A Guide for Non-State Actors in Devolved Governance

Kenya

A Guide for Non-State Actors in Devolved Governance

Why this guide?World Vision is a Christian relief, development and advocacy organization dedicated to the well- being of children. We are committed to working with children, families, and their communities worldwide to overcome poverty and injustice. World Vision began its operations in Kenya in 1974 and currently works in 37 counties; serving alongside the poor and oppressed focusing on those who are most vulnerable, regardless of a person’s religion, race, ethnicity or gender.

Through our work, we interact with children, the youth, adults, persons with disability, the older persons, minority groups and other special interests groups in Kenya. We interact with them both as individuals and organized groups; such as the Community Based Organizations, Faith Based Organizations, Self-help groups and other forms of Civil Society Organizations. We interact with them during community conversations and dialogue, sensitization programmes, induction and trainings, monitoring and evaluation exercises, documentation, learning and reflection events among other opportunities.

During these interactions concerns on the content and meaning of various provisions in Kenya’s Constitution (2010) continues to emerge. Specifically, the functions of the National Government vis-à-vis the functions of the 47 County Governments; the relationship between the National and County governments; the composition and roles of the institutions in each government (national & county); issues around county planning and budgeting process, citizens participation and the role of Non state actors in relation to the functions of the county governments are some of the major and persistent concerns. The transition of functions from the national government and how national resource is to be shared is also an area that requires internalization among the communities, especially at the grass root level.

This document has therefore been developed to address the above concerns. It is an easy to read content synchronized from the Constitution and other aiding legislations. It is our expectation that the document will enable the readers to equip themselves with additional knowledge for the purposes of engagement with the National and County governments. We hope that this document will enhance the citizens’ and Non state actors’ level of preparedness in carrying out their civic and development responsibilities in Kenya.

Recognizing that the Non state actors in Kenya have various objectives for which their organizations are established to fulfill; and acknowledging the fact that many organizations are already conducting Civic Education activities in Kenya (in reference to the Constitution and its implementation process); we have also highlighted some critical roles for which Non state actors should play towards effective functioning of the County Governments. The Non state actors in Kenya have enormous and diverse skills, knowledge and experience especially in terms of development, governance and advocacy; this will go a long way in helping the County governments to begin on the right track in carrying out their functions.

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Devolution and the New Arrangement of Government

Devolution means allowing smaller units autonomy to administer themselves. It recognizes diversity in

the smaller units, say communities, in the extent that needs are different and require different approaches

and solutions sometimes best handled by the people themselves. To that extent, the constitution has

isolated objects that devolution is to achieve. Some of these include;

Giving powers of self governance to the people.

Enhance participation of the people on matters that affect them

Recognize the right of the people to manage their own affairs

Promote social economic development through closer and accessible services to the people

Ensure that national cake is well shared and reaches out to all

Enhance closer scrutiny and monitoring of the government by the people.

For these to be realized, the constitution has established a national government and 47 county

governments. Each government has demarcated functions and its own institutions.

Kenya is a sovereign Republic with its territory divided into 47 counties.

The Constitution of Kenya (2010) is the supreme law of the Republic and binds all persons and all State

organs at both levels of government

All sovereign power belongs to the people and is exercised at the national level and the county level.

The governments at the national and county levels are distinct and inter-dependent and are to conduct

their mutual relations on the basis of consultation and cooperation.

Every county government is to decentralise its functions and the provision of its services to the extent that

it is efficient and practicable to do so.

The national values and principles of governance that bind all State organs, State officers, public officers

and all persons (both at the National and County governments) include patriotism, national unity, sharing

and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity,

social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;

good governance, integrity, transparency and accountability; and sustainable development.

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National Government County Government

National Legislation.

National policy formulation and approval

Health policy.

Agricultural policy.

Veterinary policy.

Energy policy

Tourism policy

National Standards

National Services;

Foreign affairs and international trade

Immigration and citizenship

National Security, defense, Police services and

correctional services.

Courts.

National planning.

Monetary services, currency, banking regulation,

insurance and financial corporations.

National statistics and data on population.

Education services, curricula, examinations,

Universities, tertiary educational institutions,

institutions of research, higher learning, primary

schools, special education and secondary schools.

Promotion of sports and sports education.

County Legislation.

Implementation of national policies and legislations.

(Concurrent)

County policy formulation and approval.

Applies national standards in county services.

(concurent)

County Services;

Agriculture, including

a) crop and animal husbandry;

b) livestock sale yards;

c) county abattoirs;

d) plant and animal disease control

e) Fisheries.

County health services,

a) county health facilities

b) veterinary services

c) Cemeteries, funeral parlors and crematoria.

refuse and waste disposal

Control of pollution (concurrent)

cultural activities, public entertainment and public

amenities

County parks, beaches and recreation facilities.

County transport, including

Functions of Each of the Governments.

The competencies of each government is isolated and provided in a list in schedule 4 of the constitution.

The functions are exclusive to each government while some are concurrent.

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National Government County Government

Transport and communications, including,

a) road traffic;

b) the construction and operation of national trunk

roads;

c) telecommunications; and

d) radio and television broadcasting.

Transport and communications, including,

National public works.

Transport and communications, including,

Protection of the environment and natural

resources. (concurrent)

a) fishing, hunting and gathering;

b) protection of animals and wildlife;

c) water protection

Transport and communications, including,

National referral health facilities.

Disaster management. (concurrent)

Ancient and historical monuments - National

elections.

Public investment.

National betting, casinos and other forms of

gambling.

Tourism development.

Capacity building and technical assistance to the

counties.

a) county roads;

b) street lighting;

c) traffic and parking;

d) public road transport; and

Ferries and harbors (excluding the regulation of

international and National shipping).

Trade development and regulation, including

a) markets;

b) trade licenses (excluding regulation of

professions);

c) fair trading practices;

d) local tourism; and

e) Cooperative societies.

County planning and development,

Pre-primary education, village polytechnics, home

craft centers and childcare facilities.

County public works and services,

Fire fighting services and disaster management.

(concurrent)

Control of drugs and pornography.

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Institutions in each Government.

National Government Devolved (County) Government

Legislature.

National Assembly

(290 elected from

constituencies + 47 women elected

from counties + 12

nominated – youths,

disability and workers +

Speaker) = 350

Senate (47 elected from

counties + 16 women

nominated by parties +

2 youth + 2 disability

reps + speaker) = 68

County Legislature.

County Assembly (An Assembly of Ward reps + 1/3 gender principle + 4

youth+ 4 disability reps + Speaker). The size of County Assembly varies

from one County to the other.

County Assembly is to;

Executive

President

Deputy President

Cabinet

Principle secretaries

National Public Service

Executive

Governor, Deputy governor, Executive committee (Cabinet of not more

than 10), County Public Service

County Executive is to;

Judiciary/Courts of Law Also serves the County

Independent state offices

and CommissionsAlso serves the county

make laws to govern public service provision.

oversee the county executive organs.

receive and approve plans and policies for the County.

approve executive appointments i.e. county cabinet, town committees,

etc

approve County budgets.

approve borrowing by County Governments before the same is

guaranteed by the National Government.

implement county legislation,

implement national legislations and policies within the county,

manage and coordinate the functions of the county administration.

provide listed services to the county population

prepare proposed legislation and policies for consideration by the

county assembly.

provide the county assembly with full and regular reports on matters

relating to the county

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RememberI. The County Governor, Deputy Governor and Ward Representatives are the only elected officers of

the county government.

II. The President, Deputy President, National Assembly Members, Senators and the Women

Representatives are officers of the national government. They do not work in the counties.

III. Other than the elective positions, there are nominations do be done by political parties before the

elections date. National Assembly (4 youths, 4 Disability and 4 workers. Each gender taking two

of each). Senate (16 women, 2 youth and 2 disability. The youth and disability must consider

gender in each category). County Assembly (4 youth and 4 disability)

Conduct of Elections.

Elections are to be carried out for purposes of filling positions in national parliament, national executive chief

executives (President and Deputy President), county assembly and county executive chief executives (Governor

and Deputy Governor). In all, 8 people will be elected in six elections.

a) President and a Deputy President as a running mate.

b) National Assembly member. Elected from each constituency to represent constituents in national parliament

c) Women representative. One per county to represent women interests in the National Assembly.

d) Senator. One per county to represent county governments in national parliament.

e) Governor and Deputy Governor as a running mate. To lead the County government.

f) Ward Representative. One per ward to represent voters from each to the County Assembly.

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County Executive

Senate[68 members]

ELEC

TIVE POSITION

GOVERNMENT

Nat

ional Governm

ent

Coun

ty Government

National Executive

CountyAssembly

National Assembly

[350 members]

Member of National Assembly

WomenRepresentative

WardRepresentative

Electoral Areas, Positions and Government Served

Senator

GovernerDeputy Governer

County Government

National

County

Constituency

Ward

ELEC

TORAL AREA PresidentDeputy President

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The Relationship between National Government and County Government

The governments are distinct but interdependent. They are distinct on the basis of how separate they

are in terms of exclusive functions. The exclusive functions are express roles clearly cut for each

government. It demonstrates substantial autonomy between the two governments.

The interdependence on the other hand recognizes that counties are not independent but are part of

one nation. It is demonstrated by placing roles that counties must rely on from the national government

i.e. national legislations, national policies and national standards in order for them to function well.

Interdependence is further demonstrated by the placement of certain functions that are concurrent i.e.

fall in both governments and those that belong to the national government but must be carried out in

the county geographies.

The interdependence is to be guided by

Consultations. No government is to surprise the other in carrying out its functions.

Cooperation. The governments can work together through a laid down process, and

Agreement. A government can perform the functions of the other government through a written

agreement. The government whose function is done by another government in agreement pays for

the cost of performing the function. Art. 6 (2), 186, 187, 189

Government at either are to;

perform their functions, and exercise their powers by respecting the government at all the other

level.,

assist, support and consult and as appropriate, implement the legislation of the other level of

government

liaise with government at the other level for the purpose of exchanging information, coordinating

policies and administration and enhancing capacity.

co-operate and may set up joint committees and joint authorities.

Transition of Functions between the two levels of government.

The functions of government under the outgoing order have been through central government public

administration (all the line ministry departments as well as provincial administration) and the local

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NationalGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

CountyGovernment

government. The constitution infers that the current central government functions will be inherited by

the national government which will then transfers them in phases to the county governments.

The national government is mandated to facilitate and build capacities of the county governments

before the functions are transferred. In a similar manner, the national government is to change the

old structures i.e. public administration and local government to be in line with the two levels of

government.

The transition is to be managed by a Transition Authority.

The Authority is to do among other things;

The governments are distinct but interdependent

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Facilitate the transfer of functions.

Establish criteria of transfer of functions.

Validate assets and liabilities of state institutions including local authorities before functions are

transferred.

Audit the existing human resource of the government and county governments.

Advise on effective and efficient rationalization and deployment of the public servants.

Assist county governments in making their first budgets after elections

Facilitate capacity building of county governments

Potential Challenges in the Relationship between the two Governments.

The relationship between the two governments is bound to be bumpy and fairly confused in the

beginning. The challenges include;

I. Challenges witnessed in the coalition government.

II. The unique transitional arrangement

a. Continuity of the old constitution into the new one.

b. Old order managing the transition

c. The role of parliament

d. The role and place of CIC

III. Pre election preparation.

a. The current transfer of personnel

b. The place of the Transitional Authority

IV. Immediate post election challenges

a. The process of transferring functions. County governments without work to do.

b. No money for counties when no work is transferred.

c. Potential long period for capacity and facilitation of counties by the national government.

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V. Long term

a. Threats of break away incase of success or failures

b. Dilatation of the power of the center.

National Resource Sharing.

The national resources are derived mainly from direct and indirect taxes, customs duties and excise

taxes. All the taxes and duties constitute 100% of the national revenue collection. The law requires that

in each year, the national collection should be shared out in the following manner.

1. Minimum 15% shared out to 47 counties

2. 0.5% shared out through service provision by the national government to marginal areas under an

equalization fund arrangement for at least 20 years.

3. 0.3% shared out to political parties

4. Maximum 84.2% allocated to the national government.

The share to the counties is to be allocated to each county through a proposal developed by the

Commission on Revenue Allocation Commission and approved by the senate.

Criteria of transfer of funds.

The funds to be transferred to the counties are conditional and are dependent on a number of factors.

Main ones include;

National interests i.e. efforts against threat to the nation

Debt repayment

Fiscal capacity of the county governments

Efficiency of the counties

Ability of the counties to raise their own resources i.e. the more a county raises on its own the

more it receives.

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Guiding Provisions to Poverty Reduction Strategies.

The contributing factors to continued poverty situation in the country have been linked to the governing

regimes overtime. Questions related to who owns the means of production, the administration, access

and general environment of investment, and the role of state in public policy, planning and development,

the whole issue of public debt, public resource mismanagement, misallocation and porous expenditure

arrangements and corruption are constantly isolated as reasons that contribute to endless poverty. The

constitution 2010 provides a number of benchmarks.

Overall intent of the constitution is on the well being of the individual, family, communities and

the nation (Preamble). All the other principles placed before the established institutions are

confirmation to the overall intention of the constitution.

Sovereign power placed on the collectivity of individuals not on the institutions. Institutions only

exercise delegated powers. (art.1)

National values and principles of governance (art.10,2)

Human dignity, equity, social justice, inclusiveness, equality, human rights, non discrimination

and protection of the marginalized

Individual rights, entitlements, benefits and fundamental freedoms.

Purpose of recognizing and protecting human rights is a basis for the for social, economic and

cultural policies

Access to information

Association

Property rights

Labor rights

Protection of the environment

Economic and social rights

Consumer rights

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Access to justice. Art. 22, 23

Role of the state in the application of rights. Art21

Royalties art.11

Leadership and Integrity. Cap 6

The governance arrangement.

Object of devolution art 174

Access to services art. 6(3)

Decentralization of county services art. 176 (2)

Public finance principle and requirements.

Fair sharing of the burden of taxation and borrowing. No exclusion on tax payment. Law on

borrowing and reporting requirements. Art. 210, 211.

Equitable sharing of the national cake

Prudent and responsible use of public money.

Financial controls art. 225, public audit, art226 and procurement art. 227. Moneys only

withdrawn by either governments with approval of controller of budget

Equalization fund

Financial controls

Salaries and remuneration standardization.

Provisions that guide Planning and Budget

The public planning process will radically change with the new arrangement. Each of the governments will

be in charge of their own planning process. County governments are to develop their own development

plans just as the national government will develop its own. A policy guideline will have to be in place

as to where the two planning processes interface.

The constitution is however clear on;

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National and county economic policy, planning and development functions (schedule 4)

Role of parliament in budget preparation and approval.

Revenue raising powers art. 209

County governments’ revenue sources art. 207,209 (3)

Role of County Assembly in the budget preparation and approval

Public spending procedures

County plans are based on the functions of the county governments as specified in the Fourth Schedule

to the Constitution and on relevant national policies. A county planning unit is to be responsible

for coordinating integrated development planning, ensuring integrated planning within the county;

ensuring linkages between county plans and the national planning framework and ensuring meaningful

engagement of citizens in the planning process.

To guide, harmonize and facilitate development within each county, there is to be a county integrated

development plan, county sectoral plans and county spatial plan.

The county integrated development plan is for a period of five years that has goals and objectives, an

implementation plan, provisions for monitoring and evaluation; and clear reporting mechanisms.

The County sectoral plans is for a period of ten years. It is programme based and is the basis for

budgeting and performance management. It is reviewed every five years by the county executive but

updated annually.

The County spatial plan is part of the integrated plan but provides for a spatial depiction of the social

and economic development programme of the county.

To promote public participation, Non state actors shall be incooperated in the planning process.

The budget process for the national government in any financial year comprise the following stages

(a) integrated development planning process.

(b) planning and determining financial and economic policies and priorities.

(c) preparing overall estimates in the form of the Budget Policy Statement.

(d) adoption of Budget Policy Statement by Parliament/ County Assembly.

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(e) preparing budget estimates.

(f) submitting those estimates for approval by respective legislature;

(g) enacting the appropriation Bill.

(h) implementing the approved budget;

(i) evaluating and accounting for, the budgeted revenues and expenditures

(j) reviewing and reporting on the budgeted revenues and expenditures every three month,

Provisions that Guide Citizen Participation in public policy processes

Citizen participation in public affairs is a running principle in the constitution. Citizen participation

and arrangements of redress incase participation is threatened or denied are clearly entrenched in the

constitution.

Principles guaranteeing citizen participation

Supremacy of the people

National values and principles in governance art.10

Devolution objectives

Individual rights

Association

Political rights art.38

Labour rights art.41

Access to justice. Art. 22, 23

The youth rights art. 55

Participation in parliamentary processes

Access and participation art.118

On bills

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Petition art.119

Recall art 104, elections act, 2011

Participation in budget processes

At the county level, every member of a county assembly is expected to maintain close contact with the

electorate and consult them on issues before or under discussion in the county assembly; present views,

opinions and proposals of the electorate to the county assembly and also provide a linkage between

the county assembly and the electorate on public service delivery; among other roles. This implies that

the citizens will have to be ready and willing to engage their elected leaders effectively. Citizens have a

right to petition the county government on any matter under the responsibility of the county government

while the County government authorities, agencies and agents have a duty to respond expeditiously

to the petitions and challenges from citizens. In addition the County governments should facilitate the

establishment of structures for citizen participation.

Non State Actors in the New Dispensation

Non State Actors play a big role in supplementing gaps and challenges of the state in service provision.

They play direct roles in provision of services in education, health, water, energy, besides policy and

legislative input. NSAs further play advocacy and monitoring of public resources much more than the

state itself. These roles are still critical and NSAs must continue occupying some space in the new

arrangement.

The work of NSAs has been clearer due to a linear structural arrangement of government and singular

legal processes involved. Many of the structures NSAs use, in most cases correspond to the vertical

administrative structures of the central government. The actual implementation of projects is at the

districts or divisions while coordination of projects corresponds to the provinces.

Implications

The new arrangement of government abolishes the entire seven vertical layers of public administration,

all the local authorities and in essence all the regional agencies and other little fund transfer governments.

They are to be replaced by a new two tier arrangement of the national government and the county

government. Each county government is mandated to decentralize its administration and service

provision independent of the others. Meaning that below the county level administration will be different

from one county to the other.

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Posible roles of Non State Actors.

Legislative and Policy support

Article 185 (2) of the constitution provides that a county assembly may make any laws that are

necessary for, or incidental to, the effective performance of the functions and exercise of the powers

of the county government. Non State actors may extend their support to County governments in the

process of developing legislations and policy frameworks. This could be through research, peer reviews,

legislative drafting or policy reviews.

County Planning and Budget Process

Non state actors with expertise and experience in development planning and the budget process should

consider providing technical support to the county governments during county planning and budgeting

process. Many Non state agencies have designed and implemented development models that have

been successful in various parts of the World. Such models can be show cased in the counties and if

acceptable to the citizens and the county governments then could be adopted and improved on where

appropriate.

Citizens’ Empowerment (Enhancing citizen’s participation)

Article 196 of the Constitution provides that a county assembly will conduct its business in an open

manner, and hold its sittings and those of its committees, in public; and facilitate public participation

and involvement in the legislative and other business of the assembly and its committees. The Non

state actors have a role to facilitate the dissemination of information and to unpack legislative and policy

information in simpler versions for effective participation in public policy process. The Non state actors

may convene public forums from the village, ward, sub-county and county levels where citizens may

have a chance to dialogue on public issues.

Service delivery

Non state actors with a comparative advantage in implementing development projects should scale up

their efforts based on county needs and priorities. This will complement the functions of the county

government as provided for in the constitution. For instance, while it is clear that the county governments

have the function of providing Pre-primary education, village polytechnics, home craft centres and

childcare facilities; this is an area that has received minimal support from the state over the years. It

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will be desirable that Non state actors help in the construction of such facilities and provide start up

materials and equipment and work with county governments to sustain such initiatives.

Monitoring, Evaluation, Documentation and Learning

To be able to track progress on how the county governments are functioning, Non state actors can support

the county governments in designing M & E frameworks with clear indicators to be tracked and the

roles of all actors in such a process (Government, Non state actors, the private sector, communities and

even citizens as individuals or as organized groups). Quarterly documentation of progress being made

will be useful with the Non state actors using their knowledge, skills and experience in documentation

to support such documentation exercises. In addition, Non state actors can convene quarterly, semi-

annual or annual learning forums where stakeholders would gather to take stock of the gains made in

the county, learn lessons and design strategies for moving forward.

World Vision Kenya, Karen Road - off Ngong Road,

P.O. Box 50861-00200, Nairobi, Kenya, Tel:, +254 20 6926000, +254 20 3883652 -66,

+254 732 126000, +254 721 970273, Email us: wvkenya@wvi.org, WEB: www.kenya.

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