Challenges Facing Devolution in Kenya A Comparative Study for HRM

APRIL 2014
CHALLENGES FACING DEVOLUTION IN KENYA: A
COMPARATIVE STUDY

Ondigi Calvin Nyambane

4/1/2014

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© 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.

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LIST OF CASES
1. Isaac Aluoch v. Independent Electoral and Boundaries Commission and 19 others Supreme Court of
Kenya Petition No. 2 of 2013.
2. Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot
Lidubwi Kihusa & 5 others [2012] eKLR.
3. 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.
4. Centre for Rights Education & Awareness (Crew) & others v the Attorney General consolidated with
Patrick Njuguna & another v the Attorney General & another [2011] eKLR.
5. Milka Adhiambo Otieno & Another v The Attorney General & others (Unreported) Kisumu High
Court Petition No. 44 of 2011
6. In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate
Sup. Ct. Appl. No. 2 of 2012
7. 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. 2 of 2013)
8. Isaac Aluoch v. Independent Electoral and Boundaries Commission and 19 others Supreme Court of
Kenya Petition No. 2 of 2013.
9. Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot
Lidubwi Kihusa & 5 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. 2 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. 2 of 2013).
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LIST OF STATUTES
1. Constitution of Kenya of 2010.
2. County Government Act, No. 17 of 2012.
3. Transition to Devolved Government Act, No. 1 of 2012.
4. Inter-governmental Relations Act No. of 2012.
5. Urban Areas and Cities Act No. of 2012.
6.

County Government Financial Management Act. No of 2012.

7. The National Financial Management Bill.
8. Chiefs Act, Cap 128, Laws of Kenya.
9. Elections Act, No. 24 of 2011.
10. International Covenant on Civil and Political Rights UN General Assembly Resolution 2200A (XXI)

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CONTENTS

ABSTRACT........................................................................................................................................................... i
LIST OF CASES .................................................................................................................................................. ii
LIST OF STATUTES ........................................................................................................................................iii
CONTENTS ........................................................................................................................................................ iv
1

INTRODUCTION ...................................................................................................................................... 1

2

LEGAL FRAMEWORK FOR DEVOLUTION IN KENYA ..................................................................... 3

3

2.1

Objects and Principles of Devolved Government ...................................................................... 3

2.2

County Governments ......................................................................................................................4

2.3

Functions and Powers of County Governments ........................................................................ 5

2.4

The Boundaries of Counties .......................................................................................................... 6

2.5

Relationships between Governments .......................................................................................... 6

2.6

Suspension of County Governments ........................................................................................... 6

ATTENDANT PITFALLS OF DEVOLUTION IN KENYA ................................................................... 7
3.1

Devolution and Human Rights...................................................................................................... 7

3.2

Devolution and Separation of Powers ......................................................................................... 9

3.3

Devolution and Optimality............................................................................................................. 9

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

4 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

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4.5
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

6

BIBLIOGRAPHY .................................................................................................................................... 20

A.

BOOKS..................................................................................................................................................... 20

B.

REPORTS ................................................................................................................................................ 20

C.

NEWSPAPER ARTICLES ..................................................................................................................... 20

D.

WEBSITE ARTICLES ............................................................................................................................ 20

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© Ondigi Calvin Nyambane

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1

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

1

Bryan A. Garner, Black’s Law Dictionary 9th Edition 518.
2
Constitution of Kenya Review Commission (hereinafter CKRC) Main Report (2005) 223-242.
3
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.
4
Canada, India, Malaysia, Australia, South Africa, Nigeria, Pakistan and Britain.
5
Nigerian and Ethiopian federations.
6
United States of America, Switzerland and Canada whose Constitutions are federal
7
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.
8
Ibid note 2 at 233
9
Ibid at 234.
10
SID Constitution Working Papers No. 4, ‘Devolution in Kenya’s new Constitution’ 26.

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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 2 at 229.
See, the Local Government Act, Cap 265, Laws of Kenya.
13
Supra note 2 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 2 at 233.
17
Gabriel Lubale, ‘An introduction to the County Governments of Kenya’ (as of 12 September 2012) <> at 7 February 2014.
12

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2

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. 1 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.

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2.2

County Governments

A county government for each county consists of a county assembly and a county executive that
decentralise its functions and the provision of its services.26 The membership of the county assembly is
for five years, unless declared vacant,27 and consists of qualified members28 elected by the registered
voters of the wards, the number of special seat members necessary to ensure the realisation of the twothirds gender rule, the number of members of marginalised groups including persons with disabilities
and youth and the Speaker29 who is an ex official member.30
The legislative authority of a county is vested in, and exercised by its county assembly which may make
laws for is effective functions and powers, exercise the principle of separation of powers over the county
executive committee and receive and approve plans and policies.31Besides, it has power to summon
witnesses32and is require to publish its county legislation in the Gazette for it to take effect.33The
executive authority of the county is vested in and exercised by a county executive committee consisting
of the county governor and his deputy as elected34 who acts in the capacity of chief executives of the
county and members appointed by the county governor with approval of the assembly, from among
persons who are not members of the assembly. Such membership is limited,35 are accountable to the
county governor for the performance of their functions and exercise of their powers, hold office as long

26

Article 176.
The member either dies, absent for eight sitting without permission, removed under Article 80, resigns from party or as a
member, term lapses or terminated on grounds under Article 193(2).; See also article 194.
28
Article 193 provides for the requirements for a ‘qualified’ and ‘non-qualified’ member.
29
Article 178 provides for the election of a speaker by the county assembly from among persons who are not members of
assembly who shall preside over the county assembly or another member of the assembly in case of his absence.
30
The members of special seats and marginalised groups shall be nominated by political parties in proportion to the seats
received in that election in that county by each political party in accordance with Article 90.
31
Such plans include for the management and exploitation of the county’s resources and development and management of
its infrastructure and institutions. See Article 185 of the Constitution of Kenya. See County Government Act for the principles
of County planning and development facilitation, objectives of county planning, obligation to plan by the country, planning
in the country, integrating national and county planning and types and purposes of county plans.
32
Article 195
33
Article 199.
34
See Article 180 on the eligibility rules for election as a Governor or Deputy Governor and the nomination of the Deputy
Governor thereof.
35
Shall not exceed one-third of the county assembly members where they are less than thirty members or, ten, where there
are thirty or more members.
27

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as county governor is in office36and may prepare proposed legislation for consideration by the county
assembly and prepare full and regular reports on matters relating to the county to the county
assembly37even during transition.38
2.3

Functions and Powers of County Governments

Concurrent, original39and transfer powers are permissible.40The functions of the national government
include matters that concern the general nation41 while the county government specifically include
county health services, control of pollution and public nuisances, cultural activities, public entertainment
and amenities, county transport, animal control and welfare, trade development and regulation, county
planning and development, pre-primary education, village polytechnics, home craft centres and
childcare facilities, implementation of specific national government policies on natural resources and
environmental conservation, county public works and services, firefighting services and disaster
management, drugs and pornography control, coordinating participation in governance at the local level
and assisting in to develop the administrative capacity for the effective exercise of the functions and
powers and participation in governance at the local level.

36

Article 182 provides that a vacancy in the office of county governor arises where the holder of the office either; dies, resigns
in writing addressed to the speaker of the county assembly, ceases to be elected county governor under Article 180 (2) [Where
s/he is no longer eligible for election as a member of the county assembly], is convicted of an offence punishable by
imprisonment for least twelve months or is removed from office under this Constitution.
37
Article 183. Other main functions include to: implement county legislation; implement, within the county, national
legislation to the extent that the legislation so requires; manage and coordinate the functions of the county administration
and its departments; and perform any other functions conferred on it by this Constitution or national legislation
38

Article 198.
39
Article 186(2) provides that a function or power that is conferred on more than one level of government is a function or
power within both levels of government while subsection 3 adds that any function or power not assigned by this Constitution
or national legislation to a county is a function or power of the national government. Where concurrent jurisdiction results
to conflict of laws, national law making provisions for such issues prevails over county legislation as provided under Article
191.
40
Transfer of function and powers between the levels of government may be entered through an agreement where such is
not prohibited by legislation and is necessary for the proper performance of such level of government. See Article 187.
41
Also, foreign and international affairs, language, national defence, police services, courts, national economic policy and
planning, monetary policy, incorporation of companies, intellectual property rights, labour standards, consumer protection,
education, sports, tertiary and higher education, transport and 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 Fourth Schedule to the
Constitution.

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2.4

The Boundaries of Counties

Boundaries may be altered but through a resolution entered by both levels of Parliament.42Such
boundaries are required to take into account the population density and demographic trends, physical
and human infrastructure, historical and cultural ties; the cost of administration, the views of the
communities affected, the objects of devolution of government, and geographical features as was upheld

by the Supreme Court in the landmark decision between Isaac Aluoch v. Independent Electoral and
Boundaries Commission and 19 others.43 The taskforce that was commissioned to perform this duty had
previously erred which failed to give due regard to matters relating to the sizes of the boundaries which
left some counties marginalised.44 Importantly, public participation is crucial in determining electoral
boundaries.45
2.5

Relationships between Governments

Cooperation is demanded between both levels of governments to the functional and institutional
integrity of the other with respect of its constitutional status and institutions through assistance, support
and consultation and liaise for the purpose of exchanging information, coordinating policies and
administration and enhancing capacity.46 Disputes should be settled reasonably and alternative dispute
resolution is encouraged.47 The national government may intervene by appropriate and necessary
measures where the county government is unable to perform or does not operate a financial
management system that is not founded on law.
2.6

Suspension of County Governments

A county government may be suspended by the President in an emergency arising out of internal conflict
or war or any other exceptional circumstances. However, this is only effected after an independent
42

Article 188.
Supreme Court of Kenya Petition No. 2 of 2013.
44
East African Centre for Law and Justice, ‘Devolution (Implementation and Challenges) (as of 26 October 2011) <> 7
February 2014.
45

See Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & 5
others [2012] eKLR
46
Article 189.
47
Article 189(3) and (4) is in line with judicial principle under Article 159(2) (c) of the Constitution which provides that such
alternative dispute resolution mechanisms to include negotiation, mediation and arbitration.
43

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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
3

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
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 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

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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)
<> 7 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. 2 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. 2 of 2013) where the Supreme Court held against immediate
realisation an for progressive realisation.

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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

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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 5.

Ibid.
69
See the County Government Act 2012.
68

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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 do 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 do 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)
<> 7 February 2014.
71
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.
72
Supra note 70.

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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 7 February 2014.
‘World bank cautions on devolution challenges’ (as of 24 October 2012) <> at 7 February 2014.
75
Supra note 70.
76
Jason Lakin, ‘It’s here! The challenge of devolution’ (as of 16 March 2013) <> at 7 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

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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 3 September 2013) <> at 7 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 7 February 2014.

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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

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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
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. 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 do 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 5 at p. 6.
87

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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

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Africa was not to under-estimate the task of implementing devolved government and to use all resources
available from the public and private sectors.
5

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 3 September 2013) <> at 7 February
2014.

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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.
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