not fully accepted the idea that county governments are not just local authorities. Recent examples are the County Wards (Equitable Development), and County Early Childhood Education Bills, introduced in the Senate. When both national and county governments pass overlapping laws on subject within their powers, the courts may have to decide whether there is good reason for a national rather than a county law (Article 191).
Counties, too, are sometimes not very clear what their powers are, especially when it comes to raising money.
There is an elaborate mechanism for liaison between national and county governments. It includes dispute resolution procedures, which have sometimes been ignored, but would not anyway apply if the actual dispute is not between governments, even if the subject is county powers.
The final arbiter of disputes - the courts - have protected counties against some attempts to subordinate them to the Senate, and also held some taxes raised by counties, and some county laws, unconstitutional.
III. Realising the objectives?
Many communities which had little role in the state policies or administration (and were even victims of the brutality of dominant communities) now have some ‘territory’ of their own and can make policies on matters of immediate relevance to them. Leaders of these communities are engaged in various national matters, especially through the Council of Governors.
Small minorities within counties may be less benefited. The Constitution provides that ethnic diversity should be reflected in the county assembly and county executive, and minorities protected. Special membership is granted in the county assembly to people belonging to marginalised groups, including those with disability and the youth (Art. 177). But some minorities feel that they are still excluded.
A somewhat crudely crafted rule says that at least 30% of county appointments must be filled by candidates not from the dominant local ethnic community (County Government Act). However, one study showed that, in 2013-17, in about half the counties, all county executive members came from one ethnic community. The pattern is not very different when looking at the county public services.
For small communities formal representation does not give them the clout to fashion policies, which in many counties seem to be confined to the members of the dominant tribe.
For many years there was no meaningful local democracy; democracy operated only in the choice of President and MP. It could be said democracy is deepened by the multi-centres of power. And more reflection of diversity is clearly more democratic. The impact is weakened by the limited powers of counties and their small size.
Arguably a wider range of parties indicates more democratic choice. While at national level a few parties (in reality ethnic alliances) dominate, in 2017, 39 parties won seats (mostly in county assemblies).
There is a plethora of guidance for counties on how to conduct participation – in the County Governments Act, in Guidelines produced by the Ministry of Devolution, and in counties’ own Public Participation Acts.
Some counties have made participation a reality. Makueni County, particularly, has institutionalised civic education and public engagement. It has trained 990 trainers on public participation and there is a structure of forums from the village to county level.
However, courts have declared a number of pieces of legislation in other counties unconstitutional for lack of participation.
A 2016 report by the Intergovernmental Technical Relations Committee said, ‘… very little has been done to operationalize the [county] legislation by developing regulations, setting up relevant institutions/offices, systems, guidelines and procedures or providing adequate budgetary provisions for public participation.’
There is some evidence that people find it easier to complain to county officials than to national ones. Attempts so far to impeach governors have been unsuccessful (either because not accepted by the Senate or found to have been improperly conducted by the courts).
The principal agents of accountability, as for the national government, are the Controller of Budget and the Auditor General – whose reports have been scathing on the whole. Recent reports have found many counties not giving adequate information to enable a complete audit, and many irregularities were detected. But implementation of these reports, at any level, seems limited.
It is not clear that democratic accountability through elections is any more effective than at the national level.
Promoting economic and social development….
When the new, devolved system of governance began, the economy was expected to improve. A recent KNBS report indicates that agriculture is the fastest growing sector – interesting because agriculture is a major county responsibility, which makes it more likely that growth can be attributed to some extent to a county government. Industrialisation would be mainly a national function.
Significant numbers of counties, especially those hitherto marginalised, have seen definite benefits, with tarred roads and medical services beyond what they had ever seen. But too many counties spend less than the minimum 30% that law requires them to spend (over time) on development, and more than the 35% they should spend on salaries, etc. Some problems arise with delayed sending of money to counties by the national Treasury.
Some groups of counties are forming regional economic blocs that promise well for future development; and may lead to similar associations in other parts of the country.
Groups that now have their ‘own’ government, with funding from the national government, and significant resources are being more integrated into the rest of the country. The Council of Governors provides a good basis for co-operation among counties—and negotiations with the national government. There seems now to be much greater amity among the counties, and some sense of common purpose.
But devolution can generate some disharmony. There are several conflicts between counties about their boundaries. And the imminent census has awakened counties to the significance of their population size, and some governors are trying to ‘poach’ residents of other counties by asking them to register in their ‘home’ counties on census registration night.
Some anticipated that local accountability would be effective; others feared that corruption would be devolved. The pessimists seem to have been proved right.
The reports of both the Controller of Budget and the Auditor General have consistently found not only disregard of law and procedures, and wastage of billions of taxpayers’ funds, but expenditure that clearly indicates corrupt practices. This corruption escalates as the President emphasises integrity.
Various published reports identify weaknesses in implementation, including unnecessary conflicts, weak financial control, poor public participation, inadequate capacity, as well as tribalism and corruption. However, most reports also indicate considerable public commitment to devolution, greater trust in county than national government. In April 2018 an IPSOS poll showed 84% support for devolution with 90% in favour in coast counties.
Reports also tend to indicate that counties are learning and improving. And it is hard to say that counties perform much worse than national institutions.
Devolution has been a controversial subject, and it cannot be said that the Constitution, any more than the Bomas draft, provides a fully thought-out scheme. However, the best option for Kenyans now is to make it work in accordance with the spirit of the Constitution—and the wishes of a significant majority of the people.