Challenges Facing Devolution in Kenya A Comparative Study for HRM

APRIL 2014 CHALLENGES FACING DEVOLUTION IN KENYA: A COMPARATIVE STUDY Ondigi Calvin Nyambane ondigi@outlook.com 4/1/2014 |Page © Ondigi Calvin Nyambane ABSTRACT At independence in 1963, Kenya inherited a highly centralised bureaucracy from the colonial administration which was chiefly sustained through the institution of provincial administration to facilitate direct rule and govern alongside civil service This system termed ‘majimbo’ failed later because it was not based on a sound principle of political governance among other problems including financial independence Kenya afterwards adopted the system of Local Government which was the country’s most substantive experience with devolution prior to the promulgation of a new Constitution on 27 th August 2010 This Constitution came at a time when Kenya was mature and prepared for a radical change from the centralised systems the colonialists had nurtured The Constitution designed an impeccable devolution structure that was primarily to ensure power was brought nearer to the people who would in return exercise that power for the development of their own good But devolution was being implemented all over again and the transition process has been problematic So far therefore, devolution has been facing a number of challenges that has been the sole reason for under optimisation of its performance The fact that it is to its extent nascent, it has been subject to intergovernmental, administrative, legislative, policy, institutional among other conflicts The discourse that follows seeks to address these challenges vis-à-vis other countries especially how they have addressed such challenges and how their devolution structures is distinguishes itself from the Kenyan system To prevent devolution from collapsing just as those of the yesteryears, it calls for a proper investigation on these issues and how such issues may be addressed So far, a number of legislative, policy and institutional measures have been put in place to address these issues including the formation of a taskforce to address the attendant pitfalls on devolution so far, the previous numerous devolution bills that were yet to be enacted have been passed as law and various forums to sensitize the citizens on devolution have been steered i|Page LIST OF CASES Isaac Aluoch v Independent Electoral and Boundaries Commission and 19 others Supreme Court of Kenya Petition No of 2013 Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & others [2012] eKLR Hon Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs and another, Petition No 198 of 2011 Consolidated with Petition No 166 of 2011 And 172 of 2011; [2012] eKLR Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another [2011] eKLR Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High Court Petition No 44 of 2011 In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate Sup Ct Appl No of 2012 The Speaker of the Senate & the Senate of the Republic of Kenya v the Attorney General & the Speaker of the National Assembly (2013) eKLR (Supreme Court Advisory Opinion Reference No of 2013) Isaac Aluoch v Independent Electoral and Boundaries Commission and 19 others Supreme Court of Kenya Petition No of 2013 Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & others [2012] eKLR 10 Hon Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs and another, Petition No 198 of 2011 Consolidated with Petition No 166 of 2011 And 172 of 2011; [2012] eKLR 11 Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another [2011] eKLR 12 Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High Court Petition No 44 of 2011 13 In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate Sup Ct Appl No of 2012 14 The Speaker of the Senate & the Senate of the Republic of Kenya v the Attorney General & the Speaker of the National Assembly (2013) eKLR (Supreme Court Advisory Opinion Reference No of 2013) ii | P a g e LIST OF STATUTES Constitution of Kenya of 2010 County Government Act, No 17 of 2012 Transition to Devolved Government Act, No of 2012 Inter-governmental Relations Act No of 2012 Urban Areas and Cities Act No of 2012 County Government Financial Management Act No of 2012 The National Financial Management Bill Chiefs Act, Cap 128, Laws of Kenya Elections Act, No 24 of 2011 10 International Covenant on Civil and Political Rights UN General Assembly Resolution 2200A (XXI) iii | P a g e CONTENTS ABSTRACT i LIST OF CASES ii LIST OF STATUTES iii CONTENTS iv INTRODUCTION LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA 3 2.1 Objects and Principles of Devolved Government 2.2 County Governments 2.3 Functions and Powers of County Governments 2.4 The Boundaries of Counties 2.5 Relationships between Governments 2.6 Suspension of County Governments ATTENDANT PITFALLS OF DEVOLUTION IN KENYA 3.1 Devolution and Human Rights 3.2 Devolution and Separation of Powers 3.3 Devolution and Optimality 3.4 Devolution and the issues of Housing and Staffing 10 3.5 Devolution and Revenue Allocation and Expenditure 11 3.6 Devolution and the Transfer of Functions and Resources 12 3.7 Devolution and Health Care 12 3.8 Devolution Participation and Ignorance 14 3.9 Devolution and Kenyan Business 14 A COMPARATIVE ANALYSIS OF DEVOLUTION: LESSONS LEARNED FROM SOUTH AFRICA 15 4.1 Infrastructure 15 4.2 Capacity building 15 4.3 Finance 16 4.4 Legislation 16 iv | P a g e 4.5 Transformation 16 CONCLUSION AND RECOMMENDATION 17 5.1 CONCLUSION 17 5.2 RECOMMENDATION 17 5.2.1 Civic education 17 5.2.2 Safeguarding integrity in the process 18 5.2.3 Capacity for implementation 18 5.2.4 Financing 18 5.2.5 Oversight framework 18 5.2.6 The regional integration process 19 BIBLIOGRAPHY 20 A BOOKS 20 B REPORTS 20 C NEWSPAPER ARTICLES 20 D WEBSITE ARTICLES 20 v|Page © Ondigi Calvin Nyambane 0|Page INTRODUCTION The Black’s Law Dictionary defines devolution as the act or an instance of transferring one’s rights, duties or powers to another.1 It is the practice in which the authority to make decisions in some sphere of public policy is delegated by law to sub-national territorial assemblies (e.g., a local authority) and entails transferring governmental or political authority It is a political device for involving lower-level units of government in policy decision-making on matters that affect those levels.2 Devolution is premised on the rationale that institutions closest to the citizens are the most likely to meet and properly articulate needs of the citizen 3It is estimated that 40% of the world’s population lives under some form of devolution visible across the Commonwealth4 and Africa.5 The concept of devolution has also been constitutionalised in the world’s oldest Constitution’s.6 The concept of devolution takes the form of confederal systems which permit independent political units to come together for strictly limited purposes7, federal system which has government like units exercising powers delegated to it by the people and decentralised systems which is issue based.8 These systems provide for a distinct structure with responsibilities, functions, inter-relations, financial and resource control and system of representation.9 In Kenya, this concept is not nascent being a constitutionally devolved State at independence Constitutional power was transferred to the respective regions which enjoyed tax concession and financial powers This system of devolution was popularly dubbed majimbo a constitutional term for a federalist system.10 It was however abolished de jure Bryan A Garner, Black’s Law Dictionary 9th Edition 518 Constitution of Kenya Review Commission (hereinafter CKRC) Main Report (2005) 223-242 Katalin T, ‘the Impact of Decentralisation on Social Policy’, LGPA/OSI, Budapest, 2003 The author argues verbatim that, ‘… decentralization which provides that power over the production and delivery of goods and services should be handled over to the lowest unit capable of dealing with associated costs and benefits Canada, India, Malaysia, Australia, South Africa, Nigeria, Pakistan and Britain Nigerian and Ethiopian federations United States of America, Switzerland and Canada whose Constitutions are federal The most extensive systems of devolution are those associated with systems of government whereby several states unite as is the case in Switzerland and the emerging European Union Such purposes include foreign affairs, defence and/or economics Ibid note at 233 Ibid at 234 10 SID Constitution Working Papers No 4, ‘Devolution in Kenya’s new Constitution’ 26 1|Page through a National Assembly decision and [has] faced criticism on its practicability on the ground that it resulted to divisions of the country into autonomous ethnic homelands.11 The Independence Constitution of 1963, [with amendments] did not make direct provisions for devolution but some aspects of devolution were inherent For instance, there was a system of local government12 whose primary function was to inter alia render services to residents including markets, social welfare, liquor sales regulations and land use planning.13With respect to funding, the central government played this role though it has been criticised that lack of constitutional protection exposed the system to manipulation, corruption and unbridled plenary powers to the minister of local government.14 There was also a system of provincial administration to deconsecrate the powers in the central government It was responsible for providing leadership, policy direction and secure environment in order to achieve social, economic and political stability.15 The system was criticised for being authoritarian and paternalistic entrenched with corruption, misuse of power and abuse of citizens’ rights.16 Progressively, Kenya promulgated a transformative new Constitution on 27th August 2010 which paved way for the realization of the quest for a devolved system of governance.17 This has definitely come with a tonne of challenges considering the fact that implementation of the entire devolution process has been barely three years The following discourse proceeds to root out this challenges facing devolution in Kenya vis-à-vis other countries and how such challenge has been countered in other jurisdictions But first, it sets the Constitutional foundation of devolution in Kenya as provided under the Constitution of Kenya, 2010 11 Supra note at 229 See, the Local Government Act, Cap 265, Laws of Kenya 13 Supra note at 231 14 Ibid 15 The structure was made up of provincial commissioner, district commissioner, district officer, chiefs and sub-chiefs The chiefs, including the sub-chief had the widest variety of administrative and law and order powers See Chiefs Act, Cap 128, Laws of Kenya 16 Supra note at 233 17 Gabriel Lubale, ‘An introduction to the County Governments of Kenya’ (as of 12 September 2012) at February 2014 12 2|Page LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA The legal framework within which devolved government evolves and derives its mandate include the Constitution of Kenya of 2010, County Government Act,18 Transition to Devolved Government Act,19 Inter-governmental Relations Act,20 Urban Areas and Cities Act21 and the County Government Financial Management Act.22 However, for the purpose of this research, the provisions of the Constitution seem most appropriate and thus, the discussion will be tied to the provisions thereunder 2.1 Objects and Principles of Devolved Government The objects are to promote democratic and accountable exercise of power, foster national unity; give powers of self-governance to the people and enhance the participation,23allow communities to manage their own affairs and further their development, protect and promote the interests and rights of minorities and marginalised communities, promote social and economic development and the provision of services throughout Kenya, ensure equitable sharing of national and local resources throughout Kenya, facilitate the decentralisation of State organs, and enhance checks and balances and the separation of powers.24 Moreover, democratic principles, the doctrine of separation of powers, the principle of financial independence and the two-third gender rule25 apply 18 No 17 of 2012 Provides for County Government’s powers, functions, and responsibilities to deliver services as established by the Constitution 19 No of 2012 Looks at the process of transitional arrangements to the full operationalization of the county government It basically provides for a framework that will ensure a smooth and co-ordinated transition to county governments 20 No of 2012 Establishes a framework for co-operation and consultations between National and County governments It sets out ways of ensuring that there is proper horizontal relations between the county governments, cities, municipalities and urban areas as these relations will in the long run determine the success of the systems of government It also covers the mechanisms for the transfer of functions between governments as well as the resolution of disputes among governments 21 No of 2012 Article 184 of the Constitution recognises the unique nature of urban areas and cities and provides for implementation of an additional legislation to establish criteria for classification, principles of governance and management and participation by residence in governance of such areas, consequently, this statute lays specific emphasis on the classification and establishment of urban areas, their management, as well as effective governance within counties 22 No of 2012 Seeks to enhance management of finances at the county government It complements the National Financial Management Bill It gives details of how funds should be managed at the County and sub-county levels 23 Ministry of Justice and Constitutional Affairs and Commission for the Implementation of the Constitution, ‘Report of the Conference on Development of a Public Participation Framework’ (24-26 September 2012) 1-4 24 Article 174 25 Article 197 reiterates this position that not more than two-thirds of the members of any county assembly or executive committee shall be of the same gender 3|Page commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified and the Senate authorises the suspension The Senate may however terminate the suspension at any time and such suspension shall not extend beyond a period of ninety days after which the relevant county government shall be held.48 ATTENDANT PITFALLS OF DEVOLUTION IN KENYA Considering the fact that devolution is fairly new, it is grappling with a number of challenges For the purpose of addressing these, the subsequent paragraphs categorise this challenges into specific subsections which include devolution vis-à-vis pitfalls emerging from the Constitution or other relevant legislations on the devolution process including human rights, affirmative action, from the society general including the issue of participation, and ignorance and from the broader universal issues including the transaction of business 3.1 Devolution and Human Rights According to Mutakha Kangu, county governments have a role in the delivery of social justice which is the primary objective of devolution49and is a measures to address systematic ethno-regional discrimination and inequality but has been challenged in the following ways.50First, devolution has been accused to be against certain inalienable rights51 including the principles of non-discriminatory and equality52 where it seeks to place academic qualifications for persons seeking the positions of Governor for instance.53The court affirmed that, the inclusion of academic qualification not only discriminated directly on the basis of status and social origin but considering the statistics on girl-child and women 48 Article 192 Sheila Masinde in Kenya National Commission on Human Rights ‘Nguzo za Haki’ (April 2012) Issue 11 the Devolution Issue See also Article 174 of the Constitution of Kenya, 2010 50 The Equal Rights Trust & Kenya National Human Rights Commission, ‘In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya’ XXII, 34, 258 51 They belong innately to individuals rather than being the product of state benevolence See supra note 10 at 25 52 Article 27 of the Constitution of Kenya, 2010 53 See section 24(2) (c) of the Elections Act, No 24 of 2011 49 7|Page education in Kenya and the cultural gender biases on that subject, the provision also indirectly discriminated on the basis of gender 54 Second, the inclusion of academic qualification to vie for political seats has been criticised to be contrary to the free individual’s right to make political decisions and the national values and principles of democracy which are codified under the Constitution55 and the International Covenant on Civil and Political Rights56 a law in Kenya.57 The argument follows that limiting citizens to be candidates for public office is tantamount to dilution of democracy through disallowing citizens to exercise their choice of leaders and is illegitimate to some extent.58 Third, the Constitution calls for affirmative action to ensure that gender parity and the specific implementation of the two third principle59into county offices However, this has been a major pitfall that devolution has been unable to patch and the ‘at least a third rule’ which was designed to ensure adequate representation of women and other historically marginalised groups in the devolved structures has not been met.60 The courts have been put to task to enforce this provision which was problematic reconciling.61 It was even more challenging for the courts to decide whether such threshold would be realized immediately or progressively.62 54 Hon Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs and another, Petition No 198 of 2011 Consolidated with Petition No 166 of 2011 And 172 of 2011; [2012] eKLR 55 Articles 10(2) and 38 of the Constitution of Kenya, 2010 56 See Article 25 Adopted and opened for signature, ratification and accession by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 Text: United Nations, Treaty Series, vol 999, 171 (entered into force 23 March 1976) Ratified in Kenya on May 1st 1972 57 Article 2(6) of the Constitution of Kenya 2010 58 Supra note 53 59 Article 27(8) and 175(c) of the Constitution of Kenya, 2010 provides for the State to take measures to implement the principle that not more than two-thirds of the members of elective bodies shall be of the same gender 60 Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities two months on’ (as of 11 June 2013) February 2014 61 Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another [2011] eKLR 62 See ibid where Mumbi J upholding the previous decision of Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High Court Petition No 44 of 2011, stated that the principle of progressive realisation was only applicable to those circumstances where an allocation of limited resources was required; see also In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate Sup Ct Appl No of 2012; See also, The Speaker of the Senate & the Senate of the Republic of Kenya v the Attorney General & the Speaker of the National Assembly (2013) eKLR (Supreme Court Advisory Opinion Reference No of 2013) where the Supreme Court held against immediate realisation an for progressive realisation 8|Page 3.2 Devolution and Separation of Powers First, the Constitution expressly provides that the national and county governments are distinct in addition to the principle of separation of powers.63However, among the biggest challenge as expressed by one Governor in Kenya is ‘leaders bickering over boundaries of their mandate’64which may be translated to interference from other State organs and institutions For the time being, it has been evidenced that there is a misunderstanding between the doctrine of separation of powers and its counterpart principle of checks and balances the latter being misinterpreted or confused or replaced with interference It is for this reason that in the Wambora decision, the court was at war with the other organs of the State which termed its judicial over the case as a complete interference of the functions of Parliament exercising its functions under the Constitution to impeach a Governor There has also been a tag of war between the Governors and the Senators, the Senators and the National Assembly members and Executive, Judiciary and the Legislature in general 3.3 Devolution and Optimality Among the major pitfalls of devolution is ‘determining the optimal level that resolves perceived problems without providing an alternative threat to cost-effective service delivery’.65 It has been illustrated that this optimality refers both which functions and resources to devolve to and level[s] to devolve to.66Optimality creates a number of concerns for devolution especially on the quantity and quality of participants/participation The Constitution assumes that a majority of the participants know the objective while such may be misinformed and parochial at the detriment of the beneficiaries Moreover, commitment to participation may be lacking and the demands of people may be on power rather than efficacious development 63 See Articles 6(2) and 175(a) of the Constitution of Kenya, 2010 Ahmed Abdullahi (Governor), ‘Wajir County:Great strides realised in development’ (4 April 2014) Daily Nation 65 Rodriguez-Pose, A and N Gill (2003) The Global Trend towards Devolution and Its Implications, Monograph, Department of Geography and Environment, London School of Economics, UK 66 Supra note 10 at 4-5 64 9|Page Second, optimality may result to the transfer of inequalities to the detriment of devolution For instance, where institutions are non-existent or weak, chances of bad governance are eminent in managing devolved responsibilities for which initial inequalities may result to further deepening inequalities in a county region Inequalities may also result to transfer of inefficiencies for instance the concern on devolving corruption or nepotism Devolution in this case is unlikely to be a solution since, national bottlenecks are replicable at subnational levels Moreover, replication extend to elite capture of mega corruption at national level to petty corruption by subnational elite but with the same impact.67 The risks above call for an eclectic design and implementation of devolution that considers the objective initial circumstances of the prospective devolved units, rather than employing a single national framework and timetable that are insensitive to variations in circumstances Thus, while devolution assumes greater involvement of and participation by target communities in needs assessment, policy design, implementation and oversight; such participation may remain merely symbolic Indeed, it behoves the designers of the devolution framework to build in checks and balances against devolved abuse of power.68 This defect may also be cured through the application of the principles of citizen participation in County Government.69 3.4 Devolution and the issues of Housing and Staffing Staffing has been a headache to the proper dispensation of the role of the county governments First it has been of issue how such large numbers of staff inherited from the previous municipal counties would be absorbed including provisions for the requisite housing facilities for the Governors, their deputies, county assembly ministers and legislatures and the general staff This problem has been acknowledged by a number of counties so far in that, compared to the amount of funds received from the national government, much of it is diverted to offset a huge wage bill that leaves less funds to be dedicated to 67 Ibid at Ibid 69 See the County Government Act 2012 68 10 | P a g e development Ironically, county assembly authorities, like their national counterparts are advocating for increased remuneration and benefits beyond the $1500 monthly package.70 It may also be argued that, if the employees are deficient of proper working structures or places to live, chances are that such individuals will perform less The issue of housing has been evidenced problematic where some County Ministers are working under unstructured offices or no offices literally and it is also tricky since the County Executive may dedicate more funds to the construction of the executive housing structure at the expense of the development funds.71 This issue is also related to the sourcing of professional services and personnel who can only be attracted based on a presentable remuneration package The lack of which optimization of devolution is impossible 3.5 Devolution and Revenue Allocation and Expenditure Revenue allocation is also proving to be a divisive issue By law, counties are entitled to least 15% of the total National Revenue collected Despite many counties currently enjoying adequate funding, there is still a feeling that budgetary allocations need to be increased, and that the central government is reluctant to this Many county governors have since launched a spirited campaign to that effect and have interpreted the perceived national government reluctance as a ploy to frustrate the effectiveness of devolved units On closer scrutiny though, the reality, as with the transfer of power, is that county governments not have the absorption capacity for more than 15% of the national government revenue which is also argued to be low according to international standards.72 In the Philippines, for example, the unconditional grant share for lower levels of government is 40 per cent of revenues, plus a share in taxes while in South Africa, it is about 36 per cent of revenues through its equitable sharing formula in 2012 Based on Commission on Revenue Allocation recommendations, Kenya’s guaranteed share is too low for the functions they are to perform This fact that counties are 70 Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities two months on’ (as of 11 June 2013) February 2014 71 Gender Governance Programme in Kenya, ‘County Governments to Face Serious Housing Challenges’ (as of February 2014) < gendergovernancekenya.org> at February 2014; Gabe Joselow, ‘Fighting for Space: Kenya Faces Devolution Challenges’ (as of 15 May 2013) at February 2014 72 Supra note 70 11 | P a g e guaranteed less than what they need suggests that their independence can be undermined.73 Moreover, the Constitution gives national government the administrative power to reduce county financial control by forcing counties to spend money in particular ways 3.6 Devolution and the Transfer of Functions and Resources This issue is also problematic to the entire realisation of the benefits of devolution World Bank has hence urged the Government to devise a proper mechanism of sharing of national resources between the future counties and the national Government in order to ensure the promise of devolution is achieved.74 It has also been contested that the Government should have transferred all the functions under the Fourth Schedule rather than resort to the piecemeal transfer of functions that has taken place so far.75 This is because part of county governments that officials of the national government and local government structures being phased out remain resentful of the invasion of their previous scope of authority It is common in decentralised systems for various levels of government to shift the blame for service delivery to other levels, which is facilitated by insufficient clarity of roles Unfortunately, Kenya is off to a slow start in this regard as there have been serious delays in the process of assigning functions to each level based on the Fourth Schedule of the Constitution Kenya needs to have a broader discussion about how all resources flowing to counties conditional and unconditional alike should be organised and shared to ensure inequalities are reduced, not exacerbated, by devolution.76 3.7 Devolution and Health Care The Kenya 2010 Constitution guarantees health for all Kenyans.77 Devolution of health system is vital to promote access to health services throughout Kenya, address the issues of discrimination of areas, 73 Jason Lakin, ‘It’s here! The challenge of devolution’ (as of 16 March 2013) at February 2014 ‘World bank cautions on devolution challenges’ (as of 24 October 2012) at February 2014 75 Supra note 70 76 Jason Lakin, ‘It’s here! The challenge of devolution’ (as of 16 March 2013) at February 2014 77 These include the right to life, clean and healthy environment, highest attainable standard of health (including the right to health care services and reproductive health care), child’s rights to basic nutrition, shelter and health care and affirmative action programmes designed to ensure that minorities and marginalised groups have reasonable access to water, health services and infrastructure See Articles, 26, 42, 43(1), 53(1) and 56 74 12 | P a g e problems of bureaucracy and low quality health services and promote efficiency in the delivery of health services.78 However, the devolution of such vital service has so far been met with gross opposition from the professionals from that field This is because, many health workers in the civil service are questioning the government’s rationale to devolve health services, for instance, while health workers have opposed the move to transfer their salaries to the counties, the government insists that health being one of the devolved functions, must be handled at the county level79while other challenges are still pending.80 While all these fears exist, devolution presents an incredible opportunity to build a healthier Kenya This potential can only be realised through Public Private Partnerships because no single organisation or governance structure can go the devolution journey alone It is impossible to devolve quality and accessible health services without sufficient skilled and evenly distributed health workers To ensure health workers especially in rural areas have relevant skills to serve Kenyans, public private partnerships can offer quality capacity building programmes to those who lack access to continuous professional development.81 During the first year of devolution in Philippines, there were similar challenges as they are in Kenya, but that was only during the first year For instance, there was decreased hospital occupancy and health centre utilization, decreased procurement of drugs and medical supplies, decreased maintenance and operating expenses for health facilities, loss of managerial and fiscal control of hospital administration, resignation of key personnel, low staff morale, problem worsened by perceived political recruitment and retention of health staff among others82 But the State recuperated from all these and is now stable with devolved health care 78 Onesimus Kipchumba Murkomen, Devolution and the Health System in Kenya’ (24 October 2012) USAID, Health Policy Project 26-50 79 Paschal Manyuru, ‘Public-private partnerships key to healthcare devolution’ (as of September 2013) at February 2014 80 Other challenges include establishment of physical structures, recruitment of health workers, restructuring, quality, affordability and accessibility related issues as well as high disease burden, changing disease patterns, inefficiency and lack of accountability that have not yet been addressed 81 Ibid note 79 82 Grundy J, Healy V, Gorgolon L, Sandy E Overview of devolution of health services in the Philippines at February 2014 13 | P a g e 3.8 Devolution Participation and Ignorance It has been argued that majority of Kenyans lack knowledge on devolved government83and it is ironic that Kenyans have high anticipation and expectation of devolution But it is compulsory that the public be alive to the fact that devolved units will have to respect the principle of national and county government as stipulated by under Article 10, 174 and 196 of the Constitution This will enhance responsible governance and accountability to the people as well as community-based monitoring and advocacy for transparency and accountability Closely related to leadership and integrity, are the national values and principles of governance that should guide us as a country and as individuals in spirit and practice Participation is vital in devolution because of a tonne of reasons Among them, it forms an avenue through which the leaders are accountable to the people and it also allows for the public to participate directly in making decisions for themselves and ensure the management of resources This will provide an avenue to disseminate, review and discuss socio-economic development issues and provide an opportunity for citizens to keep their leaders in check and monitoring the utilisation of public resources through which citizens have an opportunity to scrutinise the use of public resources.84 3.9 Devolution and Kenyan Business Devolution has a possible impact on the Kenyan economy for instance, counties expected to develop through their own initiatives and possibly policies, provides an opportunity for individual counties to mobilize savings at county level for investments within the counties, creates a window for raising equity and debt capital for expansion by institutions at county level, will result in general increase in supply, distribution and access to goods and services through decentralization increased access to financial services such as banking, capital markets, insurance and fund management.85 83 Robert Wanjala, ‘Majority of Kenyans lack knowledge on devolved government ‘Issue (16-30 April 2013) Issue 081 Reflect p.4 84 Ibid 24-26 85 Stella Kilonzo (CEO, Capital Markets Authority Kenya), ‘Governance and Business in a Devolved System in Kenya’ (22 March 2011) 13-20 14 | P a g e This poses a challenge to devolution which include, immediate results from business community on increase of financial mediation services and investment initiatives at devolved levels It also becomes problematic to the debate within the business community on whether devolution poses a challenge to integration of the EAC Partner States as the economy is being split into smaller economic units as has been witnessed in the European Union Moreover, while devolution creates opportunities for capital raising and financial intermediation, there are several levels of approval, and certain decisions will have to be endorsed by the Central Government.86 A COMPARATIVE ANALYSIS OF DEVOLUTION: LESSONS LEARNED FROM SOUTH AFRICA87 The implementation of a devolved government system in South Africa is a prime example of those challenges and how they were dealt with The first challenge is the process of developing policy objects which brings the Constitution to life These policy objectives need to be enacted in legislation and then implemented The challenge of implementation in South Africa was vast, due mainly to the previously disproportionate allocation of resources between the various population groups The country was redemarcated which resulted in nine provinces, originally there were four and 287 local government entities created through the amalgamation of 823 local government entities Below are some of the challenges and how they have been addressed: 4.1 Infrastructure If you want decentralised growth you need good roads and a solid transport system In South Africa, it was essential to address past inequalities with new housing, services repairs and the maintenance of existing infrastructure and new structures 4.2 Capacity building Decentralising human capacity/skills is possibly the biggest challenge to successfully devolving government functions People generally not like change The process of building decentralised 86 Ibid Roy Kerr, ‘Devolution: Lessons learned from other countries’ in Price Waterhouse Coopers (hereinafter PWC), Public Sector Insight: Governance and Leadership in the Public Sector’ (June 2013) Issue at p 87 15 | P a g e capacity is slow and difficult In South Africa, the government employed private firms to provide management support teams for the first ten years of the implementation as the devolved entities built and, more importantly, retained capacity Almost 15 years since the new South African Constitution was adopted, capacity in 25% of local authorities remains a challenge This results in poor service delivery and many disclaimer audit reports 4.3 Finance The equitable distribution of nationally collected revenue can assist the devolution process In South Africa, however, many devolved government entities remain poorly funded They have been unable to raise sufficient revenue from local taxes and service charges The South African National Treasury estimates that 42% of local government revenues are generated locally with the remaining 58% of their income coming from national revenue, grants and donations Economic growth at the local level drives up tax revenues In South Africa, an essential first step was the development locally of an economic development strategy crafted by the local government entity with input from the community 4.4 Legislation Nationally promulgated legislation foments the enactment of the Constitution but it still requires local by-laws and implementation guidelines to move devolution forward South African provinces and local government have passed a large number of minor but important pieces of legislation to make sure devolution works well in practise 4.5 Transformation Transformation of government from a centralised to a devolved system is a slow process The creation of 47 new County governments in Kenya, the process of establishment and the incorporation of previously existing entities and structures at the local level is time consuming In South Africa, most new processes and activities usually take more than one attempt to achieve effective implementation A change management strategy for each devolved entity and government organisation is an essential part of the implementation process for the devolved government system The overall lesson learned in South 16 | P a g e Africa was not to under-estimate the task of implementing devolved government and to use all resources available from the public and private sectors CONCLUSION AND RECOMMENDATION 5.1 CONCLUSION Indeed devolution is of vital importance in a State because it ensures that there is de-concentration of the power from a central government closer to the people who had initially given such government power More importantly is the fact that services and resources are used closer to the individuals to their benefit In Kenya, this should be the case but it seems it would take time before the fruits of devolution are bore This is a result of the pitfalls grappling devolution in Kenya that may be detrimental to the entire devolution process It is therefore prudent that such issues be resolved well in time so that Kenya does not get itself in the position where the former devolution status previously were and to the point of collapse 5.2 5.2.1 RECOMMENDATION Civic education The failure to enlighten the citizenry on its contents could lead to disillusionment on devolution generally For instance the provisions of the Fifth Schedule would benefit greatly from such civic education since the constitution drafters left some issues for broader public determination Such a civic education programme needs to be undertaken expeditiously Moreover, most people in Kenya remain ignorant about the expected operations of devolved governments.88 The national government should invest in massive civic education to help citizens understand the concept of devolution, their role in the transition to devolved government and responsibilities in decision making The provisions on participation under the County Government Act should also be implemented 88 CISA News, ‘KENYA: Ignorance a Bog Challenge to the Devolution Process’ (as of September 2013) at February 2014 17 | P a g e 5.2.2 Safeguarding integrity in the process With respect to issues of integrity in national leadership, there is an urgent need to draw on deterrence as a means of raising the stakes against transgressions Too many Kenyan leaders have acted with impunity and faced no sanctions To this end, the institutions bestowed with safeguarding integrity such as the Kenya Anti-Corruption Commission should be more vigilant as far as the process of devolution is concerned The public should also be more vigilant especially during the public vetting processes regarding the qualification of certain public officers 5.2.3 Capacity for implementation There is a great need to assess the capacity and other resource needs for the successful implementation of the devolution agenda There is an urgent need to update the national household welfare database to enable Commission on Revenue Allocation to undertake small area analysis at the sub-location and ward levels at which resources should be allocated, to replace the current analysis and allocations based on the district and constituency Further, there is need to develop short courses emphasizing good governance alongside core technical training, which should become mandatory for individuals desiring to hold county offices 5.2.4 Financing On funding assignation, it is critical that Commission on Revenue Allocation understand its role, which is to justify what share above the 15 per cent floor the Treasury should set aside for the counties This will require Commission on Revenue Allocation to have adequate resources to undertake multi sector financing gap studies Additionally, it is vital that civic education on the equity implications of devolution be undertaken, i.e., on how and with what objectives national resources will henceforth be shared 5.2.5 Oversight framework In the process of developing the frameworks on the functions of governments, it will be necessary to develop an autonomous oversight framework that monitors the scope for synergy between national and county level sectorial interventions, and among the counties themselves It should not be taken for granted that sector operatives at the national and county levels will work harmoniously 18 | P a g e 5.2.6 The regional integration process Finally, it is important to start thinking, even at this seemingly early stage, about the implications for devolution of Kenya’s accession to the revived and enlarged East African Community, whose benefits will include the freedom of movement and employment across the international boundaries This is especially important for counties on international borders 19 | P a g e BIBLIOGRAPHY A BOOKS Bryan A Garner, Black’s Law Dictionary 9th Edition Rodriguez-Pose, A and N Gill (2003) The Global Trend towards Devolution and Its Implications, Monograph, Department of Geography and Environment, London School of Economics, UK B REPORTS Constitution of Kenya Review Commission (hereinafter CKRC) Main Report (2005) 223-242 Ministry of Justice and Constitutional Affairs and Commission for the Implementation of the Constitution, ‘Report of the Conference on Development of a Public Participation Framework’ (24-26 September 2012) Sheila Masinde in Kenya National Commission on Human Rights ‘Nguzo za Haki’ (April 2012) Issue 11 the Devolution Issue 25 The Equal Rights Trust & Kenya National Human Rights Commission, ‘In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya’ XXII, 34, 258 SID Constitution Working Papers No 4, ‘Devolution in Kenya’s new Constitution’25 C NEWSPAPER ARTICLES Ahmed Abdullahi (Governor), ‘Wajir County: Great strides realised in development’ (4 April 2014) Daily Nation Robert Wanjala, ‘Majority of Kenyans lack knowledge on devolved government ‘Issue (16-30 April 2013) Issue 081 Reflect p.4 D WEBSITE ARTICLES Katalin T, ‘the Impact of Decentralisation on Social Policy’, LGPA/OSI, Budapest, 2003 Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities two months on’ (as of 11 June 2013) February 2014 Gender Governance Programme in Kenya, ‘County Governments to Face Serious Housing Challenges’ (as of February 2014) < gendergovernancekenya.org> at February 2014; Gabe Joselow, ‘Fighting for Space: Kenya Faces Devolution Challenges’ (as of 15 May 2013) at February 2014 20 | P a g e Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities two months on’ (as of 11 June 2013) February 2014 Jason Lakin, ‘It’s here! The challenge of devolution’ (as of 16 March 2013) at February 2014 ‘World bank cautions on devolution challenges’ (as of 24 October 2012) at February 2014 Paschal Manyuru, ‘Public-private partnerships key to healthcare devolution’ (as of September 2013) at February 2014 Onesimus Kipchumba Murkomen, Devolution and the Health System in Kenya’ (24 October 2012) USAID, Health Policy Project 26-50 Paschal Manyuru, ‘Public-private partnerships key to healthcare devolution’ (as of September 2013) at February 2014 10 Grundy J, Healy V, Gorgolon L, Sandy E Overview of devolution of health services in the Philippines at February 2014 11 Stella Kilonzo (CEO, Capital Markets Authority Kenya), ‘Governance and Business in a Devolved System in Kenya’ (22 March 2011) 13-20 12 CISA News, ‘KENYA: Ignorance a Bog Challenge to the Devolution Process’ (as of September 2013) at February 2014 13 Gabriel Lubale, ‘An introduction to the County Governments of Kenya’ (as of 12 September 2012) at February 2014 21 | P a g e [...]... During the first year of devolution in Philippines, there were similar challenges as they are in Kenya, but that was only during the first year For instance, there was decreased hospital occupancy and health centre utilization, decreased procurement of drugs and medical supplies, decreased maintenance and operating expenses for health facilities, loss of managerial and fiscal control of hospital administration,... 192 Sheila Masinde in Kenya National Commission on Human Rights ‘Nguzo za Haki’ (April 2012) Issue 11 the Devolution Issue 1 See also Article 174 of the Constitution of Kenya, 2010 50 The Equal Rights Trust & Kenya National Human Rights Commission, In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya XXII, 34, 258 51 They belong innately to individuals rather than being the... 2013) 7 February 2014 3 Gender Governance Programme in Kenya, ‘County Governments to Face Serious Housing Challenges (as of 7 February 2014) < gendergovernancekenya.org> at 7 February 2014; Gabe Joselow, ‘Fighting for Space: Kenya Faces Devolution Challenges (as of 15 May 2013) at 7 February 2014 20 | P a g e 4 Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities... universal issues including the transaction of business 3.1 Devolution and Human Rights According to Mutakha Kangu, county governments have a role in the delivery of social justice which is the primary objective of devolution4 9and is a measures to address systematic ethno-regional discrimination and inequality but has been challenged in the following ways.50First, devolution has been accused to be against... national values and principles of governance that should guide us as a country and as individuals in spirit and practice Participation is vital in devolution because of a tonne of reasons Among them, it forms an avenue through which the leaders are accountable to the people and it also allows for the public to participate directly in making decisions for themselves and ensure the management of resources... own initiatives and possibly policies, provides an opportunity for individual counties to mobilize savings at county level for investments within the counties, creates a window for raising equity and debt capital for expansion by institutions at county level, will result in general increase in supply, distribution and access to goods and services through decentralization increased access to financial... devolution creates opportunities for capital raising and financial intermediation, there are several levels of approval, and certain decisions will have to be endorsed by the Central Government.86 4 A COMPARATIVE ANALYSIS OF DEVOLUTION: LESSONS LEARNED FROM SOUTH AFRICA87 The implementation of a devolved government system in South Africa is a prime example of those challenges and how they were dealt with... communications, national public works, housing policy, land planning, environment and natural resources, national referral health facilities, disaster management, ancient and historical monuments of national importance, national elections, health, agricultural, tourism, veterinary and energy policies, capacity building and technical assistance to the counties, public investment, national betting See the... where institutions are non-existent or weak, chances of bad governance are eminent in managing devolved responsibilities for which initial inequalities may result to further deepening inequalities in a county region Inequalities may also result to transfer of inefficiencies for instance the concern on devolving corruption or nepotism Devolution in this case is unlikely to be a solution since, national... recommendations, Kenya s guaranteed share is too low for the functions they are to perform This fact that counties are 70 Mugambi Laibuta, ‘Implementing devolution in Kenya: Challenges and opportunities two months on’ (as of 11 June 2013) 7 February 2014 71 Gender Governance Programme in Kenya, ‘County Governments to Face Serious Housing Challenges (as of 7 February 2014) < gendergovernancekenya.org> at