BY NDUNG’U WAINAINA

The Constitution of Kenya 2010 will in August this year turn seven (7) years old. Coincidentally, the country will also be holding its second General Election under the new Constitution in the same month.

The Constitution 2010 did not only significantly restructure the governance system and redesigned how the people relate to it but also drastically established a devolved system of governance, which was a relief from the hybrid mongrel of Presidential and Parliamentary systems.

This Constitutional order offered renewed hope and aspiration to the Kenyan people and to a country ravaged by many years of dictatorship, economic decay, corruption and human rights violations. However, for Kenyans to enjoy a democratic, secure, stable and shared prosperity future; faithful and full implementation of the Constitution and Devolution is mandatory

When Kenyans voted to have a new Constitution in 2010, they expected a devolved system of governance where powers and resources are transferred to autonomous devolved units as ascribed by the Constitution across the country to enable communities to plan their priorities and development. This would make it easier for communities to hold their leaders to account as a result of their close proximity, plan in accordance with their preferences and needs as well as ensuring previously neglected areas in the country receive resources for development and provision of essential services.

The people of Kenya have in the last four years been on worthwhile journey experimenting the devolved system of the government. The results are proving very positive. It is time to start the process of consolidating the four years of dividends.

One major challenge for the devolution process is that the National Government Policy on devolution and the County Government Act were drafted without any comprehensive restructuring of the national government Ministries, Departments and Agencies (MDAs), which remain as intact as they were before devolution.

The national government, while free to infiltrate its policies at the county levels, must do so through the structures recognized under the Constitution and not run parallel or duplicate system. The law is clear that the national government may channel grants, whether conditional or unconditional to the county governments as additional revenue within the meaning of Article 202 and not any other entity which performs the functions allocated to the county by the Constitution. The national government cannot purport to channel grants to an entity whose intended projects effectively undermine the role of the government at the county level.

In the last four years the national government has successfully, through the National Assembly, been pushing legislative and administrative processes that subvert devolved functions. This is evidenced in the Water Act 2016, The National Drought Management Act 2016, the Land Laws (Amendment) Act 2016, the Community Land Act 2016, Roads Reclassification Act among other unconstitutional laws that courts have revoked. The situation is now being escalated through the budgetary process. Further, there are still serious problems on how the two levels of government cooperate and operationalize the execution of shared and or concurrent functions. Costing of the devolved functions has been blocked, adversely affecting devolved services delivery by the county governments.

The Constitution changed the economic, fiscal and taxation policy. The current revenue and taxation policy is fiscally unbalanced as the national government continues to determine fiscal and taxation policy with very limited participation of the county governments. Further Vision 2030 has not been radically reviewed and reformulated. It has not been tinkered to bring it into conformity with constitutional dispensation. All these have had adverse effects on the ability of County governments to play significant role in determining economic, fiscal and taxation policy of the country and also help secure their broad financial autonomy sustainability.

County governments must make sure that every function, either directly or indirectly implied by the Constitution, to be exclusively devolved or shared or concurrent is implemented.  Resources and functions that line ministries, departments and agencies of national government are holding unconstitutionally at national level will have to be surrendered to the county governments.  Duplication of functions that cause unnecessary wastage and conflict should be eliminated through Articles 1, 6, 10, 174, 183, 187 and 189 of the Constitution.

County governments are the new factories and innovations hubs for Kenya. They play pivotal role in propagating local economic development and regulating the private sector in their jurisdictions. In the last four years the country has seen national government adopting and implementing a dangerous debt-propelled economy. Exports, agriculture yields and manufacturing have been declining tremendously. When Kenyans voted for a devolved system of government, they expected power and resources to transform local economic development and ensure efficient and effective service delivery.

County governments are gaining in authority, powers and legitimacy and become more prominent in driving local economic development.  They play pivotal role in local economic development and supporting private sector in their jurisdictions. An important precondition for pro-poor economic growth is that county government understands their potential role in supporting private sector development, and is aware of the opportunities and constraints for the private sector in its jurisdiction.

County governments contribute in various ways to an enabling environment for pro-poor economic growth. First, county governments should foster effective and efficient registration and licenses for business and property activities. Good economic governance means predictable and reliable action by the county government, through the application of accessible, affordable and transparent policies and procedures. This also implies that taxes and levies should be collected and used in a transparent way. Secondly, County governments should focus on economy based on export-led growth, manufacturing and diversification through building transparent and favorable competitiveness environment and property rights regime that support business. Thirdly, strengthen the devolved system of government as driver of transforming the peasantry rural agriculture economy into modern high yield value added export- oriented productivity. This will see strengthening the county-based local private sector, building inter-counties economic cooperation and supporting local small-scale manufacturing.

Finally, ensure regulatory institutions that do not perform well their assigned job of providing oversight, and accountability and transparency are strengthened including separating legislative policy from executing function to avoid conflict of interest to ensure efficiency, probity and prudent spending of the public resources

The National government has not been unable and or unwilling to address the security and policing system in context of devolved system of government informed by unique local security challenges and dynamics. Localized policing and law enforcement is the bedrock of successful policing and crime prevention.

County governments will start to hold political campaign to enforce restructuring, aligning, downsizing and rationalizing of the National Government ministries, departments and agencies  of the following sectors to accord with and respect devolved system of government:

• Infrastructure- Roads, transport etc
• Energy
• Communication, Information and Technology
• Education, technical and vocational training
• Health and Sanitation
• Governance, security and Justice
• Environment, Water and Natural Resources
• Agriculture and land management
• Economy, commerce and finance- trade, taxation, manufacturing, borrowing, regulatory, social protection etc
• Sports, Culture and Recreation
• Urban development, Housing and physical panning
• International Relations and International Commerce/Trade

Key Actionable policy directions for implementation to strengthen devolved system of governance

Ensure the allocations to County governments are increased proportionate to the national revenue share. Big budget allocations to national ministries, departments and agencies must significantly be reduced as majority of them have policy and regulatory mandate while Counties hold responsibility of service delivery. Adopt policy of More County, less National. Also review the fiscal, taxation and economic policy to give county governments’ direct and influence voice in conformity with devolution.

Restructure, align, rationalize and downsize the national Ministries, departments and agencies and regional sector wide authorities to accord with and respect the devolved system of government to remove costly, parallel and duplicating functions and also release a lot of funds being held unconstitutionally by national MDAs.

Strengthen institutions that facilitate intergovernmental relations and ensure national institutions support devolution to build better relations between national and county governments.

Streamline and hasten the process of transferring funds, conditional grants and donor funding to the County governments.

Develop capacity and capabilities of institutions, systems, processes and procedures of the County Governments for purposes of sound policy, law and regulation formulation; integrated planning, budgeting and performance management; effective policy execution; and quality service delivery.

Carryout comprehensive audit of the County assets including land and properties through detailed transparent audit and establish open registry for proper planning and future utility.
Conduct County based human resource assessment to harmonize personnel with needs, skills and reduce bloated unsustainable task-force and wage.

Institute comprehensive land reforms to ensure accessibility of land resources fairly by all citizens, create transparent land and property registry and enforce equitable share of natural resources wealth

Devolve certain policing services to address the security and policing system in context of devolved system of government and be responsible for public safety and security within the County.

Internally, County government has to set up institutions, processes, system and procedures that are competent and delivering. Review the progress made in their capacity and setting institutions and systems.  At the intergovernmental level (Summit) political, policy and legal decision has to be made on how to expeditiously downsize, rationalize, align and restructure national Government Ministries, departments and agencies in order to remove costly duplication and parallel governance/administrative system and also effectively implement fully, partial and shared (concurrent) devolved functions. Finally, County Governments strong voice at the national level is critical in order to speak with a collective voice on national policy that affects Counties, share best practices, and develop innovative solutions that improve county government and support the principles of devolution.

Establish County Government Accountability Office to help improve the performance, accountability and service delivery in the county. This office will be tasked with providing objective, fact-based and timely information in a bid to make the county government more efficient, effective, ethical, equitable and responsive while ensuring value for money and improved county government operations. This office will be independent financially, structurally and operationally. Its work will be to support the Governor meet his/her constitutional responsibilities. It will conduct continuous comprehensive monitoring and audit of the operations and service delivery to determine whether county funds are being spent efficiently and effectively. It will also conduct professional investigations on allegations of illegal and improper activities of the county government, its agencies and employees in addition to generating quarterly reports on how well county government programs and policies are meeting their objectives with clear policy analysis and recommendations to facilitate more effective quality service delivery, viable sustainable communities and balanced county development.

Set up the Public Rapid Assessment and Action Plan to Improve nature, quality and distribution of service delivery mechanism to ensure better spending by the County government. Devolution has allowed Counties to have more control over their own resources, but prudent and effective spending has been elusive. Having money, which County government needs more of, is just part of the solution. However, it should correctly analyze how it spending the money. The starting point is an assessment of conditions in the County. This mechanism allows County government to identify the factors causing poor services, concentrating on systemic, management issues including public financial management. It then outlines an action plan, including the required financing, to deliver improvements, and monitor accountability progress. This will stop misuse of revenues by the County government through corrupt activities and spending on something not effective.

Networking of County governments to share their experiences and knowledge. Creating a platform for local governments to exchange their opinion, challenge, issues and best practices is also useful for local governments. An inter-County cooperation of several County governments creates horizontal cooperation among local governments, gather information and opinions from local governments lobby to national government, advocate members interests in national and international policy dialogue and increase governance and transparency by sharing knowledge, information and good practices. Developing a database of successful/unsuccessful projects will help County governments learn Do’s/Don’ts in developing and implementing projects. By looking at details of actual project structure and financing models, County government officials as well as the private investors can learn how to adjust such successful projects to their local context.

A rigorous well-structured multi-stakeholder dialogue needs to happen on the appropriate system of intergovernmental relations on revenue sharing and taxation policy (This explains why Vision 2030 has to be fundamentally reviewed to conform with devolved system of governance and development). There are still major shortcomings in the current fiscal and taxation policy system and key reforms are urgently needed to bring it into conformity with devolved system of governance. Further budget making is still largely in favour of the national government. Failure to do a comprehensive costing of functions and set need based budgeting process continue to weaken county governments ability to deliver on their mandate.

Currently, mechanisms that would enable county governments to mobilize part of the wealth produced within their jurisdiction to be reinvested in local development are not in place. Local taxation remains underdeveloped, and conditions to capture a portion of the capital gains in land value and economic activities are often not met. The vast majority of taxable goods and services are often concentrated at the national level, and systems of redistribution to local governments through transfers and grants do not guarantee equitable distribution. Therefore, diversifying and expanding local tax bases are clearly needed. And in fact, there are already models here: Some countries do allow local authorities to benefit from national economic growth through the taxation of economic activities, people’s income or local sales. Allowing County governments to access part of the value of public land — particularly that originated by public investments, for instance in roads or new equipment — is another very promising way to finance County investments.

Forging strong partnership between the County Governments and private sector will be prerequisite. County governments play pivotal role of regulatory and to the grow and strengthening of the local private.  County governments have limitations in personnel, funding, knowledge and skills. They often lack full  capacity to develop a project pipeline caused by inter alia, poor project definition, poor appraisal and allocation of risks, poor output specification, poor Value for Money evaluations, limited ability to qualify/evaluate/select private partners, poor monitoring mechanisms and governance.  Both local governments and local business community will need to forge a “new alliance” especially in new county frontiers.

They will both need, in this alliance, to adopt a “new mind set” where both accept a fairer balance in risk and reward in projects and work together over the long term. Second, this new alliance means the business community accepting some adjustment to the traditional model of Public Private Partnership (PPP) they are used to. It will certainly mean a commitment especially the private partner to ‘investing in people’ into the capabilities of their employees — and a huge commitment towards the development of their local partners in County governments. For international companies and private investors more concerted actions at local levels will be needed such as building platforms to showcase projects that really contribute to sustainable development, scaling up impact through developing best practices and project templates or standards, and undertaking effective capacity building around these projects so that they can be implemented.

Finally, proper and timely communication to the local residents and various stakeholders especially partnering with civil society makes all the difference. Effective channels of communication, interaction and participation created by county governments provide critical information and feedbacks. Broadening citizens’ participation in local governance and increasing women and youth participation in public life and politics. Building municipal capacities to be more representative of and responsible to citizens’ concerns and needs through the improvement of financial performance, services delivery, transparency and accountability. Involving community groups in working collaboratively with local government in the process of planning, prioritizing, funding, implementing and overseeing investments in public-private partnerships to address community needs. This will ensure concerns raised are addressed quickly and a correct narrative of the work the County government is doing is well explained to the residents.  It also assists in shaping the county government policy agenda and implementation status.

Writer is executive director, International Center for Policy and Conflict 

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