DEVOLUTION

This session will cover the following:

1) Overview of Devolution; why do we have devolution and what do we expect to

achieve by it.
2) What are the legal framework that have been put in place to ensure that
Devolution works
3) What are the functions of the county and national governments

What is devolution?

Devolution is the process that involves the transfer of functions, resources, power and
responsibilities from the central government to county governments or decentralized
organs in order to promote participatory democracy and sustainable development for
the benefit of all citizens. In Kenya, devolution is granted by the Constitution. The
whole aim was to bring services closer to the people as well as gibe the people the
power to make their own decisions as far as the development and political agenda are
concerned.

Devolution is a form of decentralization: Decentralization is a process of transfer of

sovereign power and resources from a central authority to different levels of
government. It involves dispersing functions and services from the central point to the
periphery:

Devolution is the strongest form of decentralization

There are other various forms of decentralization which include;

Deconcentration
Delegation

De-concentration refers to assigning of responsibilities from national authority to its

own sub national branches in other regions in the country. These branches are to
some extent supervised by the national authority. This is the weakest from of
decentralization and this was what Kenya had before devolution (All political, and fiscal
power remain with the central authority

Delegation refers to the transfer of some of the national authoritys power to semi-
independent sub national /and or non-government authorities. These semi-

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independent authorities have some freedom to decide how to carry out their
responsibilities, but they are ultimately accountable to the national authority (for
instance this is seen with the formation and operationalization of parastatals).

How different is devolution from the other similar initiatives which Kenya used
to have e.g. rural focus for development; CDF?

Devolution is different from the earlier forms of decentralization which saw Kenyans
get initiatives like Rural Focus on District Development; the CDF etc. such initiatives
were only concerned with the transfer of limited resources to the grassroots while in
devolution there is a much wider scope of what is transferred; it does not stop at the
transfer of resources but also includes the transfer of functions, power and
responsibilities to the other level of government i.e. the counties

What are the objectives of devolution in Kenya; why do we have it?

The objects of devolution are contained in article 174 of the constitution of Kenya; they
include the following:

To promote democratic and accountable exercise of power;

To foster national unity by recognizing diversity;
To give powers of self-governance people and enhance participation of the
people in exercise of the powers of the State and in the making decisions
affecting them;
To recognize the right of communities to manage their own affairs and to further
their development;
To protect and promote the interests and rights of minorities and marginalized
communities;
To promote social and economic development and the provision of proximate,
easily accessible services throughout Kenya;
ensure equitable sharing of national and local resources throughout Kenya;
facilitate the decentralization of State organs, their functions and services, from
the capital of Kenya; and
Enhance checks and balances and the separation of powers.

What are the key principles of devolution?

Article 175 of the Constitution requires that county governments established

under the Constitution to reflect the following principles:

i) County governments shall be based on democratic principles and the

separation of powers;
ii) County governments shall have reliable sources of revenue to enable them to
govern and deliver services effectively; and
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iii) Not more than two-thirds of the members of representative bodies in each
county government shall be of the same gender.

What measures exists to ensure a smooth change from the old system of
Government where all things were conducted centrally to new system of
Devolved government?

The constitution provided for an institution which will oversee the smooth transition
from the old system to the new. The institution is called the transition Authority. It is
responsible for Facilitating and coordinating the transition to devolved government
process. The authority was mandated to operate during the transition period which
was envisaged to be between the date of the start of the Devolved government Act,
2012 and three years after the first elections under the 2010 Constitution. The first
phase ran from 9th March 2010 up to 4th March 2013 and the second phase is
supposed to ran from 5th March 2013 up to 4th March 2016. The Authority is currently
having discussions with the relevant Government Authorities to have its term extended
to at least one year in order to finalize its remaining work.

The Authority reports on the progress of transition to devolved government to the

Commission for Implementation of the Constitution and the Commission on Revenue
Allocation on a monthly basis. It also reports to Parliament and the President on
quarterly, semi-annually and annual basis.

What are some of the legislations which have been put in place to ensure that
devolution works /is operational as envisioned by the constitution?

A number of legislations have been enacted to ensure that devolution works properly.
They include the following:
1. Transition to Devolved Government Act 2012
2. The County Government Act 2012
3. The Public Finance Management Act,
4. The Urban Areas and Cities Act
5. Intergovernmental Relations Act

What are the core features of each of these acts?

The Transition to Devolved Government Act, 2012

The overall aim of this act is to provide a legal and constitutional framework for a
coordinated transition to devolved system of government while ensuring continued
delivery of services to citizens; it also aims at ensuring that there are mechanisms
during transition period for audit, verification, transfer of assets and liabilities, transfer
of human resource among other operational issues.

The County Government Act, 2012

The object and purpose of this Act is mainly to give effect to the objects and principles
of devolution as set out in Articles 174 and 175 of Constitution; It also provides the
legal framework on the running and management of the County government and the

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county public service; It also set parameters on the issue of public participation (how
it should be done, how the citizens should be involved etc.) as well as the protection
of minorities in a county

Public Finance Management Act, 2012 (PFMA)

The object of this Act is to ensure that the public finances are managed at both the
national and the county levels of government in accordance with the principles set out
in the Constitution; another aim is to ensure that the public officers who are given
responsibility for managing the finances are accountable to the public for management
of those finances through Parliament and County Assemblies.

Urban Areas and Cities Act, 2011 (UACA)

The objects and purposes of the Act is to establish a legislative framework for the
classification of areas as urban areas or cities; it also concerned with the governance
and management of urban areas and cities; and the participation by the residents in
the governance of urban areas and cities.

Intergovernmental Relations Act, 2012

The objects and purposes of this Act is to provide a framework for consultation and
cooperation between the national and county governments as well as consultation and
cooperation amongst county governments for a harmonious relationship.

How many counties exist under the current developed system?

Under Devolution we have a total for 47 county government and one national
government.

What re the functions of the National Government?

The National government is responsible for a total of 34 functions as outlined in part

one of the Fourth Schedule of the Constitution of Kenya, 2010. It means that these
functions are solely the responsibility of the national government and the county
government cannot undertake them

They include:

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;

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 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.

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 25. Ancient and historical monuments of national importance.
26. National elections.
27. Health policy.
28. Agricultural policy.
29. Veterinary policy.
30. Energy policy including electricity and gas reticulation and energy regulation.
31. Capacity building and technical assistance to the counties.
32. Public investment.
33. National betting, casinos and other forms of gambling.
34. Tourism policy and development.

What are the functions of the county governments?

The functions of the county government are provided for in Part 2 of the Fourth
Schedule of the Constitution; there are a total of 14 core functions as listed below. \

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;

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 (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, home craft 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. Firefighting 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.

Note: These functions are transferred to the County Governments by the

Transition Authority in a phased and asymmetrical manner within three years

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 after the first election under the new the constitution. But the process is still
ongoing

CALL TO ACTION:
1. Make a conscious effort to know all your county government leaders and
the progress they are making as far as developing your county is concerned

2. Learn about your county government development plans and establish

they are being undertake as proposed.

3. Make efforts to participate in county government activities; establish if the

various public participation spaces are publicised and ensure you
participate and contribute your views and ideas in making your county a
better place.

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