Devolution in Kenya Setting The Agenda e Version

Consttutonal Devoluton in Kenya:
Setng an agenda
A report of a study commissioned by
The Kenya Civil Society Strengthening Program
October 17th 2011
Consttutonal Devoluton in Kenya: Setng an agenda - 2
The study and producton of this report is made possible by the support of the American people through the United
States Agency for Internatonal Development (USAID). The views expressed herein are responsibility of KCSSP and do not
necessarily refect the views of USAID and the United States Government.
Table of Contents
ACRONYMS/ABBREVIATIONS 3
Acknowledgment 4
Forward 5
GLOSSARY 6
Executve Summary 8
1. Introducton 13
2. Methodology of the Study 16
3. Decentralisaton and Service Delivery in Kenya 19
4. Devoluton: a review of the literature 28
4.1 Concepts surrounding devoluton 28
4.2 Ratonale for devoluton 29
4.3 Optmising devoluton prospects 29
4.4 Devoluton in practce 31
5. Consttutonal Devoluton in Kenya 35
6. Evaluatng Kenyan Devoluton 40
6.1 Overall FGD Perceptons on the Consttutons 40
6.2 Gaps and Overlaps in the Consttuton 41
6.3 Generatng Revenue under Devoluton 48
6.4 The Equitable Sharing of Revenues 52
6.5 Contradictons between the New and Old Systems 55
6.6 Management of Shared and Exclusive Natural Resources 57
6.7 Citzen Partcipaton and Oversight 58
7. Conclusions and the Way Forward 61
BIBLIOGRAPHY 65
APPENDICES 67
ACRONYMS/ABBREVIATIONS
AEZ Agro-Ecologic Zones
AOP Annual Operatonal Plan
BOR Bill of Rights
CA County Assembly
CDF Consttuency Development Fund
CEC County Executve Commitee
CECR Commitee of Experts on the Consttuton Review
CG County Government
COE Commitee of Experts
CRA Commission on Revenue Allocaton
CRF County Revenue Fund
CSO Civil Society Organisaton
DDO District Development Ofcer
DFRD District Focus for Rural Development
ERSWEC Economic Recovery Strategy for Wealth and Employment Creaton
FGD Focus Group Discussion
HDI Human Development Index
IEC Informaton, Educaton and Communicaton
IGFT Inter Government Fiscal Transfer
IMF Internatonal Monetary Fund
KADU Kenya African Democratc Union
KANU Kenya African Natonal Union
KCSSP Kenya Civil Society Strengthening Program
KNCHR Kenya Natonal Commission on Human Rights
KRA Kenya Revenue Authority
LA Local Authority
LASDAP Local Authority Service Delivery Acton Plan
LATF Local Authority Transfer Fund
MTEF Medium Term Expenditure Framework
NARC Natonal Alliance Rainbow Coaliton
NGO Non-Government Organisaton
ODM Orange Democratc Movement
PA Provincial Administraton
PER Public Expenditure Review
PNU Party of Natonal Unity
RMLF Road Maintenance Levy Fund
ROK Republic of Kenya
SAP Structural Adjustment Programmes
SNG Sub Natonal Government
SRDP Special Rural Development Project
SSA Sub-Saharan Africa
TFDG Task Force on Devolved Government
Acknowledgment
The Kenyan Civil Society Strengthening Program (KCSSP) would like acknowledge and appreciate the eforts of all individuals,
organizatons and insttutons of government who contributed in various ways to the development of this publicaton. We wish
to sincerely thank Dr. Othieno Nyanjom for undertaking this assignment and producing a comprehensive and well-researched
document that has given more insight to the concept of decentralizaton. In additon, we most sincerely thank all KCSSP sub-grant-
ees for their input through critque and recommendatons that went a long way in the improvement of the publicaton. Finally, we
wish to thank the United States Agency for Internatonal Development for their generous fnancial support, which made the com-
missioning of the study and its publicaton possible.
Forward
The Kenyan Civil Society Strengthening Program (KCSSP) is a six year grant making and capacity-building program funded by the
United States Agency for Internatonal Development (USAID) and jointly implemented by Pact Inc. and Act! (formerly Pact Kenya).
KCSSP targets Civil Society Organizatons (CSOs) and other non -state actors with the aim of building large consttuencies for critcal
reforms needed in democratc governance, peace building and natural resource management. The need for KCSSP arose from the
realizaton that although civil society groups had in the recent past been instrumental in furthering policy reform in Kenya, their ef-
fectveness afer the 2002 General Electons had been somewhat dampened by a number of factors. The challenges that faced CSOs
ranged from the lack of a clear agenda, credibility gaps, to the lack of long-term viability.
In the recent years, KCSSP has supported Kenyan CSOs to, amongst others, advocate for beter fscal decentralizaton through moni-
toring the use of devolved funds and demand for reforms. A number of KCSSP sub-grantees have been at the forefront in advocatng
for a decentralized system of governance. The Consttuton of Kenya 2010 (CoK 2010) now provides for both fscal and politcal de-
centralizaton. The focus now for KCSSP sub-grantees, other CSOs and non-state actors is to advocate for the proper implementaton
of the Consttutonal provisions on decentralizaton for the beneft of all citzens in the country.
However, as much as the Consttuton provides for a new system of governance, it remains unclear what the design of the new
system will be and how it will functon. The government appointed a Taskforce of Devolved Government, whose mandate was to
propose implementaton mechanisms for the devolved system of government as envisaged in the CoK 2010. Considering the impor-
tant role of CSOs and non-state actors in transitoning to the new system of governance, KCSSP commissioned a study on decen-
tralizaton in Kenya. The study aims at providing new informaton and insights on decentralizaton for Kenyan CSOs advocatng for a
suitable model for decentralizaton for the country.
It is our hope that this publicaton will equip CSOs and other non-state actors with more knowledge on the concept of decentral-
izaton. We hope that CSOs will be beter placed to advocate for the proper implementaton of the consttutonal provisions on
decentralizaton, advocate for the proper utlizaton of resources and mobilize citzens to partcipate in the decentralized governance
structures and processes.
Executve Summary
Kenya has recently promulgated a new consttuton amidst
much fanfare between those who supported the Proposed
Consttuton at the 2010 referendum, and those who opposed
it. The process, which took nearly two decades to fnalise, has
produced a consttuton that some analysts have adjudged
among the best on the contnent. Under the previous con-
sttuton, Kenya was bedevilled by impunity, arising from the
over-concentraton of power around the person of the Presi-
dent, enabling (him) and his cronies to ride rough shod over
the rest of the Kenyan populaton. Indeed, the consttutonal
separaton of powers between the Executve, Legislature
and Judiciary only existed on paper, as an imperial Presi-
dent was able to rule extensively by decree.
Kenya has a widely varied agro-ecological heritage, which de-
termined the regional distributon of colonially expropriated
land, and consequent investments focused on making the
White Highlands amenable to exclusive European setlement.
Signifcantly, the independence government early adopted
the development strategy prescribed by Sessional Paper
No. 10, whose policies deepened the inequalites inherited
from the divisive colonial era policies. While the government
atempted to fght poverty, disease and ignorance, weak
management policies (and global infuences) undermined
achievements. Consequently, there was a decline in general
human welfare, as well as the emergence of a Kenya state
that did not have a unifed natonal identty.
While poverty levels rose into the fnal years of the last Mil-
lennium, the politcal system increasingly muted the voices
of the people and their elected representatves with respect
to debatng human welfare improvement. The country
became a one-party state in 1982. With the local govern-
ment system more or less moribund outside the large urban
areas, the government tried to appease people through
various decentralised governance strategies, including the
Special Rural Development Programme, District Focus for
Rural Development, Local Authority Trust Fund, and the Road
Maintenance Levy Fund. The country espoused structural
adjustment programmes [SAP] to enhance service delivery.
Yet, the impacts on widespread welfare remained modest,
with 57 per cent of Kenyans living below the poverty line by
2000. Kenyan oppositon politcians and civil society persisted
in making demands for consttutonal changes, which would
allow greater partcipaton in identfying and implementng
development priorites.
In the context of the global liberalizing reforms that incorpo-
rated SAPs, the government relented to piecemeal consttu-
tonal changes startng with the 1991 return to mult-party
democracy and the introducton of presidental term limits.
Further changes came through the 1997 Inter-Partes Par-
liamentary Group accord. However, the major breakthrough
came with the 2000 launch of the comprehensive review of
the Consttuton, resultng in the Bomas Draf Consttuton of
2002, the same year voters fnally ended 40 years of KANU
presidencies. The 2003 accession to power of the ethnically
and regionally broad-based NARC government carried great
hopes for far-reforms. NARC launched governance reforms,
introduced free primary educaton, launched the grassroots-
focused CDF and CACC, amongst many other impressive
measures consttutng its Economic Recovery Strategy for
Wealth and Employment Creaton (ERSWEC) 2003-07 which
managed to achieve economic growth of 7 per cent by its
close. However, the emergence of a dominant ant-reformist
platorm within NARC would soon overshadow these impres-
sive atainments. Instead of resolving old cases of impunity,
NARCs ant-reformists opened up new fronts, such as the
Anglo-Leasing, Telkom and Grand Regency scandals.
Consequently, a 2005 referendum rejected NARCs Proposed
Consttuton, setng the stage for even greater impunity that
would lead to the mismanaged 2007 general electons and
the accompanying violence. The February 2008 signing of the
Natonal Accord between PNU and ODM contained the vio-
lence. The Accord also established a slate of tme-bound im-
peratve reforms, dubbed Agenda Four, which chaperoned the
fnalizaton of Kenyas two-decade long consttutonal review
process. Kenyas Consttuton (2010) restores the separaton
of powers by strengthening the positon of the Legislature and
Judiciary vis--vis the Executve which it restructures in many
substantve ways. Most signifcantly, the consttuton, among
others changes, diminishes presidental prerogatve over key
public appointments and the size of cabinet. In espousing
devoluton, the Consttuton created a two-ter government
whose parts are distnct and interdependent.
The Consttuton shared service delivery between the natonal
level and 47 county governments headed by a Governor
working alongside a County Assembly. The Commission on
Revenue Allocaton would determine the equitable sharing of
natonal revenues between the natonal and county govern-
ments, and across the later with a base level of at least 15
per cent. Besides an Equalisaton Fund targetng marginalized
areas, the Consttuton provides that countes may receive
other grants from government, and borrow with, with the
approval/consent of the natonal government. The release of
funds to countes will be against an all-inclusive Integrated
County Development Plan, leaving no room for the decentra-
lised funds, such as CDF.
Afer the promulgaton, the government appointed the Task
Force on Devoluton in Kenya to solicit views of experts and
wananchi on how to operatonalise devoluton. The Task
Forces work resulted in six bills, including County Govern-
ment Financial Management Bill, Devolved Government Bill,
Inter-Government Fiscal Relatons Bill, Inter-government Rela-
tons Bill, Transiton to Devolved Government Bill, and Urban
Areas and Cites Bill. While the last bill has been enacted into
law, the other fve await parliamentary debate.
Meanwhile, the Kenya Civil Society Strengthening Program
[KCSSP] commissioned the current report to facilitate its work
of engaging non-state actors with the greatest potental to
build large consttuencies of critcal reforms (necessary for)
democratc governance and natural resource management.
Using a literature review, key informant interviews and focus
group discussions FGD], the commissions inital objectve was
to to evaluate the wholesomeness of the Consttutons provi-
sions for devoluton, paying atenton areas of potental con-
fict between the old and new dispensaton. Notable among
such areas were: revenue generaton; revenue sharing; the
status of local authorites, Provincial Administraton and
decentralised funds; and shared natural resources. KCSSP was
also keen on exploring avenues for efectve citzen partcipa-
ton. Once the Task Force bills had been published, however,
these became topical and have been discussed in the current
report.
The seven FGDs conducted for the current report established
that even though the average Kenyan was not conversant
with the contents of the old consttuton, there had been
a need to review it to close the gaps in it that facilitated/
enabled impunity to thrive. The FGDs also appreciated the
inclusive process of the review, and the fnal product. How-
ever, the FGDs also revealed extensive misconceptons and
misinformaton surrounding Consttuton (2010), meaning the
civic educaton work undertaken into the 2010 referendum
did not make a lastng impact. Many of the issues identfed
by the FGDs as gaps in the Consttuton were actually already
there. This study established widely varied capacites for own
revenue, and many of the ideas for increasing county revenue
generaton required inital investments of capital, refect-
ing areas overlooked during 50 years of independence. On
revenue sharing, the FGDs revealed the need for extensive
educaton on Kenyas development history that has led to
current inequalites which undermine natonal cohesion. The
concept of equity in sharing natonal revenues and ownership
of natural resources were areas needing special atenton. The
FGDs refected the need for broad-based capacity-building
and civic educaton to enable wananchi to take advantage of
the space created by the Consttuton and the devoluton bills.
The devoluton model ofered by the Task Forces bills would
be expensive; but it ofers an opportunity to reverse some
of the misadventures that have generated the inequalites
and suspicions that have undermined the development of a
cohesive and integrated natons-state.
In terms of the way forward for civil society, there are two
directons of engagement: upwards with the legislatve pro-
cess; and downwards with wananchi. It is likely that Parlia-
ment will hasten the passage of the devoluton bills, meaning
any inputs into that process should be fast-tracked. Thus, it
might be necessary to assume the bills refect the outputs of
TFDKs deliberatons with wananchi, diminishing the need for
further consultatons with them. With respect to the upwards
engagement, the fag has been raised by the dispute between
Treasury and TFDK on the revenue split between the natonal
and county levels, and Treasurys covert atempt to retain
control of budget funds. This suggests the need for civil soci-
ety to sponsor urgent deliberatons to ensure that the agents
of yesterdays impunity do not claw back the opportunites
provided by the Consttuton and devoluton bills. Conse-
quently, civil society should:
Hasten to conduct workshops on the devoluton bills to
fne-tune their contents.
Identfy individual parliamentarians who can form a cau-
cus to ensure that popular rather than elitst percep-
tons on devoluton carry into law.
Prepare to take advantage of Artcles 118 and 119 of
the Consttuton, to put the peoples positon directly
before Parliament on issues of devoluton, where this is
necessary.
With respect to downwards engagement, civil society can
contribute in two important areas: these are civic educaton;
and citzen partcipaton. On civic educaton, it is important
that a much more focused round of civic educaton inter-
ventons is undertaken on the Consttuton in general, and
devoluton and public fnancial management in partcular. This
will enhance the capacity of wananchi to exploit the partci-
patory governance opportunites ofered by Artcles 10, 118,
174, 184, 196 and 201, and Parts VIII and X of the Devolved
Government Bill. To this end, non-state actors, such as KCSSP
could sponsor:
The producton of people-friendly versions of segments
of the Consttuton and selected pieces of related legisla-
tons. The unpackaging of the Consttuton into stand-
alone people-friendly chapters is likely to overcome
the intmidaton felt by many people by the prospect
of reading a huge document. Such publicatons should
incorporate some basic analysis of the signifcance of the
provisions of the legislatons.
The training-of-trainers on the Consttuton, devoluton
legislaton and related governance issues. Such trainees
subsequently become the reference points within their
communites.
Sponsor the producton of Informaton, Educaton and
Communicaton (IEC) material on the Consttuton, devo-
luton and related governance issues, delivered through
drama, song and dance.
Sponsor school-based compettons enhancing aware-
ness of the Consttuton and governance issues, such
as through compettons involving essay writng, poster
paintng, debates and quizzes.
1

Sponsor inter-community quizzes on Consttuton and
governance issues with Wanjiku as the partcipant.
Atainments should be rewarded by investments in
community amenites, such as improvements to the
Community Informaton and Documentaton Centres.
The inital focus of these outreaches could include the
following:
Politcal and socio-economic history of Kenya especially
important because of perceptons that some Kenyans
are poor because they are lazy, while the rich are
hardworking!
Leadership and Natonal Values
Public Service
Equity
Separaton of Powers: Executve, Legislature and
Judiciary
Devoluton the six bills
Taxaton and Revenue Sharing
Security Structures
Natural Resource Management
Internatonal Laws
Besides on-going educaton and capacity building, non-state
actors need to promote the capacity for citzen partcipaton.
This is especially important as the country approaches the eve
of the frst electons under the new consttuton, which will
usher in devoluton. Thus, among the areas of focus for the
development of partcipaton capacity will include:
Registraton of voters
Interacton with politcal partes
Finalisaton of electoral boundaries (consttuencies and
wards)
Electons votng and monitoring
Nominatons Parliament and CA
Development planning
Budgetng and implementaton
Auditng development interventons: whistle-blowing;
and citzens report cards, among others; and
Legislaton Parliament and CA
Introducton
Afer two decades of debates, Kenya eventually promulgated
a New Consttuton on the 27th August 2010. Amongst its
most far-reaching provisions was the devoluton of gov-
ernance to 47 countes. The promulgaton was signifcant
because previously the Natonal Alliance Rainbow Coaliton
[NARC] party government had failed to deliver its promise of
a New Consttuton in 100 days of its accession to power in
2003. Given that NARC had a very broad regional and ethnic
support base, the rejecton at the 2005 referendum of its
reworked people-driven Bomas Draf Consttuton (2002) was
very signifcant. The New Consttuton Consttuton of Kenya
2010 owes much for its fnalizaton to the Natonal Accord
designed to reconcile Kenyans afer the post-2007 electon
violence. While signifcantly underscoring the separaton of
powers between the Executve, Legislature and Judiciary, the
Consttuton also devolves governance to 47 countes. The
focus of this report is on how to exploit the opportunites of-
fered by devoluton.
Signed in February 2008, the Natonal Accord incorporated an
Agenda Four which listed several tme-bound reforms to en-
sure that new legal and insttutonal frameworks would be in
place to secure plausible democratc electons in 2012. Ahead
of the 2010 referendum on the Proposed Consttuton, the
overtly contentous issues included provisions for aborton,
the inclusion of the Kadhi Courts, and the design of natonal
land management. However, the underlying issues also
included the transfer of the hitherto over-centralized powers
of the presidency to other insttutons (notably Parliament),
and the difusion of central government through devoluton
to countes. Consequent to the referendum victory and the
Consttutons promulgaton, the government appointed the
Task Force on Devoluton in Kenya [TFDK] to review interna-
tonal best practces and to gather public and professional
perceptons on how to actualize devoluton. While TFDK has
completed and validated its draf report across the country,
some issues remain unresolved, especially those linked to
the espousal of equity, the underlying principle of devolu-
ton. Given nature-based and governance induced inequali-
tes across the country, countes will be at diferent levels of
preparedness to become operatonal and hence bringing into
efect/operaton the Consttuton of Kenya 2010 provisions
on devoluton
2
. Consequently, it is imperatve that non-state
actors, including civil society organisatons [CSO], be among
those agencies that assume an intermediary role in improving
the peoples understanding of opportunites and risks of con-
sttutonal devoluton. This is the context in which research
was undertaken leading to the present report.
From independence, founding President Kenyata (1964-
1978) repeatedly revised the consttuton to increasingly
centre power on himself while closing opportunites for
citzen partcipaton in democratc governance. Moi (1978-
2002) pursued the same strategy, most notably transforming
the country into a de jure single party state. Halfway through
his 24-year tenure in 1990, however, oppositon politcians
backed by increasingly assertve CSOs (and internatonal liber-
alizing trends), began to make inroads against Mois dictator-
ship, startng with the 1991 return of consttutonal mult-
party politcs. However, 1964 had seen Kenyata do away with
consttutonal devoluton dubbed majimbo
3
, which the 1961
Lancaster House consttutonal talks had included to protect
the small tribes united under the Kenya African Democratc
Union [KADU] party against dominaton by the big tribes
united in Kenyatas Kenya African Natonal Union [KANU].
Consequently, into independence, the central government
dominated service delivery as the weak resource base of local
authorites transformed them into mere spectators.
In terms of improving service delivery, among the most
notable reforms was the 1984 launch of the District Focus for
Rural Development [DFRD], a noble initatve to take plan-
ning to the grassroots (RoK, 1995). However, its potental was
hampered by the persistng centralizaton of budget resources
in government ministries. The countrys development failures
were evident in the record 57 per cent rate of poverty by the
turn of the Millennium. Various ad hoc decentralizing reforms
culminatng in the 2003 Consttuency Development Fund
[CDF] have impacted inconsistently on development, under-
scoring the persistng demands for consttutonal devoluton
that have been realized in Consttuton (2010).
The principle of equity is an underlying theme throughout the
Consttuton. In summary, the principle requires that equals
are treated equally, and unequals appropriately unequally.
This principle is critcal for redressing the efects of the
countrys regionally varied natural resource endowments and
the historical injustces of governance that have undermined
Kenyas transformaton into a cohesive naton-state. Kenyas
independence development blue-print, Sessional Paper No.
10 of 1965, repeatedly invoked equity, but efectvely set the
country of on an inequitable development path (RoK, 1965).
It directng scarce investment resources to those regions with
the greatest absorptve capacity, consigning the rest of the
country to a secondary status of dependence on a trickle-
down from the more developed regions.
4
This background
partally explains North Eastern provinces modest 2009
Human Development Index [HDI] of 0.417 compared to Nai-
robis 0.653, or to a natonal average of 0.561.
5
In recognizing
the role of equity in addressing such undesirable welfare dif-
ferences, the Consttutonamongst other things, provides for
an Equalisaton Fund (Artcle 204) designed only to provide
basic services to bring (their) quality (in deprived) areas to
the level generally enjoyed by the rest of the naton
Consttuton of Kenya 2010 establishes a Commission on
Revenue Allocaton [CRA] (Artcle 215) whose principal
functon is to recommend the basis of sharing of natonal
revenues between the natonal and county governments
(and) among the county governments (Artcle 216). Artcle
203 (2) provides that the money set aside for the countes
deposited in the County Revenue Fund [CRF] be at least 15
percent of all government revenue, with one of CRAs roles
being to determine what the actual proporton should be.
Another important role for CRA is to divide the CRF resources
equitably, that is according to relatve need, among the 47
countes. Equity requires afrmatve acton; that resources be
shared in a way that enables less developed countes to re-
duce the welfare gap between them and the more developed
ones, but without denying resources to the later with which
to progress further.
This report was commissioned by the Kenyan Civil Society
Strengthening Program [KCSSP] which targets non-state actors
in the realm of democratc governance, peace building and
natural resource management. KCSSP targets the non-state
actors that have the greatest potental to build large consttu-
encies for critcal reforms needed in the democratc gover-
nance and natural resources management. The report ident-
fes opportunites that can enable non-state actors to interact
with Kenyan citzens to improve their capacity to exploit the
opportunites ofered by the Consttuton to simultaneously
raise the lot of the disadvantaged and improve on the status
of the beter of areas of the country. The fnancial costs of
devoluton will be great, given the structures provided for by
the TFDK bills. But, Kenya has a great potental to meet the
challenge through improved efciency of governance, such
as through improved tax revenue collecton and curbs on cor-
rupton. In any case, centralized government failed to improve
welfare in North Eastern province in 50 years; so if devolved
government can succeed, then the higher expenditure will
have been worthwhile.
Afer highlightng the methodology of the study in Secton
2, Secton 3 reviews the history of decentralized governance
in Kenya and the development atainments of four decades
of independence. Secton 4 reviews the status of devoluton
on the African contnent. Consttuton 2010s provisions for
devoluton are presented in Secton 5 and evaluated in the
following secton. Secton 7 summarises the fndings of the
study and outlines the way forward.

Methodology of the Study
This secton explains the methodology that was used to investgate perceptons on devoluton and the management
of natural resources. Since the research involved some feld data collecton, the secton explains the ratonale behind the
sample of countes selected.
KCSSP was established to strategically target non-state actors
with the greatest potental to build large consttuencies for
critcal reforms needed in the democratc governance and
natural resource management. Consequent to the establish-
ment of both TFDK and a Ministerial Steering Commitee
on devoluton, programmes such as KCSSP are interested in
contributng to the design of an efectve system that can
deliver the goals of consttutonal devoluton vis a vis the
development needs of Kenyans. Critcal for this endeavour is
the informed partcipaton of communites, as provided by
the Devolved Government Bill. The research behind the
current report thus focused on the six questons listed in
Table 2.1.These research questons and objectves, and the
overall terms of reference of the study were interpreted in an
Incepton Report submited at the onset of the assignment.
Table 2.1: The Research Questons and Study Objectves
Research Questons Objectves
1. What aspects of the structure of devolved governments need to
be clarifed further?
To determine the aspects of the devolved system of government that
requires elaboraton and should be the subject of policy and legislaton
2. How will revenue be generated for the devolved system of govern-
ment and the natonal government?
To analyse and propose alternatves for revenue collecton for the
devolved governments and the natonal government
3. How will revenue be shared between the devolved system of
government and the natonal government
To analyse and propose optons for revenue sharing between the
devolved governments and the natonal government
4. How should the design of the new system resolve apparent
contradictons with some of the aspects of the old system (e.g. the
provincial administraton and the decentralized funds, notably the
Consttuency Development Fund)
To identfy and propose mechanisms for resolving apparent contradic-
tons between the old system of government and the new system
5. How will shared and exclusive natural resources be managed by
the diferent levels of government?
To identfy natural resource management concerns for the new system
of government and propose suitable management
approaches.
6. What is the most efectve way of providing for citzen
partcipaton and oversight to mitgate current public fnancial
management challenges (e.g. corrupton)?
To propose mechanisms and structures for efectve citzen oversight
and partcipaton in the management of the devolved governments
Source: KCSSP TOR
At the April 2011 commissioning of the current report, KCSSP
was aware that TFDK had already completed a month-long
feld data collecton exercise covering multple sites across all
47 countes. TFDKs output would necessarily refect a middle
ground among the potentally diverse views refectng cur-
rent diferences in the development status of countes, and
individuals and groups within and across them. Consequently,
KCSSP decided to contnue with its assignment to see if it
could tease out nuanced perceptons on the issues surround-
ing devoluton, given KCSSPs specifc objectve of empower-
ing non-state actors in the realms of democratc governance
and natural resource management. Some understanding of
divergence of views across countes, or among individuals or
groups within countes, would enrich the design and execu-
ton KCSSPs capacity building initatves.
Consequently, KCSSP decided to undertake a review of the lit-
erature on devoluton whose output would provide a platorm
for evaluatng the devoluton provisions of the Consttuton.
The review also included Kenyan documents on decentraliza-
ton and devoluton, including draf devoluton report (TFDG,
2011), and the records of the deliberatons of the Commitee
of Experts on the Consttuton. The second methodological
approach to addressing Table 2.1s research questons would
be to undertake key informant interviews with government
and non-government stakeholders. The third data collecton
approach of the study was to undertake Focus Group Discus-
sions [FGD] in a sample of representatve countes across the
country. Besides ensuring that a county was included from
each province (except Nairobi), the issues contributng to
the choice of the seven countes setled on included the
following:
Wealth/poverty diferentals Muranga vs. Garissa;
Nearness to internatonal borders Garissa, Migori;
Natural resource endowment Muranga, Embu;
Mult-ethnicity/cosmopolitanism Laikipia, Migori;
Religion Kilif, Garissa (for Islam);
Pastoralism/aridity Garissa, Kilif; and
Populaton density Bungoma;
District Development Ofcers [DDO] organized their respec-
tve countes FGDs of 10 individuals each. An efort was made
to ensure the groups had a representatve sample of county
stakeholders, including a local councillor, women and youth
leaders, religious leaders and other stakeholder categories
(see Appendix Table 2.1). The FGDs were conducted at venues
selected by the DDO, ofen in their District Informaton and
Documentaton Centre meetng room. The FGD agenda fol-
lowed the research questons and objectves listed in Table
2.1. An assistant recorded the deliberatons during each FGD.
At the commencement of the FGD, an assessment was made
of the level of understanding of team members of the Const-
tuton in general, and of the chapters pertnent to devoluton,
that is chapters 11 on Devoluton and 12 on Public Finance, as
well as the related First, Fourth, Fifh and (relevant sectons of
the) Sixth Schedules. Where it was necessary, these elements
of the Consttuton were reviewed in some detail.
The six TFDG bills designed to operatonalise devoluton have
been reviewed and an extensive devoluton organogram
generated (see Figure 5.1). The organogram should improve
understanding of the somewhat complex network of insttu-
tons that is proposed by the TFDG to make up the devolved
government system in Kenya.
3. Decentralisaton and Service Delivery in Kenya
This secton reviews the history of governance in Kenya to the 2010 promulgaton of the new consttuton. It summarises how
colonial policies built on varied natural resource endowments to create regional inequalites favouring the White Highlands. It also
outlines how successive, extremely centralised independence-era Kenyan governments have failed to address welfare inequalites
despite many reforms including decentralizing ones in the name of such an objectve. It closes with a snap-shot of the extents of
inequalites across the country.
Governance under colonialism
Administraton in colonial Kenya was centered on the Gov-
ernor who presided over a racially discriminatve system,
where the Europeans sat above the Asians who in turn sat
above the Africans. Traditonal African chiefs were replaced
by colonial ones who ruthlessly oversaw the implementaton
of the colonial agenda most notably, the collecton of the
taxes that fnanced the colony. Discriminaton in urban areas
6

built on the original colonial expropriaton of regions with
the greatest agriculture potental for exclusive white setle-
ment. This creaton of the White Highlands restricted Africans
to the natve reserves considered geo-climatcally hostle
for European setlement. Table 3.1 presents the countrys
varied agro-ecological zones [AEZ], whose characteristcs
were instrumental in the choice of AEZs II and III for exclusive
European setlement.
7

Table 3.1: Kenyas Agro-Ecological Zones
Zone Alttude Rainfall Area
(sq km)
Share of
Kenya (%)
I. Agro-Alpine (Mts Kenya and Elgon) Above 2,700m 800 0.1
II. High Potental (Meru, Embu, Kirinyaga and Nyeri; Kericho and Nyahururu, Kitale
and Webuye).
1,9802,700m 1,000mm 53,000 9.3
III. Medium Potental (Nyanza, Western and Central provinces, much of Central Rif-
Valley [Nandi, Nakuru, Bomet, Eldoret, Kitale] and a strip of the Coast Province)
9001,800m 9501,500mm 53,000 9.3
IV. Semi-Arid (Naivasha, Laikipia and Machakos districts; much of central and south-
ern Coast Province).
9001,800m 5001,000mm 48,200 8.5
V. Arid (Baringo, Turkana, lower Makueni and most of North Eastern Province 300 600mm 300,000 52.9
VI. Very arid - Marsabit, Turkana, Mandera and Wajir Districts. 200 400mm 112,000 19.8
VII. Deserts Chalbi
VIII. Rest (waters etc) 15,600 2.6
Source: Infonetbiodivision at htp://www.infonet-biovision.org/default/ct/690/agrozones
The original primary Britsh interest in the region was the
control of the source of the River Nile at Lake Victoria, which
would be facilitated by the investment in the Kenya-Uganda
railway. The railway provided transport for European setler
agriculture, which in turn fnanced the colonial government,
through tax revenues largely generated from forced African
labour.
8
These enterprises consttuted a highly centralized
service delivery system which focused resources on the
minority white populaton at the expense of the majority
Africans.
9
The urban and rural distributon of the whites was
signifcant in determining the distributon of socio-economic
infrastructure investment, which only benefted Africans who
happened to be in, or near the White Highlands. Thus, Afri-
cans outside the White Highlands were largely excluded from
access to socio-economic infrastructure, except in instances
where missionaries ofered such services.
The desire by the setlers to remain in the country beyond the
1950s signifcantly defned the issues shaping Kenyan politcs
as the country approached independence. Fearing that
Africans would avenge colonial injustces, the setlers caused
a split among the African natonalists heading to the 1959-
61 Lancaster House independence talks. They instgated the
launch of the KADU party as an umbrella for the small tribes
who allegedly feared they would be mistreated by the big
tribes in the KANU party.
10
Thus, one of the products of the
Lancaster talks was a provision for consttutonal devoluton
into majimbos presided over by senators who sat in the Sen-
ate, the other house in the bi-cameral Parliament being the
Natonal Assembly. A year afer independence in 1963, Ke-
nyata transformed Kenya into a consttutonal republic with
himself as the president. Another year later, he convinced
KADU to dissolve itself, paving the way for a centralised state.
Into independence: The Kenyata years
Around this tme, the government published its develop-
ment blueprint, Sessional Paper No. 10 of 1965 hereafer
SP 10/1965, which dwelt at length on equity as a means of
eradicatng poverty, disease and ignorance. However, the
paper also provided that scarce government investment
resources would be focused on areas with the greatest
absorptve capacity. The expectaton was that the rest of
the country would wait for the trickle-down of the surpluses
from such inital investments. Signifcantly, it was the higher
potental AEZs that had been favoured by colonial infrastruc-
ture investments that had acquired such absorptve capacity.
They would be the frst to beneft from inital independence
era investments, deepening inequalites between them and
the rest of the country. Evidence of the unequal public spend-
ing outcomes of SP 10/1965s strategy is well documented in
Bigsten (1980). Besides such biased budget spending, various
other actvites also worked to enhance disparites in service
delivery and asset accumulaton. While these measures
largely favoured the Kikuyu, it is true that some Kikuyus
remained marginalized while some non-Kikuyus benefted.
Immediately afer independence, the Kenya government
adopted a policy to indigenize the public service and the
economy.
11
This was especially important afer the 1964
military mutnies in all the three East African countries over
racially determined remuneraton structures. Thus, for
example, colonialism had barred Africans from commerce
and industry to secure the supply of their labour to setler ag-
riculture hence for example, the dominance of Asians in the
duka trade. Into independence, therefore, the government
undertook the indigenizaton of trading, the hitherto exclu-
sively Asian Bazaar Street in Nairobi becoming Biashara Street
even as it incorporated African business people. To enable
such entry of Africans into commerce and industry, the gov-
ernment established various natonal sources of investment
capital whose operatons were reportedly quite ethnically
contrived.
12
Thus, even as budgetary spending opened up the
development gap between the former White Highlands and
the rest of the country, government-sponsored non-budget
investments also favoured people from the same area. By
1965, prominent independence struggle natonalists would
lament Kenyatas substtuton of their ideals with ethnically-
driven capitalist values (Odinga, 1965; Kaggia, 1975).
Through SP 10/1965s promise of free or heavily subsidized
social services to eradicate poverty, disease and ignorance,
great steps were made during the frst independence decade
when economic growth provided resources to fnance the
delivery of social services which had been shifed in 1966
from the local authorites to the central government. Service
delivery weathered the frst global oil crisis (1973), but the
impact of the second one (1979) saw the onset of adverse
efects. Meanwhile, weak scrutny over public fnances had
encouraged the growing mismanagement of government
resources, further undermining service delivery.
13
Such mis-
management had partally been created by the 1971 Ndegwa
Report that allowed public ofcers to also indulge in private
business (Republic of Kenya, 1971), in total disregard of the
resultng conficts of interest.
As the fow of budget resources to sub-natonal levels became
increasingly erratc, social fund raising, harambee, became
the main source of social sector infrastructure investment
(Mbithi and Rassmusson, 1977). This increased regional
inequalites as the performance of harambee favoured
economically beter-of areas of the country (Miguel, 2000):
besides such regions elites having more money, they invari-
ably also had beter connectons in the natonal government,
providing easier access to available state resources.
Moi: Following Kenyatas footsteps
These practces were extended into Mois presidency (1978)
during which he chose to follow in his predecessors footsteps
(fuata nyayo). However, his new elite would come largely
from his Rif Valley backyard of the Kalenjin. The economic
stagnaton into the 1980s of sub-Saharan Africa [SSA] un-
dermined the resources with which to fund free and heavily
subsidized public social services as reported in the Berg
Report (World Bank, 1981). The need for internatonal budget
support caused Kenya to lead other SSA governments into
adoptng the neo-liberal Structural Adjustment Programmes
[SAP] of the Breton Woods insttutons. Under SAPs, the In-
ternatonal Monetary Fund [IMF] supervised macro-economic
reforms while the World Bank oversaw the restructuring of
economies. SAP conditonalites dictated the retreat of the
state to concentrate on policy and regulaton while service
delivery would be transferred to private entrepreneurs.
14
For
social sector services, SAP dictated cost-sharing and/or cost
recovery for publicly provisioned services, ofen undermin-
ing access among the poor. The Kenya government was also
required to divest in state corporatons, and to review public
sector employment, leading to retrenchment and early retre-
ments. SAP reforms also abolished the Tri-Partte Agreement
(between the government, unions and employers) which had
made it difcult for employers to lay of surplus labour. While
Kenyas adherence to SAP reforms was erratc (Mosley, 1995),
the reforms it did undertake had modest positve impacts on
service delivery (Mbugua, 1993).
15

Despite the 1966 of-loading of social service delivery to the
central government, Kenyas parallel local government system
contnued in a much diminished role, given that its main rev-
enue source, the Graduated Personal Tax was also eventually
removed. The authorites reliance on more modest revenue
sources, such as land rates and produce Cess, coupled with
the pervasive weak scrutny of public fnances, led to high
levels of indebtedness and the inability to even pay salaries.
Consequently, the early 1990s saw the launch under the Ke-
nya Local Government Reform Programme, of the short-lived
local authority service charge designed to boost revenues.
A government rescue package came in 1998 in the form of
the Local Authority Transfer Fund [LATF] designed to fnance
debt repayments and provide services prioritzed through the
Local Authority Service Delivery Acton Plan [LASDAP]
16
. Into
the Millennium, urban local authorites also took to the ag-
gressive collecton of parking fees, while natonwide reforms
were undertaken in water supply management that delegated
provisioning to a complex network of insttutons, raising ad-
ditonal revenues for the various authorites.
In 1971, the government launched the short-lived Special
Rural Development Programme [SRDP] which only took
of in fve out of the 15 arid and semi-arid districts it had
originally targeted (Ergas, 1982). The collapse of SRDP has
been atributed to its top-down approach which undermined
local ownership; but the programme has been commended
for the lesson on the need to integrate agriculture strategies
with rural development strategies. In 1983, Moi returned to
the idea of sub-natonal development prioritzaton, planning
and implementaton with District Focus for Rural Develop-
ment (DFRD) which however, failed because of its lack of
independent funding, as well as the dominaton of its District
Development Commitee base by the District Commissioner
and district sector heads.
Besides the social sector, SAPs also targeted roads, energy and
communicatons. The Roads Maintenance Levy Fund [RMLF]
(1994) witnessed weak collectons through toll statons, but
collecton improved through a direct fuel levy alongside other
public fnancial management reforms. The inital central man-
agement of RMLF by the Kenya Roads Board has given way to
separate highway, rural and urban roads authorites, improv-
ing performance considerably in the context of results-
based management reforms. On energy, the early reforms
separated power generaton from its distributon; but more
recent reforms have distnguished transmission from market-
ing functons. While privatzaton has not borne fruits in the
railway sector, it has made the natonal airline highly compet-
tve internatonally. Reforms at the Communicatons Commis-
sion of Kenya have also borne extensive fruits. Privatzaton
of fxed and mobile telephony has resulted in competton
that has vastly improved service delivery afer many years in
which especially the Moi regime hampered access (Arunga
and Kahora, 2000).
Kibaki: CDF and economic recovery
Within central government, however, reforms have not
performed as commendably. The government undertook its
inaugural Public Expenditure Review [PER] in 1997, which
revealed weak links between policy, planning and budget
executon. This adverse reality was ably refected in natonal
poverty hitng an independence-era peak of 57 per cent
towards the year 2000. The 1999/2000 introducton of the
Medium Term Expenditure Framework [MTEF] budgetng
approach was designed to improve the links between policy,
planning and budgetng, but has had modest success. For
example, the compliance rate for expenditure management
indicators for 2003 and 2004 stood at 20 per cent and 25 per
cent respectvely (Government of Kenya, 2004). A further rev-
elaton of the PERs was the weak atenton to development
or investment spending (which can target potental poverty
alleviatng areas): the 2004 PER found the spending level at
53 per cent between fnancial years 1998/99 and 2002/03.
Annual PERs have since been insttutonalized.
The weak fow of budget resources to district sector ofcers
had increasingly undermined their service delivery, raising
the profle of harambee fund raising. A partal reason for this
anomaly was Parliaments weak scrutny over public resourc-
es, which enabled senior ministry ofcials especially those
with the right politcal god-fathers to divert budgeted re-
sources between districts and across actvites. Thus, haram-
bee fund raising became the centre-piece of local develop-
ment initatves, providing a platorm upon which serving and
aspiring politcians could market themselves (Nyanjom, 2010).
The growing burden of demands for harambee funds led to
Parliaments 2003 launch of CDF, amountng to 3.5 per cent
of ordinary government revenues, managed by the sitng
parliamentarian as patron over a largely handpicked commit-
tee.
17
CDF has had some impressive results; but audits have
revealed extensive improprietes. The Free Primary Educa-
ton Fund and the Consttuency Aids Control Commitee fund
joined CDF, LATF and RMLF as decentralized funds designed to
avert the direct control of ministries.
The NARC victory at the 2002 general electons was based
on the broadest ethnic and regional platorm of the inde-
pendence period. The government launched the Economic
Recovery Strategy 2003-07 [ERS] which raised the growth rate
from near zero during Mois last year in power, to nearly 7 per
cent by 2007. Composed of elements of the Moi era civil soci-
ety, the NARC government opened up politcal and economic
space. Yet, the many fne promises of the NARC govern-
ment were soon thrown out of the door as a kitchen cabinet
developed around the President dubbed in the media as
the Mt Kenya mafa. Prominent among the disappointments
was the failure to deliver a new consttuton in 100 days. The
government also failed to fnalize the Goldenberg Scandal
which looted about Ksh 57 billion from the Exchequer in the
early 1990s. Meanwhile, an even grander scam was emerging
in the form of the phantom Anglo-Leasing contracts in which
payments were made against no deliveries (see Wrong, 2009).
By 2005, these misgivings against a divided NARC govern-
ment led to the rejecton of the Proposed Consttuton at a
referendum.
One argument behind decentralised funds had been that
they might reduce horizontal inequalites across regions by
providing grassroots resources with which communites can
realize their own priorites. Yet, Kiringai (2006) has shown the
management of such decentralised funds to have litle sen-
sitvity for regional welfare disparites. Kiringa (2006) points
out that the District Budgetary and Decentralized Funds FY
1999/2000 to 2003/04 demonstrate that the patern of ag-
gregate district budget and decentralized spending per head
hardly discriminates for poverty across districts. The Central
Province districts which benefted from colonial and indepen-
dence era prejudices in resource allocaton, and consequently
have poverty levels below 30 per cent receive the same
aggregate allocatons per head as the districts of Western and
Nyanza provinces which inherited litle colonial investment
(absorptve capacity). Their poverty levels are generally
above 60 per cent. One cause of this anomalous situaton is
that while CDF allocatons are rightly based on a formula, it is
weak on equity, allocatng 75 per cent of its resources equally
across the 210 consttuencies, and only 25 per cent based on
consttuency poverty rates.
The aggregate efect of colonial and independence govern-
ment policies and practces has been to exacerbate regional
inequalites that were initally based on the natural resource
disparites refected in Table 3.1s AEZs. Yet, Libya and Israel
show what the right politcal will can do to harness inherited
disadvantages of nature for the welfare of a countrys cit-
zens
18
. Within Kenya, Tifen et al (1994) have also illustrated
how otherwise marginal environments can be harnessed to
produce the means for welfare enhancement.
The inequalites of centralised governance
Table 3.2 illustrates the extent of welfare inequalites across
the Kenya. While the average Kenyan may not be aware of
these statstcs, they are nonetheless conscious of disparites
in well-being such as through media reported outputs of
harambee actvites. Note for example, the twofold disparity
in the range of provincial poverty levels and facility delivery
rates, the three-fold range in primary enrolment rates and the
eight-fold diference in secondary enrolment rates.
Table 3.2: Provincial Welfare Indicators (%), 2007
19
Province Rural
Poverty
(2005)
Immunisaton
Coverage (2007)
Facility
deliveries
(2006)
Net
primary
Enrolment
(2007)
Net
Secondary
Enrolment
(2007)
Central 30 85 71.8 82.5 33.3
Coast 70 78 31.7 80.8 13.7
Eastern 51 78 37.6 98.3 25.3
North
Eastern
75 81 11.7 27.5 4.3
Nyanza 58 66 46.7 98.3 27.0
Rif Valley 50 70 33.6 97.8 22.9
Western 54 66 25.7 99.0 23.9
Nairobi - 78 77.0 29.0 25.7
Source: KIPPRA (2009), various tables and fgures
In summary
In the centralized governance system that substtuted devolu-
ton in 1965, a powerful president presided over a cabinet of
quite powerful ministers.
20
The cabinet was replicated over
fve sub-natonal ters, viz. province, district, division, locaton
and sub-locaton. The president chose (his) cabinet ministers
and their assistants from elected or nominated parliamentar-
ians, resultng in extensive subservience, especially during
one-party rule. The president also directly or indirectly
(through cabinet ministers) appointed all board members and
senior managers of state corporatons. Signifcantly, Kenya has
held general electons every fve years since independence,
and the turn-over among parliamentarians has been quite
remarkable.
Besides producing parliamentarians, the electons have also
produced the politcal leaders of Kenyan local authorites, to
which bureaucrats and technocrats are seconded by the Local
Government ministry. Beref of prime revenue generatng op-
portunites, and in the context of over-centralisaton of func-
tons in central government ministries, most local authorites
have been mere shells. Thus, the elected leaders nearest to
the people have had very litle scope for serving the elec-
tors, leaving the bulk of development actvity in the hands of
remotely situated government ministries in Nairobi.
The Planning ministry has traditonally produced a fve-year
natonal development plan from which in theory, costed An-
nual Operatonal Plans [AOP] are derived for ministries, which
result in the natonal budget. The government launched its
long term plan, Kenya Vision 2030, in 2008, which provides
the background against which ministries now produce their
respectve fve-year sectoral medium term plans. Since the
late 1970s, districts also produced costed fve-year develop-
ment plans from which respectve sector AOPs were gener-
ated. In theory, the sectoral operatonal plans of all districts
would be aggregated to create a partcular ministrys AOP
and budget. In practce, however, this is not always the case,
meaning that district priorites do not enter the natonal-
level budget directly. Further, fnancial regulatons require
that any changes to the ministerial budgets by Parliament
be approved by Treasury; yet, wanton impunity has seen
ministers ofen transfer money between actvites and across
regions without authority. Districts on the margin of natonal
politcs have sufered most from such mismanagement of
public fnances. Such misconduct has merely undermined the
efectveness of public spending, as repeatedly highlighted by
the PERs.
Such circumstances have fuelled the sustained demand for
the country to go beyond Kenyas historical cosmetc decen-
tralizaton described above to substantve consttutonal devo-
luton, such as is provided by the Consttuton (2010). Politcal
awareness has grown in Kenya during the two decade-long
demand for the comprehensive review of the old consttuton.
The debates arising have caused the proverbial Wanjiku
21
to
know that her poor welfare must be related to impunity of
the old consttuton. She can therefore understand why some
well-of people contnue to resist consttutonal changes that
reduce the excessive control of public resources by the central
government, such as through devoluton to countes.
4. Devoluton: a review of the literature
Afer presentng a history of centralized governance in Kenya that has failed to raise human welfare by diminishing poverty and
inequalites, this secton looks at the theory and practce of decentralized governance in general, and devoluton in partcular.
It fnds that while countries practce some form or other of decentralizaton, governments in sub-Saharan Africa are reluctant
to surrender control of money to sub-natonal levels. It also fnds that while there are risks to decentralizaton and
devoluton such as the transfer of corrupton to sub-natonal levels, the reforms can enhance democracy and partcipaton
towards welfare improvements.
from a central authority to the lowest feasible sub-centre.
Within government, such functons could include botom-up
actvites, such as analysing contexts to identfy underlying
problems and making policies and planning for their resolu-
ton. Further functons could include revenue-generaton,
budget executon, accountng and auditng, and monitoring
and evaluaton.
4.2 Ratonale for devoluton
Proponents of decentralisaton in general, and devoluton
in partcular, ofen cite efciency, equity and partcipaton
or empowerment or citzen partcipaton as the underlying
motves. Because devoluton takes service delivery away
from the central(ised) government, it is presumed to respond
to the inefciencies of the later (Commonwealth Secre-
tariat and Commonwealth Local Government Forum,2001).
The persistent failure of centralised government to deliver,
especially if the failure is selectve, can also induce secession-
ist tendencies, which devoluton can stem. In this context,
poverty reducton has also been cited among the ratonales
for devoluton; but over whose impact, however, the jury is
stll out (Cabral, 2011). That devoluton entails electons at the
sub-natonal level also suggests democratc deepening which
provides electors with an improved opportunity to choose
from accessible local candidates, rather than naton level can-
didates they may never interact with. Thus, devoluton might
improve the scope for delivering micro-concerns, such as the
provisions of a Bill of Rights, and aspects of afrmatve acton,
which a central government might pay inadequate atenton
to. However, Cabral warns that devoluton is not a one-stop
remedy for problems of inefciency, inequity and exclusion:
devoluton structures must be optmal to genuinely aspire for
those goals, lest they breed their own inefciencies.
4.3 Optmising devoluton prospects
Devoluton outcomes depend on the country context within
which it is to be undertaken (Cabral, 2011). Politcal goodwill
is signifcant for creatng an environment free of acrimony in
which the distributon of roles and resources between the
central government and devolved agencies are to work. Thus,
efectve democratc values will support devoluton a lot more
All producton insttutons households, companies, coun-
tries undertake some form of decentralizaton, the only
diference being in the extents which refect the ratonale
behind decentralizing, and is signifcant for choosing between
the various modes of decentralizaton. Cabrals (2011) well
researched literature review on devoluton notes that decen-
tralizaton is a non-monolithic, vertcal sharing of power, but
also recognizes the problems people have with its meaning,
which is sometmes greatly infuenced by country specifc
conditons.
4.1 Concepts surrounding devoluton
Devoluton is a partcular kind of decentralizaton, the others
being deconcentraton, delegaton and some argue priva-
tzaton. Cabral (2011) notes quite rightly that decentraliza-
ton is a complex mix of actvites. Deconcentraton relocates
executon to one or more lower administratve or geographic
ters, while delegaton takes a larger package of responsi-
bilites outside the mother realm, such as a government
delegatng provisioning to a state corporaton/parastatal or
semi-autonomous government agency with an autonomous
management framework. However, the most far-reaching
form of decentralizaton is devoluton also referred to as
democratc decentralisaton - which ofen involves ceding
power of revenue generaton and expenditure (executon) to
an elected entty, such as a local authority.
A further classifcaton distnguishes administratve decen-
tralisaton from politcal decentralisaton. The former merely
focuses on decentralising systems, such as personnel, which
remain highly dependent of the centre, while the later
involves electng managers of the sub-natonal enttes, ofen
accompanied by some autonomy, such as in local authori-
tes. This classifcaton also provides for fscal decentralisaton
which primarily involves sub-natonal management of taxes.
Cabral (2011) also distnguishes privatsaton or deregulaton
as separate categories of decentralisaton, a positon that is
difcult to ratonalise since they both involve the transfer of
ownership or authority outside the parent entty.
However, it is conceived decentralisatons underlying princi-
pal of subsidiarity involves the transfer of selected functons
than a non-democratc context would, the former providing
greater space for mobilisaton of grassroots partcipaton,
and of stakeholders. Politcal support is likely to ensure that
adequate legal and insttutonal frameworks exist for the
enterprise. For example, devoluton based on a natonal con-
sttuton is preferable to that based on any other legal or non-
legal framework, as a consttuton is arguably less susceptble
to the whims of leaders. Such a context is also likely to sustain
policy coherence and an environment in which to monitor
accountability.
Devoluton is also likely to work beter in the context of posi-
tve economic performance that avails the resources, such as
natonal revenues, with which the natonal and sub-natonal
governments can deliver their respectve responsibilites. Dis-
parites in resource endowment across devolved units ofen
refect similar disparites in capacites for autonomy. Conse-
quently, the ability of the central government to subsidise
sub-natonal operatons becomes critcal.
A third critcal determinant of devoluton outcomes is the
design of the enterprise. Besides its rootng in a consttuton
or legislaton, at least, devoluton requires an unambigu-
ous assignaton of roles and resources between the natonal
government and the devolved enttes, as well as among the
devolved enttes. Along these lines, the frst issue is to assign
expenditure, which amounts to sharing functons between
the natonal and sub-natonal levels sub-natonal govern-
ments [SNG] in a way that ensures there is neither duplica-
ton nor gaps in service delivery. In this respect, the existence
of a human resource capacity for delivering such services
cannot be over-emphasised.
To ensure such delivery of services, a further important area
in the design of devoluton is to assign revenues. Devolved
units also face varied capacites to generate own resources,
meaning they must be a scope for subventon. The small size
of the formal sectors of developing countries limits the scope
for formal tax-based revenue generaton. This is especially
so for those largely rural-based SNGs whose preponderant
subsistence livelihoods are outside the taxaton-targeted
market economy. Such fscally weak SNGs must consequently
beneft from grants from the central government, referred to
as inter-governmental fscal transfers [IGFT] (Decentralisaton
Thematc Team, n.d.).
Transfers may be ad hoc, meaning the amounts granted are
neither set in size, nor frequency, or both. Alternatvely, and
preferably, transfers can be formula-based, meaning for
example, that a change in any of the elements of the formula
automatcally changes the size of the grant. Natonal govern-
ments can provide conditons for the use of IGFTs (condi-
tonal grants), or such grants can be unconditonal, meaning
recipient SNGs may determine their own priorites of use.
Broadly, the purpose for such transfers include the equaliza-
ton of resources across all SNGs, or they could simply address
SNG weaknesses in collectng revenue; or fnally, they could
be designed to provide a vent for service delivery in SNGs
that face unexpected burdens, such as an infux of displaced
persons.
While transfers can even out inequalites in resource capaci-
tes, it is important that atenton is paid to other potental
sources of inequality. Thus, for example, conscious decisions
are necessary on the choice of boundaries and consequent
SNG populaton sizes. Boundaries could be determined by
nature such as following rivers, mountains ranges or valleys,
or they could respond to socio-economic realites, such as
ethnicity, religion, language, history, race or socio-economic
status. The foregoing consideratons refect the strong possi-
bility of prospectve SNGs being at diferent levels of readi-
ness to assume their roles. This suggests it might be useful
for the devoluton framework to incorporate a staggered
implementaton.
As previously noted, while decentralizaton is in principle
potentally good for efciency, it is critcal for the designers of
the programme to ensure that its extent is optmal. Decentral-
isaton could for example, lead to excessive competton for
investment resources among SNGs (Rodriguez-Pose and Gill,
2003). The other risks inherent in determining the optmal
level of decentralizaton include the following:
Ignorance and the capacity to partcipate: while partci-
paton is good, it should be based on good informaton.
Indeed, the desire for partcipaton may be driven by a
mere desire to rein in a rogue government, rather than
the existence of an alternatve, more efcacious agenda.
Weak or non-existent sub-natonal insttutons: given
that the failure to rein in the adversites of nature con-
tribute to individual and regional inequalites, insttuton-
al underdevelopment in poor regions leaves them with
inferior capacites to address such inequalites.
Transfer of inefciencies: decentralizaton is unlikely to
resolve inefciencies whose source has not been cor-
rectly diagnosed. This can include the transfer of the
excesses of the natonal level, such as corrupton, to the
sub-natonal level.
Incestuous socio-economic enclaves: where devoluton
creates irratonal enclaves, such as of ethnicity, religion
or culture the short-term efect could be further margin-
alizaton that in the long term requires more resources
to redress.
These factors point to the need to take stock of the charac-
teristcs of the sub-natonal level to enable the design of a
devoluton framework that is responsive to revealed needs.
An appropriate monitoring and evaluaton framework is nec-
essary which must involve citzens at the grassroots.
4.4 Devoluton in practce
Decision-making in much of pre-colonial African society was
based on consensus under the guidance of traditonal chiefs.
Such chiefs were ofen displaced by authoritarian chiefs under
colonialism. Among the laters primary functons was the
collecton of punitve taxes designed to force the indigenous
people to sell their labour to enterprises, such as the set-
tler farms in Kenyas White Highlands. Colonialism under-
scored ethnic diferences to undermine emerging natonalist
consciousness, resultng in a many unsustainable politcal
partes on the eve of independence. However, the foremost
natonalists were able to convince the marginal partes to
disband and form a united politcal front into independence.
The underlying logic behind such unity was the conservaton
of scarce natonal resources to be channeled into what was
assumed to be an undisputed natonwide agenda to eradicate
the universal evils of poverty disease and ignorance. Thus,
the single politcal party system prevalent across the African
contnent perpetuated the unitary state inherited from colo-
nialism. As the tyranny of the one-party unitary state became
evident into the second independence decade
22
amidst the
economic set-backs provoked by the dual 1970s oil crises --
demands grew for both mult-partyism and a decentralisaton
of the state. Resistance from incumbent leaders triggered the
numerous military coups that became characteristc of SSA, a
development that enhanced the centralised state.
The liberalizing World Bank and Internatonal Monetary Fund-
ordained SAPs designed to jump-start African economies into
the 1980s also prompted an opening up of politcal space
allowing for oppositon politcs. In turn, this has enabled
politcal party diferentaton within countries; but this has not
necessarily weakened the central governments control over
the purse strings. Cabrals (2011) exhaustve review of the
literature on decentralizaton in Africa, and Kauzyas (2007)
selected country study recognize Ndegwas (2002) stock-tak-
ing survey to be the most comprehensive comparatve study.
One of Ndegwas fndings was that, (T)he degree of fscal
decentralizaton is best revealed by the fact that in 19 out
of 30 countries (of that study) local governments control less
than 5% of the natonal expenditure. This fgure contrasts
starkly with the levels of sub-natonal fscal responsibility
elsewhere in the world, such as the average 40 per cent of the
Nordic countries. The most extreme form of decentralizaton
is the federal state of which SSA only has four, viz. Comoros,
Eritrea, Ethiopia and Nigeria. However, the contnent has
various experiments with consttutonal devoluton, the most
signifcant probably being that of South Africa. Besides the
perpetuated colonial heritage of the unitary state, Ndegwa
ascribes weak fscal decentralizaton to the prevalent insttu-
tonal insecurity of African states (amidst persistent centrifu-
gal forces), as well as the weak sub-natonal capacites to
generate and manage (fscal) development resources. A study
of decentralizaton in Africa is ofen therefore more a study of
administratve and politcal decentralizaton than it is of fscal
decentralizaton. Ndegwa (2002) took stock of decentraliza-
ton across 30 SSA countries based on the perceptons pro-
vided by World Bank colleagues statoned in those countries
23
.
The approach is therefore obviously subjectve, and the use of
natonal averages hides sectoral and/or regional diferences,
while the cross-sectonal snapshot picture also does not allow
consideraton of important negatve or positve changes which
might have taken place over tme. Nonetheless, Ndegwas
fndings on the aggregated country levels of administratve,
politcal and fscal decentralisaton are presented in Chart 3.1.
The chart shows the consttutonally devolved states of South
Africa and Uganda to have the highest levels of decentraliza-
ton. Interestngly, these unitary states have higher levels
of decentralisaton than the consttutonal federal states of
Nigeria, Eritrea and Ethiopia. Kenya was fourth on the extent
of politcal decentralizaton, but performed much worse on
administratve and fscal decentralizaton, placing seventh and
sixth respectvely.
Chart 4.1: The Status of Decentralisaton in Africa
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Source: Ndegwa (2002)
An interestng fnding was that the former French and Portu-
guese colonies were less decentralized than the Anglophone
countries, probably explained by the former countries Roman
law traditons. The exceptons of this colonial heritage are
Mozambique and Rwanda which have severed tes with their
former respectve colonizers, the Portuguese and Belgians.
Ndegwa (2002) found that early administratve decentraliza-
ton led to a more advanced form of politcal decentralisaton.
Among the highly decentralized countries, administratve
decentralizaton closely tracked politcal decentralizaton,
whereas among the weak decentralisers, it is politcal decen-
tralizaton that trailed administratve decentralizaton. Consis-
tent with the mere fve per cent control of public fnance by
SNGs, fscal decentralizaton was poorest all round.
The importance of politcal will for decentralizaton is illus-
trated by the experiences of three African countries reform-
ing out of adverse contexts (Kauzya, 2007). South African
devoluton provided by the 1994 consttuton was a response
to the insttutonalized inequalites of the apartheid years. In
Rwanda, the policy measure responded to the 1994 geno-
cide while in Uganda, the 1995 consttuton sought to make
amends arising from protracted civil war. The politcal will for
decentralizaton in Uganda was sufciently strong to enable a
pilotng of the programme in order to improve its design and
implementaton tmetable. However, the Ugandan presidency
has recently reportedly transformed decentralisaton into a
politcal weapon for controlling smaller countes. In Rwanda,
contrary to expectatons, deeper ratonalizaton of the experi-
ence led to a three-fold reducton in the number of local
authorites, from 106 to 30.
In Cabrals (2011) review of the efciency impact of decen-
tralizaton, she found that partcipaton was signifcant for,
but not the only important factor in enhancing efciency.
Planning and resources, and indeed, coordinaton among per-
tnent ministries and agencies are also important. But Cabral
also warns of the need to be wary of the motves behind elite
support of decentralisaton, as these may be self-serving.
Indeed, Fjeldstad (2003) emphasises the need for strong
insttutons and informaton fows in the context of efectve
accountability frameworks among well-remunerated staf to
deter corrupton under decentralisaton.
Petersons (2001) study of fnancing reforms in Ethiopia also
underscores the need for successful devoluton reforms to
be evolutonary rather than revolutonary if devoluton is to
work, frst understanding the administratve fnancing systems
reforms that manage inputs before addressing the fnancial
management aspects.
5. Consttutonal Devoluton in Kenya
Secton 3 considered the manner in which Kenya has hitherto been governed, and with what welfare outcomes. This secton reviews
the provisions for devoluton in Kenya, notably Chapters 11 (Devoluton) and 12 (Public Finance) of the Consttuton. It does so
keeping in mind some of the concerns raised in Secton 4 on the design and implementaton of devoluton reforms.
natonal communicatons network. Yet, devoluton also had its
detractors, which made the fnalizaton of the new const-
tuton a tricky process. However, the process was greatly
assisted by its being part of the tme-bound Agenda Item Four
reforms of the Natonal Accord and Reconciliaton Agreement
that ended the 2008 post-electon violence. One of the most
contentous issues that the Commitee of Experts[COE]on
Consttuton encountered during the drafsmanship of the
Proposed Consttuton of Kenya 2010, was what should be
the numbers and boundaries of the countes in Kenya. This
would have delayed the fnalizaton of the Proposed Consttu-
ton of Kenya, 2010. However, COE setled on the 47 districts
that had been created by 1992, according to the provisions of
the outgoing consttuton to be the numbers and boundaries
of countes
24
.
In line with improving governance, the Consttutons Pre-
amble declares and afrms the sovereign power belongs to
the people of Kenya, thereby deviatng from percepton in the
Old Consttuton that supreme power belonged to the Presi-
dent. Artcle 6 of the Consttuton provides, Kenya is devolved
into the 47 countes specifed in the First Schedule, and that
the natonal and county governments are distnct and inter-
dependent, as elaborated in the Fourth Schedule. Artcle 10
lists the various values and principles of natonal governance
to include amongst others: patriotsm; natonal unity; sharing
and devoluton of power; partcipaton of the people; equity;
social justce; non-discriminaton; protecton of the margin-
alized; good governance; transparency and accountability;
and sustainable development. Chapter Six has extensive
provisions on leadership and integrity, which is one of the
ways that people of Kenya can exercise their sovereignty by
scrutnizing potental leaders and holding them to account
based on the ethics enumerated in the chapter . Chapter Four
on the Bill of Rights [BOR] has extensive provisions on rights
and fundamental freedoms which include the economic and
social rights (Artcle 43) and the family (Artcle 45) are best
monitored at the sub-natonal level.
Chapter Eight establishes Parliament, the Natonal Assembly
and the Senate (Artcles 93 to 96). The Senates primary func-
ton is to protect the interests of the countes and their gov-
ernments, debatng and approving bills concerning countes,
sharing out the countes share of natonal revenues, which
As illustrated in the discussion of Secton 3, Kenyas peren-
nial problem has been a governance problem, which has had
an adverse efect on the management of budget and other
resources for equitable natonal development; the poor out-
comes were illustrated in Chart 3.1 and Table 3.2.
Kenyas 1991 return to mult-partyism was the culminaton of
extended demands for good governance.. As the demands for
a comprehensive review of the existng Consttuton persisted
Moi reluctantly agreed to piecemeal insttutonal and legisla-
tve governance reforms. Thus, for example, the 1997 Inter-
Partes Parliamentary Group agreement allowed oppositon
partcipaton in overseeing the electoral process, while 1999
saw the establishment of the short-lived Kenya Ant-Corrup-
ton Agency. Meanwhile, 2002 saw the establishment of an
initally cosmetc Kenya Natonal Commission of Human Rights
[KNCHR]. However, stronger governance reforms came on
board afer the 2002 electoral defeat of the ultra-conservatve
KANU government, which consequently handed power to the
widely supported NARC party in 2003. NARC insttuted vari-
ous far-reaching governance reforms, such as giving full life
to KNCHR, and the enactment of various legislaton, including
the Ant-Corrupton and Economic Crimes Act (2003), Pro-
curement and Disposal of Public Goods Act (2005), and Public
Ofcers Ethics Act (2003). However, it reneged on its electon
manifesto promise of a new consttuton within frst 100 days
in ofce. This drove the persistng demand for a new consttu-
ton upon which to anchor the new laws and insttutons.
The promulgaton of the New Consttuton in 2010 was the
realizaton of this later desire. Various of provisions within
it are devoted to the principles of good governance, whose
implementaton would provide a context within which to
implement the devoluton provided in Chapter Eleven.
Indeed, the failure of Kenyas original atempt at devoluton
arose precisely because it had no roots in the philosophies
of the pre-eminent politcal partes: KANU was unashamedly
unitarist while KADU only aspired for devoluton at the behest
of the setler community. In 2010, the demand for devoluton
grew from an arguably deeper-seated logic of securing broad-
based good governance. Successive politcally intolerant,
over-centralized governments had provided scant opportunity
for popular partcipaton. This was especially the case for
those Kenyans in the more remote areas under-served by the
shall not be less than 15 per cent of total revenue. Artcle 98
provides for 47 senators elected by the countes, 16 women
members nominated from party lists, a man and woman
representng the youth and another pair representng people
with disabilites, and an ex-ofcio Speaker. Artcles 110 to 112
address the special and ordinary bills concerning the county
governments [CGs].
Chapters Eleven and Twelve address devoluton specifcally.
Artcles 174 and 175 list the nine objects of Kenyan devolu-
ton (see Box 5.1), and the related principles, which include
democracy, separaton of powers, reliable revenues and
gender sensitvity. Artcle 176 read together with the First
Schedule provides for the CG made up of a county assem-
bly [CA] and county executve commitee [CEC], the assem-
blys compositon being listed in Artcle 177 while the CEC is
elaborated upon in Artcle 179. Artcles 180 to 182 discuss the
ofces of the governor and deputy governor including the
terms under which disciplinary acton may be taken against
them, while CEC and CA are discussed in Artcles 183 and
185, respectvely. The CGs functons are listed in Part 3 of the
chapter (Artcles 186 and 187, read together with the Fourth
Schedule), while the relatonships between the county and
natonal governments is defned in Part 5, including how pos-
sible conficts between natonal
and county legislatons will
be addressed. Part 4 provides
that county boundaries may be
varied and lists in Artcle 188(2)
factors that should be taken
into consideraton when varying
the boundaries; these include
populaton density, costs of
administraton, geographical
features, the views of communi-
tes afected and infrastructure.
Artcle 195 empowers CA to
summon any person before it
for evidence or informaton
under powers similar to those
of a High Court while Artcle 196
obliges CA to conduct its busi-
ness in public and to promote citzen partcipaton unless the
speaker deems exclusion necessary.
Box 5.1: Artcle 174s objec-
tves of devoluton include:
Promotng democratc and ac-
countable exercise of power;
Fostering natonal unity amidst
diversity;
Enabling self-governance of the
people towards their interroga-
ton of the State;
Recognising the right of com-
munites to self-management
and development;
Protectng and promotng the
rights and interests of minori-
tes and marginalised groups;
Promotng socio-economic
development;
Ensuring equitable sharing of
natonal and local resources;
Ratonalising further decentrali-
saton of State organs; and
Enhancing checks and balances.
Beyond role assignaton (Fourth Schedule), Chapter Twelve
of the Consttuton addresses public fnance issues, includ-
ing expenditure assignaton which is critcal for devoluton.
The public fnance principles are listed in Artcle 201, and
emphasize openness, accountability, public partcipaton, and
the promoton of an equitable society with fair taxaton bur-
dens and revenue sharing towards equitable development.
Part 4 of the chapter establishes a Commission on Revenue
Allocaton [CRA] (Artcle 215) whose functons are listed to
include recommending the basis of sharing revenues between
the natonal and county governments, as well as among the
later (Artcle 216). In this undertaking, CRA will be guided by
the consideratons of Artcle 203. Besides an equitable share
of natonal revenues, CG may access additonal conditonal
or unconditonal grants (Artcle 202) from the government.
CG dues shall be payable into their respectve Revenue Funds
from where it will be withdrawn through an Act of Parliament
and with the approval of the Controller of Budget (Artcle
207). An important consttutonal provision for CGs is Artcle
219s requirement that the natonal government transfer
county dues without undue delay and without deducton
Finally, in recogniton of the vast regional (and other) inequali-
tes across the country, Artcle 204 establishes an Equalisa-
ton Fund worth 0.5 per cent of all government revenues.
This fund is to be used for providing basic services including
water, roads, health facilites and electricity to marginalized
areas to the extent necessary to bring the quality of those
services in those areas to the level generally enjoyed by the
rest of the naton, so far as possible.
In Part 3 of the chapter, the Consttuton shares out the po-
tental tax revenue sources, with Artcle 209 (1) allocatng the
main taxes to the natonal government, including income tax,
value-added tax, customs dutes and other dues on imports
and exports, and excise duty. The CGs potental sources of
revenue include property rates, entertainment taxes, and any
other taxes legislated by Parliament. CGs may also borrow
with the approval of their respectve CA and the natonal
government. Finally, Part 6 (Artcles 226 and 227) of the Con-
sttuton provides for the control of public fnances, including
the public audit of all public enttes as well as regulaton of
procurement of public goods.
The broad principles of devoluton outlined above required
that both legislaton and insttutons be in place for their
operatonalizaton, as is outlined by the Fifh Schedule. This
was the purpose served by the Task Force on Devoluton in
Kenya, which undertook extensive natonwide consultatons
on the design of devoluton. It completed its assignment by
producing six bills, viz. County Government Financial Manage-
ment Bill, Devolved Government Bill, Inter-Government Fiscal
Relatons Bill, Inter-government Relatons Bill, Transiton to
Devolved Government Bill, and Urban Areas and Cites Bill.
Notwithstanding the fact that only the last of these has been
passed into law, Figure 5.1 provides an organogram that
atempts to relate the various insttutons created by these
legislatons. One of the strongest points of this structure is
that it locks the disbursement of budget resources to the
existence of an integrated county development plan whose
producton must be widely consulted alongside its transpar-
ent implementaton.
The numbers of new insttutons necessitated by these bills is
vast, and will therefore impinge heavily on natonal revenues.
Yet, the evidence of the process and outcomes of half a
century of centralised development interventons is shown
in Chart 3.1 and Table 3.2. Devoluton ofers new possibilites
which must be ratonalised for costs, but must not be rejected
just because of such antcipated costs are high. The gover-
nance changes implied by the Consttuton should lead to
extensive savings in the public sector, such as through pruning
the cabinet, instlling natonal integrity to contain corrupton,
and insttutng performance contracts that ensure delivery,
amongst many others. Thus, devoluton could be a successful
avenue through which Kenya could raise human welfare, and
improve natonal cohesion and integraton while saving on
public spending.
6. Evaluatng Kenyan Devoluton
Following the previous sectons summary of the basic consttutonal provisions on devoluton, this secton reports on the research
questons presented in Table 2.1. The research questons were formulated before TFDK developed the devoluton bills. In the event,
the secton will illustrate the extent to which the TFDK bills and the Consttuton have addressed the concerns refected in the ques-
tons. It will further highlight issues that remain unresolved.
the average Kenyan. Another feeling was that the output of
the review process the Consttuton (2010) went too far
in the other directon with respect to separaton of powers: it
rightully took powers away from the President, but then gave
too much to the Legislature, including control of appoint-
ments and of fnances. Others felt the Consttuton rightly
gave power to wananchi, who can now speak out in demand
for transparency and accountability without fearing reprisals,
such as occurred during the Moi era. While streamlining poli-
tcs and fnancial management, the document also enhances
the fght against corrupton by making it a consttutonal is-
sue, unlike in the past where it merely a legislatve issue.
The Orange/Banana split of the 2005 referendum had been
confusing given the limited understanding of the then Pro-
posed Consttuton of Kenya
25
. Some partcipants noted, how-
ever, that their knowledge of the Consttuton was presently
limited to what they gathered from politcians and the media,
which might undermine their partcipaton in implementng
the Consttuton. One suggeston was that once the difer-
ences and gaps in the Consttuton are resolved, a further
referendum be held in 2030, while another suggeston was for
referenda to be held as necessary.
The foregoing concerns about the weak capacites of wanan-
chi to partcipate in discussions on technical issues were also
highlighted in TFDGs fndings. Consequently, and certainly
with respect to the Consttutons Chapters Eleven (Devolu-
ton) and Twelve (Public Finance), the Devolved Government
Bill has paid elaborate atenton to both capacity building
among, and partcipaton by, citzens. Chapter III provides for
citzen partcipaton in County Assembly [CA] proceedings
with Sectons 90 and 91 providing the criteria for pettons
and the right to a response. Chapter X mandates elaborate
civic educaton at county, sub-county, ward and village levels.
The partcipaton principle is also elaborated in Secton 89 of
Chapter VIII, with various sectons addressing access to infor-
maton on policies, budgets and implementaton. Secton 94
mandates the establishment of citzen partcipaton fora at all
county levels, while Secton 130 provides for a Citzen Service
Centre. The Governor is also mandated to provide periodic re-
ports on development implementaton. Finally, it is signifcant
This secton tries to relate Kenyas development history to its
history of governance, including its multple eforts at decen-
tralised governance, to see if the provisions of consttutonal
devoluton are likely to provide remedies to past development
botlenecks. It does this in the context of the six research
questons and objectves listed in Table 3.1, which guided
the studys feldwork. Before addressing those questons,
however, the study made an atempt to evaluate perceptons
of respondents on the desirability of a new consttuton, as
well as the suitability of the process through which it was
produced. The FGDs revealed a low understanding of the
contents of the Consttuton despite the massive eforts by
COE, which had involved extensive disseminaton, such as the
distributon of nearly seven million copies of the Harmonised
Draf Consttuton alone (COE, 2010: 80).
6.1 Overall FGD Perceptons on the
Consttutons
At the start of the FGDs, partcipants were asked to evaluate
the old consttuton, the process that produced the new one,
and the new consttuton. There was extensive agreement
across the FGDs that there was litle familiarity with the old
consttuton. It was however, perceived to have facilitated a
dictatorial, top down administraton in which the President
was paramount. Consequently, the old consttuton ofered
litle room for partcipaton, constrained freedom of speech,
and had loopholes which undermined transparency and pro-
moted corrupton. It presided over the inequitable sharing of
resources which promoted selectve poverty and divided the
country along ethnic lines, fostering a context in which only
the ftest survived. It largely ignored concerns of gender, the
disabled, minorites and the marginalized. One partcipant re-
fected the extent of disengagement with the old consttuton
by suggestng the need to impose limits to the presidental
term which had actually been introduced in the review of
1991 that returned the country to mult-party politcs.
Some respondents suggested the Bomas process had been
quite inclusive, arriving at good proposals; but others felt
the process was too full of experts and politcians, and thus,
sidelined Wanjiku, former Presidents Moi characterizaton of
that Artcle 255 of the Consttuton specifes issues changes to
which would require a referendum, as opposed to those that
merely require enactment by Parliament.
6.2 Gaps and Overlaps in the Consttuton
Many of the issues raised as gaps during the FGDs actually
merely refected a weak understanding of the Consttuton, or
indeed, the lack of a serious reading of the document. Below,
the various issues raised are integrated for the manageability
of their discussion.
A frst concern was the creaton of countes, a concern with
the unequal sizes and populatons of the Consttutons 47
countes. As with the parliamentarians, there seemed an
expectaton that the new districts would transform into more
than 250 countes a problem already alluded to above.
However, Artcle 188 of the Consttuton addresses the altera-
ton of county boundaries on the recommendaton of an
independent commission set up for the purpose by Parlia-
ment. Artcle 188 (2) further provides the eight factors to be
considered in such a boundary review. While the Consttuton
specifcally provides for (near) equality across consttuencies
and wards (Artcle 89), this is not the case with the countes.
The concern was that countes could end up being ethnic en-
claves, which would exacerbate current ethnic tensions. This
is why it was judicious not to open the debate over countes
so near to the 2010 referendum.
Partcipants made inquiries in regard to the insttuton of
mayors, about which Artcle 184 provided that legislaton
would specify. It is curious that TDFK had originally not ad-
dressed this issue in any detail given that it had referred to
Kenya Vision 2030 among whose centre-piece undertakings
is the Nairobi Metropolitan Authority designed to swallow
up about 12 neighbouring Local Authorites [LA]. However,
the passage of the Urban Areas and Cites Act abolishes LAs
by repealing the Local Government Act (Secton 77; see also
Secton 153 of the Devolved Government Bill) afer the frst
electon under the new consttuton, and elaborates the
structures to govern urban areas under devoluton. Sectons
44 and 45 of the Devolved Government Bill provide for the
establishment of urban authorites, with Part II of the Urban
Areas and Cites Act elaboratng the criteria for accession to
city, town and municipal status (Sectons 5 to 11). Secton 14
of the same act requires urban areas and cites to recognize
their agency with respect to their respectve countes for
whom they will depend on fnancially to fulfll delegated func-
tons under their management boards (Secton 15).
A related issue concerned the structure of CG and the
consequent roles of the CA and CEC, which the Consttuton
addresses in Part 2 of Chapter Eleven. CGs should decen-
tralise to the extent that it is efcient and practcable
to do so (Artcle 176 (1)). While TDFKs Draf Report had
setled on three levels, viz. the county, sub-county and the
ward, but with room for further grassroots insttutons. This
concern with the levels of decentralizaton was closely linked
to the Consttutons perceived vagueness on the fate of the
Provincial Administraton [PA] and LAs. Yet, the Consttutons
Sixth Schedule provides at Secton 17 for fve years within
which to transform PA to accord with devoluton, while Sec-
ton 18 legislated provision concerning LAs has already been
delivered by the Urban Areas and Cites Act. Indeed, the
FGDs raised concern about the prospect of expensive parallel
governments, should PA and LA be retained. The Devolved
Government Bill provides that CEC will be made up of sectoral
heads, and the current LA wards will likely become the CA
wards. TFDK had originally suggested that PA be given the role
of co-ordinatng naton statehood, confict resoluton, ethics
and such like maters, or indeed, that it could collect taxes on
behalf of CG.
However, the concerns with extents of county decentraliza-
ton have been addressed extensively in the Devolved Gov-
ernment Bill, whose Secton 44 provides for the county, sub-
county/urban/city, ward and village levels (see Figure 5.1).
While the county maps the same as the consttutonally-valid
districts as at 1991, the sub-county maps to parliamentary
consttuencies. The bill provides for 1,450 wards which do not
therefore map directly to the wards of the LAs, with the Inde-
pendent Electons and Boundaries Commission being required
to assign at least 25 wards to each county (Secton 28). While
the county will be under the Governor and CEC, Sectons 46 to
49 provide for administrators for the sub-county, ward and vil-
lage levels. The urban areas and cites will be administered by
boards backed by administrator-managers. Furthermore, the
Devolved Government Bill provides an elaborate framework
for informed citzen partcipaton through guaranteed access
to informaton, the establishment of citzen fora, as well as of
citzen service centres. Implemented efectvely, these insttu-
tons leave litle relevance for LAs and PA. Indeed, Secton 153
provides specifcally for the repeal of the Local Government
Act, afer which transitonal issues will be handled by the
Independent Transitonal Authority.
With respect to natonhood, confict and ethics, the Const-
tuton and various legislatons have created insttutons for
managing such issues, such as the Ethics and Human Rights
Commission and the Natonal Cohesion and Integraton
Commission. On revenue collecton, Secton 29 of the County
Governments Financial Management Bill already provides
that countes may contract the Kenya Revenue Authority to
collect taxes on their behalf. In efect, neither the Consttu-
ton, nor any legislaton arising from the fulfllment of the
Fourth Schedule to date provides any role whatsoever for
PA. However, the Ofce of the President seems determined
that a refashioned PA should be retained, and is busy ap-
pointng its own regional coordinators. It is however not
clear what these ofcers will be coordinatng, as the bulk
of county development interventons are likely to fall under
the county integrated development plan (Secton 115 of the
Devolved Government Act). Given that the coordinators will
not be responsible for CG initatves, it is strange that Ofce
of the President contnues to be nostalgic about yesterdays
almighty PA which under the new dispensaton will have no
powers over wananchi.
A further concern with PA had been that its personnel at the
grassroots level had poor qualifcatons, ofen drawn from the
pool of modestly educated Administraton Police who were
promoted to jobs with high levels of responsibility. Yet, the
perceived role of the Governor is one of a highly qualifed and
experienced individual with the personal authority and expe-
rience to control a highly motvated CEC, a functon unsuited
even for senior PA ofcers, such as the District Commissioner.
Related to CECs functons, the Consttuton does not ofer de-
tails on the commitees employees. Artcle 179 only provides
that the Governor shall employ CEC members, with clause (3)
providing for a maximum 10 employees. Given the average
size of the pre-2008 cabinet (of at least 30 ministries), it was
not clear how the sectoral work not falling under the permit-
ted 10 ofcers would be delivered.
The FGD partcipants rooted for diverse optons for eligibil-
ity for CEC positons, the over-riding concern being to give
priority to locals. This was in fact consistent in principle with
TFDKs much more generous 70 per cent of the employees
being locals or residents. What had remained unclear at that
point was what would happen on accession of CGs, to the
multtudes of civil servants previously working (on permanent
and pensionable terms) for the central government posted to
the districts or seconded to LAs. There was a suggeston that
outgoing civil servants be held in a Public Service Commission
pool from which CGs must initally employ in the short term.
This would (i) provide contnuity of service delivery, while
(ii) giving such ofcers a chance to weigh their optons for
alternatve livelihoods. In suggestng that like the Governor, all
CEC department heads be from the county even if the other
staf were imported, some of the FGDs appealed for the
substtuton of the stringent demands on paper qualifcatons
with experience.
The Devolved Government Bill is also not defnite on all mat-
ters of CEC. Secton 13 establishes a County Public Service
Board backed by a County Chief Secretary (Secton 40). Sec-
ton 30 provides for the Governor to appoint CEC members
who must be graduates, and whose aggregate compositon
must represent the countys diversity. While Secton 41
provides for the appointment of County Principal Secretaries,
their total numbers are not mentoned; for while the secton
states that all departments shall be under such a principal
secretary, the structure of administraton is lef to the discre-
ton of CEC. Secton 62 emphasises that appointments to the
County Public Service must pay atenton to standards, values
and principles contained in Artcles 10, 27, 56 and 232 of the
Consttuton. Secton 55 of the Bill also underscores concerns
with gender equity, persons with disabilites and marginalized
peoples, as well as atenton to Chapter 6 of the Consttuton.
Importantly, all ofcers will be subjected to performance
contracts (Secton 43).
The management of individuals revenues, such as from cross-
county investments, raised concerns among partcipants who
were apparently ignorant of the tax revenue provisions of
Artcle 209. They wondered how earnings would be repatriat-
ed to their home countes. With respect to the management
of revenues, Secton 30 of the County Government Financial
Management Bill provides for the establishment of a County
Revenue Fund into which all own county revenues and other
fnancial resources will be deposited with Secton 28 provid-
ing for a Receiver of Revenues. Sectons 24 to 27 describe
the various sources of revenue for the county which must
have competently stafed revenue and budget departments
(Secton 14). Finally, Secton 29 allows countes to delegate
own-revenue collecton to KRA. The repatriaton of revenues
to home countes does not arise as in the context of taxa-
ton, one either pays the taxes specifed under Artcle 209 (1)
to the natonal government, and those under Artcle 209 (3)
to county governments, even if it is KRA that is contracted to
collect the later. In efect, therefore, devoluton does not te
individuals to some ancestral county; instead, people live, in-
vest and work wherever they are, as provided by the Consttu-
ton. The taxes due to the natonal government are paid to it
regardless of ones county of residence which will determine
which county collects the individuals county taxes.
Concern was also raised about outsiders from (other coun-
tes) exploitng a partcular countys natural resources, such
as lake fshing, or providing a citys domestc water. Again, this
refects a poor understanding of the rest of the Consttuton,
such as Artcle 39s provision of the freedom of movement
and residence anywhere in Kenya, and Artcle 40s right
to property in any part of Kenya. But further, this concern
refects the absorpton of the misinformaton spread by the
opponents of the Proposed Consttuton who had argued that
devoluton was majimbo in disguise
26
, which would require
people to return to their ancestral countes. As argued
above, there can be no outsiders: people can identfy an an-
cestral county by virtue of contnuing to live, work, invest or
own property in the original land of their ancestors. This does
not deny them the right to live, work, invest or own property
in one other, or more, countes. Under the later context, na-
tonal tax dues are paid only once per period to the natonal
government; but county tax dues are paid in each of the
countes in which such individuals have liability per tax period.
On foreigners exploitng our natural resources, Artcle 260
of the Consttuton defnes land as:
(a) the surface of the earth and the subsurface rock;
(b) any body of water on or under the surface;
(c) marine waters in the territorial sea and exclusive
economic zone; (d) natural resources completely
contained on or under the surface; and (e) the air
space above the surface.
Artcle 60 provides for its sustainable use as directed by the
Natonal Land Policy. Concerning our natural resources,
Artcle 67 establishes a Natonal Land Commission which
Artcle 62 mandates with the administraton of all public
land. These are defned as, amongst other things, all minerals
and mineral oils, government forests
27
, government game
reserves, water catchment areas, natonal parks, government
animal sanctuaries, and specially protected areas; all roads
and thoroughfares all rivers, lakes and other water bodies
the territorial sea, the exclusive economic zone and the sea
bed; the contnental shelf; all land between the high and low
water marks. Efectvely, then, individual countes will not
own the foregoing categories of public land, even if they will
hold other categories in trust, as provided by Artcle 62 (1) (a),
(c), (d) and (e).
A further issue needing clarifcaton was the fate of decen-
tralized funds, such as CDF and LATF, about which the FGDs
were highly divided. Partcipants acknowledged both their
usefulness for grassroots interventons, and their non-
transparent management. For example, CDFs problem was
seen to arise squarely from its being a fund that was designed
for the parliamentarians convenience. Proponents of their
contnuaton independent of the 15 per cent-plus grant from
Treasury simply recommended that their management be
improved. However, opponents of their contnuaton argued
that devolutons 15 per cent plus and the Equalisaton Fund,
as well as the other available grants met and even exceeded
the original objectves of decentralized funding. Partcipants
emphasized the need for the transparent management of all
funds coming to the county, with the possibility of postng
such accruals on public notce boards.
The Consttuton does not recognize any pre-existng decen-
tralised fund with Artcle 207 (1) providing for the establish-
ment of a revenue fund for each county into which shall
be paid all money raised or received by or on behalf of the
county government, except money reasonably excluded by
an Act of Parliament. While this allows the future insttuton
of other funds directed at the countes, various sectons of
the Devolved Government Bill suggest the death of decen-
tralised funds. For example, Secton 89 provides for citzen
partcipaton in policy formulaton and implementaton, and
the development of proposals and budgets. Further, Secton
113 (h) provides for a platorm unifying planning, budget-
ing, fnancing, implementaton and performance review, a
system which Secton 114 expects to harmonise development
interventons between the natonal and county governments.
Finally, Secton 115 obliges all CECs to develop plans that inte-
grate all economic, social, physical, spatal and environmental
concerns, which must be approved by CA, must be binding
to all sub-county levels, and outside which no funds may be
disbursed (emphasis added). In efect, while CDf and LATF
operated largely outside the District Development Plans, no
public development interventons under devoluton will exist
outside the Integrated County Development Plan.
In an apparent allusion to the Equalisaton Fund, one partci-
pant wondered at the defniton of marginalisaton, cauton-
ing that it was not fair to assume that all Somalis were poor.
Art 260 distnguishes marginalised communites to be of
small numbers largely excluded from the natonal socio-econ-
omy, or traditonal communites excluded by their desire to
preserve their (dying) heritage, nomadic pastoralists and geo-
graphically isolated communites. This concern with focusing
on the genuinely marginalized under the Fund underscores
the need for (vertcal and horizontal) equity to guide the
allocaton of resources. As will be elaborated below, vertcal
equity enables unequals even within the same county to
be treated appropriately unequally, while horizontal equity
ensures equals in whichever county are treated equally
28
.
Such equal treatment of equals in whichever county has the
potental of enhancing Kenyanness.
Questons were raised about the nominatons of parliamen-
tarians and CA members, refectng ignorance of Artcles 97
(1), 98 (1) and 177. Under the old consttuton, the Presidents
originally exclusive right to nominate was eventually shared
with parliamentary partes. The same partes also provided
their nominees for LA councilors. Under the Consttuton
(2010), however, nominatons will be based on party lists
provided for by Artcle 90 (2). The requirement is that each
partcipatng party should provide a list of all persons who
would stand elected if the party were to be enttled to all the
seats provided under the foregoing artcles. The artcle also
requires the listng of candidates to alternate between males
and females, with members refectng the regional and ethnic
face of the county. Nominees to Parliament will number
12,and will represent the interests of the youth, people with
disabilites and workers. For CAs whose total membership is
indeterminate, Artcle 177 (b) provides for as many special
members as are necessary to ensure that no gender accounts
for more than two-thirds of the Assembly. In interpretng
the afrmatve acton antcipated by Artcle 177 (c), Secton
7 (c) of the Devolved Government Bill provides six CA seats
for marginalized groups, with the secton also requiring that
occupants of the special seats together should refect the
regional and cultural diversity of the county.
Further, concern was raised with the failure to include an
Ombudsman, presumably to contnue the work of the Ofce
of Public Complaints Standing Commitee. Presumably, the
ofce of the same name will contnue its work under the Ke-
nyan Natonal Human Rights and Equality Commission (Artcle
59), assisted by the newly created Ethics and Ant-Corrupton
Commission.
The FGDs also noted the issues raised about the well-ventlat-
ed topics of gender balance, gay marriages, aborton, Kadhis
Courts and the place of internatonal law vis a vis Kenyan
sovereignty. The queston relatng to gender balance in public
employment wondered why religious balance was ignored.
The focus on gender obviously recognizes womens tradi-
tonal margnalisaton despite their accountng for a compet-
tve share of the natonal and any sub-natonal populatons,
the 2009 Census placing their share at 51 per cent. Further,
research shows the greater welfare benefts to households in
general, and children specifcally, of exploitng womens po-
tental
29
. For religion, the balance is not as compettve with
Muslims consttutng less than 10 per cent of the populaton,
largely concentrated in north-eastern and coastal Kenya.
Further, a partcipant inquired why Kadhis Courts were speci-
fed in the Consttuton, but not courts for other religions,
such as Christanity and Hinduism. The most signifcant
pointhere is that Kenyan law is modelled on the Britsh law,
which has its roots in the Judeo-Christan traditon, mean-
ing that our courts already have a very strong Christan bias.
While defning the subordinate courts, among which the
Kadhis courts fall, Artcle 169 (d) does allow Parliament to es-
tablish any other courts that are deemed necessary. Further,
Artcle 170 (5) limits the Kadhis courts to the determinaton
of questons of Muslim law relatng to personal status, mar-
riage, divorce or inheritance in proceedings in which all the
partes profess the Muslim religion and submit to the jurisdic-
ton of the Kadhis courts.
The provision that all internatonal treates and conventons
to which Kenya has acceded promptly become enforceable in
Kenya also drew concerns, seen by dissenters as an avenue
through which practces such as gay marriages, would fnd a
foothold in Kenya. Yet, this anchoring of the Kenyan consttu-
ton to internatonal law is considered an inherent safeguard
against government excesses vis a vis respect for the Bill of
Rights, which Kenyans are too familiar with, or government
inacton in the face of threats to rights, as was evident dur-
ing the 2007/08 violence
30
. Thus Artcle 2 (5) declares (T)
he general rules of internatonal law shall form part of the
law of Kenya with clause (6) declaring that (A)ny treaty
or conventon ratfed by Kenya shall form part of the law
of Kenya under this Consttuton. Artcle 132 mandates the
President to report to Parliament on the countrys commit-
ment to internatonal laws, with Artcle 145 providing breach
of internatonal law as one ground for impeaching the Presi-
dent. The Deputy President and cabinet secretaries may also
be punished on the same grounds, as provided by Artcles 150
and 151.Thus, commitng the Consttuton to internatonal
has a silver lining, even if indeed this could be the avenue
through which foreign values may enter Kenya. As for foreign
values, such as gay rights, these surely fall into the domain of
inalienable personal choice, as do such other foreign values as
wearing blonde hair extensions, or supportng Barcelona FC
instead of Sofapaka FC.
Finally, there was a demand that the the scrapping of all out-
dated laws to enable their replacement with new laws should
follow the accession of the new consttuton.
Such a wholesale scrapping of natonal laws is however,
impractcal since these give life to the contnuing state. But,
it is also unnecessary since the Kenya Law Reform Secretariat
is working on just such a task. In any case, the purpose of
the Fifh Schedule of the Consttuton is to ensure within fve
years at most that legislaton relevant for operatonalising the
Consttuton is in place. TFDKs producton of the six devolu-
ton-related bills is just one realisaton of this objectve.
6.3 Generatng Revenue under Devoluton
Artcle 209 addresses the division of the core revenue sources
between the natonal and county governments, giving the
cream of the sources the direct taxes to the natonal level.
A study of the Kenyan politcal economy is a study of historical
injustces underlying the inequitable public resource alloca-
ton picture presented in Chart 3.1 greatly contributng to
the socio-economic inequalites refected in Figure 3.2. The
drafers of the Consttuton were very conscious of this history
of injustces in adoptng equity, justce, as an underlying prin-
ciple. As early as Artcle 6 (3), the Consttuton declares that
all natonal state organs shall ensure reasonable access to its
services in all parts of the Republic, so far as is appropriate to
do so having regard to the nature of the service(emphasis
added). Artcle 10 (2) returns to the same theme in including
among the natonal values and principles, sharing and devolu-
ton, equity, social justce, inclusiveness, non-discriminaton
and protecton of the marginalised, amongst other related
ideals. Given the agro-ecological inequalites refected in Table
3.1, it is only proper that the country maximizes natonal
revenue by leaving the sources of greatest revenue potental
at this point in history in the hands of the natonal govern-
ment. This is because it has comparatve advantage (over CGs)
in revenue collecton at this point in history. Further, it may be
beter placed to ensure the equitable distributon of revenues
than would the wealthier countes in which greater resources
and therefore revenue are produced. In other words, if
each county collected all revenues within its boundaries, it is
unimaginable that the richer countes would willingly share
their greater revenues with the poorer countes, the resultng
inequality undermining the development of the naton-state.
As alluded to in sub-sectons above, the FGDs refected
misconceptons on the implicatons of devoluton for the
management of business incomes and consequent taxaton li-
abilites. Such misconceptons would seem to have grown out
of a misinformaton that under devoluton, Kenyans would be
repatriated to ancestral/home countes to which they would
owe exclusive fscal allegiance, regardless of where they ex-
ploited their livelihoods. As noted before, this myth had been
fuelled by those intentonally or inadvertently equatng de-
voluton to the ethnicised majimboism of the independence
consttuton. However, as underscored above, Artcles 39 and
40 in the Bill of Rights guarantee the freedom of Kenyans to
live and work anywhere in the Republic, regardless of their
ancestral countes. In consequence, the fear among FGD par-
tcipants of double taxaton or the risk of failing to repatriate
earnings and taxes does not arise.
On tax collecton, reforms at the Kenya Revenue Authority
[KRA] since the 2003 accession of the NARC government
have enabled heightened tax collecton. Natonal revenues in
relaton to spending have gone from a Kshs 12 billion defcit
in 2002 to a Kshs 4 billion surplus 2010. The Finance minister
announced further reforms in the pipeline during the June
8th 2011 reading of the budget, which should improve KRAs
performance. However, Kenyan development policies have fu-
elled rural-to-urban migraton, concentratng the tax revenue
potental in the major cites and towns which are largely high-
ly cosmopolitan. It is therefore logical that the main taxes be
collected most cost-efectvely at the natonal level, and that
a means be devised to share revenues equitably (see Secton
6.4). TFDKs (2011) had also suggested that KRA collect the
taxes due to CGs, a preferred approach to suggestons that
this could be amongst the new roles of the highly discredited
PA, which has previously gained notoriety in similar roles
under colonialism and the harambee fundraisings champi-
oned by founding President Kenyata and his successor
31
. It is
therefore appropriate that Secton 29 of the County Govern-
ment Fiscal Management Bill provides that KRA can undertake
the revenue collecton functon, leaving no role for PA.
Having assigned the choice taxes to the natonal level,
comparatvely litle is lef to CGs, as refected in their
comparatvely shorter list of potental sources in Artcle 209
(3), and in these tax items comparatvely lower potental
returns. The FGDs suggested various additonal sources of
tax revenues for the countes, invariably requiring inital
investments to open up hitherto idle resources for exploita-
ton, such investments having hitherto been undermined
by the concentraton of development investment along the
railway line. An insight into county revenue capacites can be
gleaned for the own-revenue performance of respectve LAs,
as illustrated in Table 6.1, with details appearing in appendix
Table A6.1. The data aggregatng the performance of all LAs
under each county admitedly inconclusive for only covering
a single fnancial year [FY], show four countes to generate
own revenues greater than their respectve total spending.
Another 14 countes generate own revenues amountng to
at least 75 per cent of total spending. The weak outcomes of
countes like West Pokot, Nyamira, Mandera and Turkana are
expected; but the poor performance of lakeside countes like
Homa Bay and Siaya underscore Petersons (2001) concern
that current fnancial frameworks should be well understood
before launching the devoluton revoluton. In other words,
own revenue performance is likely to be a factor of potental
revenue size, but also of intervening factors, such as collector
motvaton and the infrastructure for collecton. How coun-
tes own-revenues perform against their respectve budgets
might also refect whether startng conditons such as weak
antcipated budgets unduly infuence considered needs and
the consequent sizes of the budgets posted.
Table 6.1: County Own-Revenue Shares of Total
Expenditure, FY 2008/09
Own revenue share of total
expenditure (%)
Countes
More than 100% Nairobi, Narok, Trans Nzoia, Uasin
Gishu
More than 75% to 100% Busia, Embu, Isiolo, Kericho, Kiambu,
Kilif, Laikipia, Machakos, Marsabit,
Mombasa, Nyeri, Samburu, Taita
Taveta, Tana River
More than 50% to 75% Baringo, Bungoma, Elgeyo Marak-
wet, Kajiado, Kakamega, Kirinyaga,
Kisii, Kisumu, Kitui, Kwale, Lamu,
Migori, Muranga, Nakuru, Nandi,
Nyandarua, Vihiga
More than 25% to 50% Bomet, Garissa, Homa Bay, Makueni,
Mandera, Nyamira, Siaya, Turkana
Up to 25% West Pokot
Source: calculated from the Annual LATF Report, FY 2008/09
The FGDs emphasised the more equitable sharing of the
benefts of existng public resources as itself being a new
source of revenues. The Embu FGD for instance cited the case
of the Kiambere Dam area on Tana River, whose residents
neither enjoy its water, nor the electricity channeled into the
natonal grid to open up the economies of distant countes
while the locals live in darkness. The FGDs also emphasized
the exploitaton of idle county resources to increase the scope
for own revenues. The largely pastoralist Garissa region for
example, pointed to the potental meat markets of the Middle
East while Bungoma talked of minerals, and Kilif of seaweed.
A recent World Bank-Kenya Country Ofce study found that
regional infrastructure diferentals adversely afect rural
poverty and. Consequently, it is important that atenton be
paid to the infrastructure diferentals such as are illustrated
in Table 6.2, which have signifcant implicatons for the rela-
tve capacites of the countes to generate own revenues, as
well as to contribute to the natonal revenue pool. It is not ac-
cidental that the own revenue performance of the countes of
the former White Highlands is good while that of for example,
the former Northern Fronter Districts is invariably dismal:
besides the prejudices of nature and colonialism, the policies
inherent in Kenyatas SP10/1965 midwifed the exacerbaton
of such inequalites.
Table 6.2: County Diferentals in Access to Selected Infrastructure
County District Poverty
rate
Piped
water
Road
density
Bitumen
cover
Bitumen
density
Good
roads
Arable
land
Baringo Koibatek 48 27 83 10 9 18.6 65
Baringo 46 33.5 15 16 2 12.6 29
Bomet Bomet 52 2.9 37 33 12 9.3 85
Bungoma Mt. Elgon 55 15.7 37 - - 7 31
Bungoma 58 32.7 56 14 8 20.8 88.9
Busia Teso 50 5.3 58 5 3 7.5 79
Busia 69 23 46 10 5 12.1 73.3
Embu Mbeere 63 23.1 37 10 4 3.6 80.8
Embu 56 60 80 9 7 5.9 65.5
Garissa Garissa 62 12.1 5 11 1 0.8 0.9
Homa Bay Homabay 72 3 44 11 5 6.5 84.2
Isiolo Isiolo 48 43.5 7 0 0 7.2 0.3
Kajiado Kajiado 44 27.3 - - - 7.5 7.7
Kakamega Butere-
Mumias
62 2 59 11 7 14.3 71.4
Lugari 64 8.1 66 - - 10.8 72.2
Kakamega 63 9.9 55 10 5 5.7 84.2
Kericho Buret 50 35.6 - - 3 19.2 79.5
Kericho 47 30.7 39 - - 16.6 80.5
Kiambu Thika 36 43.9 112 32 36 20.5 74.7
Kiambu 18 49.1 88 44 39 5.7 90.3
Kilif Malindi 64 51.5 9 18 1 11.8 55.1
Kilif 74 7.8 21 14 3 10.8 19
Kirinyaga Kirinyaga 36 31 62 17 10 11.4 79.2
Kisii Gucha 62 6.1 98 5 5 6.3 80
Kisii Central 63 19.4 74 15 11 16 78.1
Kisumu Rachuonyo 72 0.6 192 - - 11.9 51.8
Nyando 62 17 96 14 14 7.9 95.7
Kisumu 46 30.2 50 29 15 14.7 39.2
Kitui Mwingi 60 11.3 - - - 9.3 45
Kitui 71 6.1 9 4 0 12.9 40
Kwale Kwale 64 24.9 18 9 2 13.1 1.5
Laikipia Laikipia 44 28.4 11 13 1 11.2 20.5
Lamu Lamu 52 10 10 1 0 13.5 89.5
Machakos Machakos 60 6.2 28 23 7 10.8 31.6
Makueni Makueni 62 10.3 20 16 3 10.2 78.4
Mandera Mandera 65 10.7 8 - - 3.9 4.9
Marakwet Keiyo 39 10.7 63 10 6 20.4 61.4
Marakwet 42 8.4 43 - - 7.8 81.1
Marsabit Moyale 58 1 6 - - 0.4 2
Marsabit 50 21 6 - - 11.7 20.4
Meru Meru
Central
33 15.8 30 17 5 3.8 56.3
Meru
North
52 46 17 9 1 2.3 46.5
Meru
South
34 26.1 35 9 3 2.2 50.3
Migori Kuria 81 47.7 152 2 3 4.5 94.7
Suba 67 6.4 37 - - 2.6 50.2
Migori 47 0 - - - 16.6 87.2
Mombasa Mombasa 44 89.3 152 - - 14.7 0
Muranga Maragua 35 16.3 78 17 13 6.1 64.6
Muranga 29 9.1 85 19 16 9.3 63.8
Nakuru Nakuru 41 42.3 28 - - 6.8 72.8
Nandi Nandi - 3.1 59 9 5 8.3 81.5
Narok Trans Mara 59 16.4 16 2 0 17.6 53.9
Narok 52 8.9 29 - - 12 29.8
Nyamira Nyamira 68 4.6 74 8 6 16.2 91.3
Nyandarua Nyandarua 35 5 30 14 4 7.7 60.9
Nyeri Nyeri 30 73.1 39 - - 8.8 71.9
Samburu Samburu 48 13.3 7 - - 11.6 6.6
Siaya Bondo 72 23.6 28 8 2 10.2 40.4
Siaya 66 5 52 12 6 8 83.1
Taita-
Taveta
Taita-
Taveta
59 63.8 6 16 1 13.6 12
Tana River Tana River 33 4.7 2 35 1 10.9 22.9
Tharaka Tharaka 71 7.1 100 - - 0.4 49
Trans
Nzoia
Trans Nzoia 48 15 45 15 7 10.8 79.6
Turkana Turkana 61 18.9 4 16 1 14.3 32.5
Uasin
Gishu
Uasin Gishu 49 30.4 37 25 9 13 90
Vihiga Vihiga 59 11.4 142 14 21 19.2 72.7
Wajir Wajir 71 0.1 10 - - 1.8 70
West PokotWest Pokot 52 11.3 11 10 1 7.5 14.4
Source: various sources
Physical and social-economic infrastructure diferentals have
two mutually reinforcing consequences. Good infrastructure
atracts investments, which enhances the further scope
for taxaton and revenues. Conversely, poor infrastructure
discourages infows of investment while at the same tme
instgatng disinvestment. Critcally, poor infrastructure has
been associated with high rates of rural-to-urban migraton,
depletng the exportng county of the cream of its labour
force
32
. While remitances have emerged as a viable source
of domestc investments, this only applies where the host
economy is vibrant, enabling migrants to make money. For
most Kenyan migrants to the urban areas, however, their des-
tnaton is an already over-subscribed informal sector whose
average earnings consequently decline, This exposes informal
sectors operators on the fringes to the risk of falling below
the poverty line, consequently being barely able to remit
anything to their home countes.
Consequently, it is imperatve that public spending create a
context in which physical and socio-economic infrastructure
can be improved to atract surplus (underemployed) urban
labour back to the rural countes with idle potental. To this
end, the land reforms intended by Chapter Five of the Const-
tuton will be critcal, such as Artcle 60 (1)s invocaton of the
resources equitable, efcient, productve and sustainable
tenure, use and management. Artcle 66 (1)s provision that
(t)he State may regulate the use of any land, or any interest
in or right over any land... means it should now be possible
to address the persistng tendency of rich people to hold
large tracts of land for speculatve purposes. Such speculatve
holding is bad because it takes arable land out of the produc-
ton cycle, undermining the generaton of taxable revenues,
as well as producton for food security. In these respects, the
intenton is signifcant of the Equalisaton Fund to provide
basic services including water, roads, health facilites and
electricity to marginalised areas to the extent necessary to
bring the quality of those services in those areas to the level
generally enjoyed by the rest of the naton, so far as possible.
The need to balance the fnancing of these new county invest-
ment consideratons with the county provision of on-going
services underscores the importance of qualifed business
management expertse at the helm of CG. Such expertse will
be aware that infrastructure investment will also lower the
cost of delivering everyday services.
6.4 The Equitable Sharing of Revenues
CGs will have multple potental sources of revenues, viz.
Artcle 209 (2)s own-revenues, Artcle 203 (2)s 15 per cent
plus, Artcle 202 (2)s additonal conditonal or unconditonal
allocatons from the natonal government, Artcle 204s
Equalisaton Fund, and approved commercial borrowing
(Artcle 212). The scope for own-revenues has been discussed
in Secton 6.3, while that for the additonal grants remains ad
hoc, and subject to the extent to which merit is instrumental-
ised in their management.
The Equalisaton Fund is likely to be controversial because
of its conditons for eligibility, and its small size. Artcle 204
(2) declares that the fund will only be used to bring basic
services to the level generally enjoyed by the rest of the na-
ton. However, access to the named basic services is quite
divergent across countes, as illustrated in Table 6.2. Yet, the
fund is reserved for marginalized areas which is defned
in Artcle 260 to exclude a county like Kakamega with a piped
water access of 5 per cent, compared to Kiambus average 46
per cent. Indeed, the Consttuton only defnes a
marginalised group and community, not area. This suggests
the fund could be used in parts of, rather than the whole of, a
county. Whatever the geographic spending focus of the fund,
it seems too small to make much impact on the diferentals
illustrated in Table 6.2.
However, the most signifcant funding source across all coun-
tes notwithstanding their independent capacites refected
in Table 6.1 and appendix Table A6.1 is Artcle 203s 15
per cent plus. The FGDs wondered how the 15 per cent foor
was arrived at, an interestng factor that COE (2010) does
not explain. One FGD suggested the foor should be raised
to between 40 and 45 per cent, suggestng it is unfair for the
government to extract 100 per cent taxes from wananchi,
while only allowing them a 15 per cent share. Of course, this
argument ignores the fscal implicatons of the division of
labour role assignaton between the natonal government
and CGs refected in the Fourth Schedule. It also ignores the
fact that the natonal government must reserve natonal rev-
enue resources for pre-determined obligatons, including the
natonal debt, the Consolidated Fund expenditures and public
service salaries.
However, the FGDs felt strongly that for the equity to be real-
ized, the government should undertake a baseline for each
county, against which need would be gauged. This baseline
would provide some indicaton of respectve countes readi-
ness to assume control under devoluton meaning that the
roll out would be staggered. Some FGD partcipants also de-
manded that consideraton should be taken of past injustces
in sharing public resources, which would lead to a compensa-
tory component in the allocatons to previously disadvan-
taged countes. Finally, the FGDs expressed apprehension
that sub-county service delivery levels could sufer the same
tyranny the district sector heads sufered at the hands of min-
istries, resultng in erratc funding fows. Consequently, they
proposed that sub-county funding fows should be mandated
along the lines of Artcle 203 and 219.
A further idea was for CRA to consider the comparatve coun-
ty potentals to atract direct investment and borrowing. This
capacity would be factored into allocatons, to the advantage
of the objectvely determined weaker performers in the form
of afrmatve acton. In efect, countes that had over the
independence years been favoured with good infrastructure
would have a head start over the rest in atractng indigenous
and outsider private investors, a factor which should be re-
fected in comparatve allocatons. It was further pointed out
that parochial concerns could infuence the paterns of poten-
tal investment, such as northern Kenya atractng Middle East
investors in the name of religion. Indeed, it was noted that
the constructon and other business booms ascribed to the
Somali community could probably be the case of Mogadishu
investors feeing insecurity, and fnding a haven in Nairobi. In
terms of borrowing, the more developed countes will have a
vast head start on other countes that cannot even consider
this opton, such as those of the arid and semi-arid lands.
As noted in Secton 6.2, CDF was the bone of much conten-
ton with some arguing against its contnuaton as a stand-
alone fund, while others argued for its contnuaton as such.
The same concerns were expressed about all the other
decentralized funds, such as LATF and RMLF. On the balance,
the percepton was that the partcipatory essence of devolu-
ton substtutes for the need for ad hoc decentralized funding.
Indeed, the aboliton of such funds would be consistent with
TFDKs (2011) proposal of an Integrated County Development
Plan from which any fnanciers would have to draw projects
for implementaton. Further, as noted above, Secton 115 of
the Devolved Government Bill requires that countes have CA-
approved integrated plans that bind upwards to the natonal
level and downwards to the sub-county level, without which
no resources will be disbursed from the County Revenue
Fund.
The foregoing concerns in allocatng Artcle 203s resources
show the way forward for CRA in two respects. Firstly, the
countes will need a lot more money than the (at least) 15.5
per cent implied by Artcles 203, 204, 209 and 212, which is
why provision is made for further non-specifc grants (Artcle
202). Instead of this patchwork of funding, and especially in
order to enhance efciency in managing the funds, given like-
ly county capacity constraints, it might be more efcacious to
basket fund the county Treasury, having taken cognizance of
the likely resource needs for bringing all countes to a level of
development generally enjoyed by all others. Indeed, as Sec-
ton 20 of the County Government Financial Management Bill
declares, funds must match and follow functons. Secondly,
these concerns point CRA to a formula-based allocaton of re-
sources across the countes, based on the equity principle of
treatng equals equally, and unequals appropriately unequally.
In this respect, the CDF experience provides a poignant lesson
on how not to share out the money: the CDF formula merely
deepened regional development inequalites rather than
narrowing them, by sharing 75 per cent of the fund equally
across all 210 consttuencies, and only 25 per cent equitably.
For justce to be upheld, the share allocated equitably should
have been greater than that allocated equally.
While equity underlies many consttutonal concerns, it has
not been elaborated on. Specifcally for resource alloca-
ton, there are many lessons to be gleaned from the health
economics literature which emphasizes both vertcal equity
treatng unequals appropriately unequally and horizon-
tal equity which treats equals equally. The atainment of
absolute fairness within a populaton requires a focus on
the conditons of individuals in the (natonal) populaton.
Since this is not practcable, the next-best opton is to focus
on the smallest feasible group of individuals and/or house-
holds, an approach referred to as small area analysis. Under
the UKs Natonal Health Service, for example, small area
analysis focuses resource allocaton need and delivery on
the postcode (area). Vertcal equity is aspired to by treatng
unequals within the small area appropriately unequally, while
horizontal equity is strived for by treatng equals within the
small areas equally. Aggregatng allocatons to such small area
within a region determines the total allocaton for the region.
To date, poverty analysis in Kenya has focused on the district
and consttuency, with some basic analysis at the locaton
level. However, these units remain too large for efectve
small area analysis. Kenyas last household welfare analysis
was the Kenya Integrated Household Budget Survey 2005/06.
Some household status data was also collected during the
controversial 2009 natonal census
33
. Since these data are
inappropriate for one reason or another for a current small
area analysis, the government would do well to undertake a
new household welfare survey based on small areas, such as
the wards provided for by Secton 44 of the Devolved Gov-
ernment Bill. Estmates of need and service delivery would
then be based on the ward, and then aggregated upwards to
establish a countys total allocaton. Basing allocatons on the
ward would enable the accurate estmaton of the resource
needs for delivering the basic services guaranteed by the Bill
of Rights, notably health care, food, educaton, housing and
safe water (Artcle 43). Ward-based small area analysis would
also facilitate atenton to the needs of children (Artcle 53),
persons with disabilites (Artcle 54), minorites and the mar-
ginalized (Artcle 56) and older people (Artcle 57). Indeed,
the approach would also enable the efectve operatonalisa-
ton of the Equalisaton Fund.
In order to undertake the foregoing concerns, Artcle 215 of
the Consttuton establishes CRA which oversees the equi-
table sharing of natonal revenues between the natonal and
county governments, and among CGs (Artcles 202 and 203).
The equitable share for countes is deposited alongside any
other county fnancial resources in the County Revenue
Fund created by Secton 28 of the County Government Fiscal
Management Bill. As provided by Secton 16 of the Inter-
Governmental Fiscal Relatons Bill, CRAs recommendatons
on the sharing of natonal revenues is discussed in, amongst
other fora, the Inter-government Budget Council established
under Secton 4 of the same bill. This role of CRA somewhat
duplicates, but certainly augments, the functons of the Tran-
siton Authority enumerated at Secton 9 of the Transiton to
Devolved Government Bill.
6.5 Contradictons between the New and Old Systems
The Local Government Act will stand repealed afer the frst
electons under the New Consttuton that will usher in the
new devolved system of governance. This implies that there
will no longer be Local Authorites. However, the current LA
councilors wards will likely be the basis for the new wards
under devoluton, even though Secton 28 of the Devolved
Government Bill provides a baseline of 25 wards. The other
two controversial areas of the debate between the old and
new dispensaton have been touched on above, the Provincial
Administraton [PA] and decentralized funds. A key problem
for PA is its baggage, notwithstanding FGD suggestons that its
lower ranks are and have been the most efcient in resolv-
ing community-based issues, as well as managing broader
security issues. However, some FGD partcipants lamented the
low levels of educaton of the PA, many of whom they alleged
had been promoted from the ranks of the Administraton
Police. That such a background in the uniformed cadre would
dispose such ofcers to taking orders, rather than addressing
issues objectvely is not a characteristc of the lowest ranks
alone: all PA ofcers undertake paramilitary training, which is
rooted in taking and carrying out orders. This role of PA during
colonialism and the Kenyata and Moi years had led to NARCs
2002-electon manifesto undertaking to disband the PA on at-
tainment of power. However, the PAs salvaton came from the
fact that key Kibaki advisors had been in PA operatves and
knew of its potental for containing politcal rebellion.
However, PA ofcers are also not suited to the business envi-
ronment envisaged for devoluton. Their oversight of substan-
tal resources for harambee, the District Development Com-
mitee and famine relief, was subjected to litle or no scrutny,
causing such resources to ofen disappear. Furthermore, PAs
para-military fundaments of unquestoned commands from
the Ofce of the President down to the grassroots would
be inconsistent with an underlying objectve of the Consttu-
ton to increase grassroots partcipaton in designing and
implementng development. In any case, it is necessary that
individuals ofering themselves for county positons be more
mature and to have a more varied work experience.
Nonetheless, the FGD feeling was that the chiefs and their
assistants should be retained, but be popularly elected, rather
than being appointed by individuals who consequently de-
mand for allegiance. Along the same security concerns, it was
not clear how the Governor would relate to the police, which
was previously under a security meetng chaired by the PA at
all levels. In these respects, Sectons 46 to 49 of the Devolved
Government Bill provides for a hierarchy of sub-county civil
servant administrators cascading to the fve village elders at
the base. On PAs previous co-ordinaton of security issues,
Secton 35 of the Devolved Government Bill provides that the
Governor will chair county security arrangements, in line with
Artcle 239 (5) of the Consttuton, which requires the natonal
security apparatus to operate under civilian authority.
Besides prospectve governors having basic university educa-
ton and business experience, the FGDs felt that the candi-
dates should be natves of the county and have a personal
development record of accomplishment illustratng their own
private entrepreneurial capacites. The feeling was that the
governors should hire department/sector heads from within
the county even if the rest of the personnel will come from
elsewhere, to ensure allegiance to the plight of the county.
Yet, Kenyas experience with corrupton shows that parochial
loyaltes fare badly in the face of fnancial and other tempta-
tons. One suggeston was the recruitment of CEC members
from a natonal Public Service Commission [PSC] pool of
former civil servants and another that the governors pro-
pose candidates to the PSC for vetng and absorpton. The
maximum CEC membership imposed by Artcle 179 (3) means
that CGs could rely on consultants for some aspects of service
delivery. Alternatvely, incisive governors could collaborate
strategically across countes to ensure they jointly have an ad-
equate stock of profled specialists. Given the resources that
are likely to fow through CEC members hands compared to
amounts such ofcers handled as civil servants it is neces-
sary to provide them with an adequate remuneraton package
to ensure diligence. Some civil servants grumbled at the fact
that the teachers future had been secured through the inclu-
sion of their service commission employer in the Consttuton
(Artcle 237).
On the consttuton of the county public service, Sectons 54
and 55 of the Devolved Government Bill provide for the es-
tablishment of a County Public Service Board of professionals
recruited compettvely, with the good governance provisions
of the Consttutons Chapter 6 given due weight. The Bill pro-
vides that the Board may create ofces (Secton 57) or abolish
them (Secton 58), and make appointments (Secton 60)
afer widely publicising vacancies (Secton 63). The bill also
establishes the County Public Service Advisory Authority the
Advisory Authority (Secton 84) which is mandated to oversee
the espousal of natonal values of Artcles 10 and 232 of the
Consttuton in the management of county public services,
and to report annually on the same to the Senate. These
measures provide a framework for the objectve recruitment
of county public services.
Concern was also expressed over co-ordinaton between
the natonal and county governments, and across CGs and
urban areas, as well as over transitonal issues. Secton 9 of
the Inter-Governmental Relatons Bill creates a Council of
County Governors whose representatves sit on the Natonal
and County Governments Co-ordinatng Council created by
Secton 5 of the same bill, chaired by the President. These
arrangements will enable resoluton of natonal-county, as
well as county-county conficts. Secton 4 of the Transiton
to Devolved Government Bill provides for an eight-member
County Transiton Authority headed by an individual quali-
fed to be a judge of the Supreme Court (Secton 6). Secton
10 of the same bill provides that the Authority will audit
the prospectve capacites of county governance during the
period to the frst electon under the New Consttuton. It will
subsequently oversee the transfer of functons to CG over a
three-year period afer the frst electon. Secton 46 of the
Urban Areas and Cites Bill also provides for an Inter-Urban
and Cites Forum.
Finally, Secton 129 of the Devolved Government Bill allows
for shared services between the natonal and county govern-
ments, across countes, as well as private/public partnerships.
Similarly, Secton 42 of the Urban Areas and Cites Bill allows
for collaboraton across urban authorites. Besides the various
platorms mentoned above for the resoluton of disputes
across the various boundaries, such as the Council of County
Governors, Secton 21 of the Inter-Governmental Relatons Bill
establishes an ad hoc Inter-Governmental Disputes Resoluton
Tribunal whose fndings can be challenged up to the Supreme
Court and in the Senate, should litgants fnd this necessary.
6.6 Management of Shared and Exclusive
Natural Resources
The critcal issue in the management of shared resources is
the context provided by Chapter Five of the Consttuton on
Land and Environment, which the FGDs were not aware of.
As discussed in Secton 6.2 of this paper, Artcle 60 provides
the principles for managing land to include equity, security of
rights, sustainability and productvity, amongst other aspects,
while Artcle 61 classifes land as either, public, community or
private. In the context of the issues raised in the FGDs, land
includes earth, water body and natural resources, the later
being defned as the physical non-human factors and compo-
nents, whether renewable or non-renewable. The distnc-
tons between public, community and private land are further
provided in Artcles 62 to 64. The percepton during the FGDs
was that these distnctons do not exist, meaning that all land
within a county belonged exclusively to that county; hence
the Embu FGD complaint about the lack of access to Kiambere
Dam resources. However, the demand for a quid pro quo over
the waters, or the suggestons elsewhere that countes should
have the frst opton over home-based resources seems both
unsustainable in general and unconsttutonal.
However, an example has been set in returning revenues from
wildlife to the hostng LAs, which explains the own revenue
performances of the likes of Narok and Samburu in Table
6.1(see annex). Consequently, it is understandable that other
countes would look at any of their natural resources in the
same way that wildlife has been considered in some host-
ing countes. Of course, the good revenues from the wildlife
might be a refecton of the good management of revenue
collecton and remitance by the Kenya Wildlife Services,
rather than the commodity itself. It might well be that if
existng revenue collecton was to be improved in some of the
other countes, their own revenues could also rise substan-
tally. However, there are reasons for some grievance over
land, arguably: fertle Kitales agriculture incomes belong
to individual landowners; yet, arid Kituis coal yields belong
to the state. This inconsistency provides an even stronger
ground for collectng the main taxes natonally and sharing
their revenues equitably.
However, the FGDs agreed on the need for countes to
develop memoranda of understanding amongst themselves
to guide their mutual exploitaton of shared or exclusive
resources. Such a measure could be among those under-
taken in the context of the Integrated County Development
Plans, as well as the Inter-Governmental Relatons Bill, these
frameworks also facilitatng the shared personnel proposed in
Secton 6.5 of this paper. The FGDs also felt that in providing
livelihood and improving county-based resources, the county
governments focus should initally be on the home county
before moving outwards, even if only in terms of providing
such hostng countes youths with employment. This would
reduce the extent to which a host county feels it is losing out
on its natural resource endowment to outsiders.
6.7 Citzen Partcipaton and Oversight
Among the governance values and principles provided in
Artcle 10 (2) of the Consttuton are sharing and devolu-
ton of power, democracy and partcipaton of the people,
inclusiveness, and transparency and accountability. Pursued
to their logical conclusions, these provisions should ensure
citzen partcipaton, which however, invariably sits uncom-
fortably with the elite. The FGD partcipants were however,
keen on the insttuton of efectve partcipaton and oversight
frameworks and made several suggestons towards that end.
Several FGDs mentoned safe whistle blowing as a means
of deterring mismanagement of public fnances. Kenya has
enacted the Witness Protecton Act, but has not fully opera-
tonalised it, meaning that whistle blowers in major crimes
might remain at risk. However, the FGDs supported the es-
tablishment of frameworks that provide capacites for whistle
blowers to operate. The FGDs also recommended some
recogniton for whistleblowers, such as material rewards,
which would induce more people into the practce. However,
conclusive acton against suspects would also vindicate the
risk taken by citzens in identfying culprits, a conclusion that
has been sorely lacking hitherto, deterring further whistle
blowing
34
.
Several artcles in the Consttuton provide the framework
within which to regulate public fnances and the procurement
of goods and services. These are, Artcles 226, 227, 228 and
229. These provisions are to be read alongside related legisla-
ton, including the Government Financial Management Act,
the Fiscal Management Act, the Public Procurement and Dis-
posal Act, the Public Ofcers Ethics Act, the Ant-Corrupton
and Economic Crimes Act and the Public Audit Act, amongst
various others. Citzens need some familiarity with the provi-
sions in these pieces of legislaton if they are to recognize
indiscretons as they arise.
Meanwhile, investment in capacity building is imperatve; and
various initatves have been undertaken with varying out-
comes. Organisatons like the Natonal Tax Payers Associaton,
the Kenya Alliance of Resident Associatons and the Africa
Centre for Open Governance are just a few among the many
such organizatons which have generated
people-friendly publicatons elaboratng on the oversight
frameworks above, as well as the efects of their invocaton.
More such work needs to be undertaken, with the focus
shifing decidedly to the sub-county level where the indiscre-
tons are likely to shif to in the era of devoluton. Insttutons
like KACC and the Kenya Natonal Human Rights and Equality
Commission should similarly decentralise to be near to the
citzens. Grassroots organizatons should be trained in the use
of citzen audits and the development of citzen scorecards.
This would require other training enabling such grassroots
organizatons to understand the whole development plan-
ning, budgetng and implementaton cycle so as to monitor
the work of the CEC ofcers.
Specifcally, the FGDs argued that corrupton had acquired
a cultural status in Kenya and must therefore be addressed
from an early age. They pointed out the need for the issue
to be incorporated in early educaton curricula. They also
lauded the proposed local recruitment of CG ofcers, arguing
that this would promote accountable use of public resources.
These measures could be greatly strengthened through the
enactment of the Freedom of Informaton Bill, which would
enhance access to public informaton on fnances and other
public resources that are susceptble to missmanagement.
A good example is the manner in which budgets and budget
fows in Uganda are posted on the notce boards outside the
ofces of the receiving insttutons.
One FGD suggested legislaton for mandatory citzen partci-
paton. However, partcipaton that transforms into a burden
for citzens is unlikely to achieve desired outcomes. Some
FGDs also objected to on-going initatves by urban-based
professionals whose objectves are to produce a development
strategy for respectve countes. One way of enhancing volun-
tary partcipaton is by involving the citzens in the develop-
ment of their own strategic plans, which should incorporate a
people-friendly monitoring and evaluaton [M&E] framework.
Already, the Local Authority Service Delivery Acton Plan pro-
vides a very elaborate framework for such partcipatory plan-
ning and strategizing, which has however, not been deployed
efectvely. People also look to their faith leaders extensively
for guidance, as was evident in the 2005 and 2010 referenda
on the Proposed Consttuton. TFDG (2011) has already
proposed the Integrated County Development Plan whose
producton could be include an M&E framework based on an
annual work plan, which the democratcally elected citzen
oversight commitees proposed by the FGDs could employ in
keeping CECs and CAs accountable. This would be in line with
Artcle 183 (3)s requirement that, CECs provide CAs with full
and regular reports on maters relatng to the county.
Along these lines, Part X of the Devolved Government Bill
is devoted wholly to civic educaton in CGs. The objectve is
to have an informed citzenry that actvely partcipates in
governance afairs of the society on the basis of enhanced
knowledge, understanding and ownership of the Consttu-
ton (Secton 107 (1). As show in Figure 5.1, each of the four
levels of county governance will have its own civic educaton
commitee. Further, Part VIII of the Bill is devoted to citzen
partcipaton, with Secton 94 requiring CGs to facilitate
necessary structures including: informaton communicaton
technology based platorms; town hall meetngs; and budget
validaton. Others include: notce boards (announcing jobs,
appointments, procurement, awards and other important
announcements of public interest); development project
sites; or avenues for the partcipaton of peoples representa-
tves including but not limited to members of the natonal
assembly and senate. Secton 95 requires the establishment
of Citzen Partcipaton Forums at all CG levels whose outputs
the Governor shall report to CA (Secton 98). While the Bill
provides multple avenues for citzen partcipaton, it is impor-
tant that these are well mapped against need, to deter them
from becoming an impediment to other actvites.
7. Conclusions and the Way Forward
Besides curtailing presidental powers, the Consttuton also
raised the profle of Parliament to which many of the powers
previously vested in the President have been transferred.
Thus, hopefully, the new bi-cameral Parliament will revert to
its traditonal functons of legislaton, and oversight of public
fnances. Finally, the Consttuton has provided the basis for a
truly independent Judiciary whose performance will be critcal
for stemming impunity at all levels of the government. This
development is very signifcant for the success of devoluton
in that the new judicial framework should be able to punish
without fear or favour, deterring misappropriaton of public
resources. To this end, it will be important for the government
to bring to some closure maters surrounding the instances of
mega-corrupton, such as Goldenberg and Anglo-Leasing, as
the contnued inacton on such past crimes perpetuates the
culture of impunity.
On devoluton specifcally, the COE the 47 consttutonally
legitmate districts into countes and provided a channel
through which to review boundaries. Critcally for equal op-
portunites for development, devoluton provisions require an
independent CRA to equitably share revenues between the
natonal and sub-natonal levels, with the laters dues being
dispatched without delay. The Consttuton also recognises
the existence of marginalized areas, even if the resultng
Equalisaton Fund is rather modest, and also provides for
grants from Treasury and for loans guaranteed by Treasury.
An elected Governor will be at the centre of the operatons of
the CG, which will work in tandem with its CA, while having
a senator as a liaison with Senate. The Governor will also
employ individuals to the CEC using modalites specifed in
various proposed legislatons.
It is signifcant that legislaton governing CRA and urban
areas and cites have been enacted. Various other legal and
insttutonal instruments also await fnalizaton, including fve
devoluton bills by the TFDG. In this respect, it is important
that the Transiton to Devolved Government Bill be enacted to
enable the establishment of the County Transiton Authority
(Secton 4) which will then determine the current resource
status of each county and its consequent readiness to assume
the roles atendant on devoluton (Secton 9). Meanwhile,
government departments, such as the Directorate of Person-
nel Management and the Kenya Insttute of Administraton,
are busy preparing syllabi for the training of county managers.
An underlying governance problem in Kenya undermining
the emergence of a cohesive naton-state has been impunity
by successive presidents. Kenya now has a New Consttuton,
which respected analysts have described as being exemplary
when compared to other consttutons across the contnent.
Various events in the recent past point to a hopeful future for
Kenya in respect to the issues discussed in Chapter Six of the
Consttuton on leadership and integrity. The FGDs conducted
for this study however, indicated that there was limited un-
derstanding of the Consttuton by the public. .
Kenyans and indeed, people all over the world can never
be equal. However, the literature on equity argues convinc-
ingly that authorites are obliged to provide equal opportuni-
tes for ataining optmal self-actualisaton and development.
Thus, Kenyas independence development blue-print, SP
10/1965, in spite of its rhetoric on equality, set the country
of on the wrong path in advocatng preferental treatment
for the parts of the country which had the greatest absorp-
tve capacity precisely because these had been favoured by
colonial socio-economic and physical infrastructure invest-
ments. This policy had the efect of laying the foundatons for
the inequalites and much of the poverty that had led to the
simmering politcal tensions culminatng in the unfortunate
events in the wake of the mismanaged 2007 general elec-
tons.
At a general level, the Consttuton has made great strides
against impunity by curtailing the basis of the countrys hith-
erto imperial presidency, which had been enttled to make
unilateral but critcal natonal decisions. Parochial decisions
fuelled patron-client relatons, which undermined the checks
and balances inherent in the principle of the separaton of
powers that had underlain the old Consttuton. In that con-
text, Parliament increasingly abandoned its functons of legis-
laton and oversight of the generaton and spending of public
revenue. Increasingly, parliamentarians became development
ofcers in search of harambee funds for the constructon
of the most mundane of projects, such as churches or catle
dips. The emasculaton of Parliament also undermined people
partcipaton in development. Despite the cosmetc reforms
allowed by successive presidents since 1991, socio-economic
development dithered in most parts of the country alongside
the emergence of extensive mismanagement of available
public fnances. Demands for devoluton therefore persisted
as a possible means for reclaiming peoples partcipaton in
governance.
In terms of the way forward for civil society, there are two di-
rectons of engagement: upwards with the legislatve process;
and downwards with wananchi.
It is likely that Parliament will hasten the passage of the
devoluton bills, meaning any inputs into that process should
be fast-tracked. Thus, it might be necessary to assume the
bills refect the outputs of the TFDGs deliberatons with
wananchi, diminishing the need for further consultatons with
them. With respect to the upwards engagement, the fag has
been raised by the dispute between Treasury and TFDG on
the revenue split between the natonal and county levels, and
Treasurys covert atempt to retain control of budget funds.
This suggests the need for civil society to sponsor urgent
deliberatons to ensure that opportunites provided by the
Consttuton and devoluton bills are not lost. Consequently,
civil society should:
Review devoluton bills to improve on the content
Identfy individual parliamentarians who can form a cau-
cus to ensure that popular rather than elitst perceptons
on devoluton carry into law.
Prepare to take advantage of Artcles 118 and 119 of
the Consttuton, to put the peoples positon directly
before Parliament on issues of devoluton, where this is
necessary.
With respect to downwards engagement, civil society can
contribute in two important areas. These are civic educaton
and citzen partcipaton. On civic educaton, it is impor-
tant that a much more focused round is undertaken on the
Consttuton in general, and devoluton and public fnancial
management in partcular. This would enhance the capacity of
wananchi to exploit the partcipatory governance opportuni-
tes ofered by Artcles 10, 118, 174, 184, 196 and 201, and
Parts VIII and X of the Devolved Government Bill. To this end
non-state actors such as KCSSP could sponsor:
The un-packaging of the Consttuton and selected pieces
of legislaton to ensure that citzens fully understand the
provisions therein including the signifcance of those
legislatons to their lives
Training of resource persons on devoluton and gover-
nance related issues. The resource persons will then
become reference points within their communites
Media related actvites on the Consttuton, devoluton
and related governance issues
School-based compettons enhancing awareness of the
Consttuton and governance issues, such as through
compettons involving essay writng, poster paintng,
debates and quizzes
35
.
Inter-community quizzes on the Consttuton and gov-
ernance issues with Wanjiku as the partcipant. Atain-
ments should be rewarded by investments in community
amenites, such as improvements to the Community
Informaton and Documentaton Centres.
The inital focus of these outreaches could include the
following:
Politcal and socio-economic history of Kenya
Leadership and Natonal Values
Public service delivery
Equity and equality
Separaton of Powers between the Executve, Legislature
and Judiciary
Legislatons on devoluton
Taxaton and Revenue Sharing
Security Structures
Natural Resource Management
Internatonal Laws
Besides on-going educaton and capacity building, non-state
actors need to promote the capacity for citzen partcipaton.
This is especially important as the country approaches the eve
of the frst electons under the New Consttuton, which will
usher in devoluton. Thus, among the areas of focus for the
development of partcipaton capacity will include:
Registraton of voters
Interacton with politcal partes
Finalisaton of electoral boundaries (consttuencies
and wards)
Electons votng and monitoring
Nominatons into parliament and county assemblies
Development planning
Budgetng and implementaton
Auditng development interventons: whistle-blowing;
citzens report cards; etc
Legislaton both in parliament and in county assemblies

Notes
1. For example, an inter-school quiz startng from the sub-county levels upwards would disseminate much informaton at the grassroots.
The fnal stages could be televised, such as is done with Zain inter-schools challenge, and atainments appropriately rewarded with books and
school equipment.
2. The current report was commissioned as TFDK was producing its frst draf report. Since then, TFDK has not only fnalised its report, but has also
produced six bills designed to operatonalise the Consttutons Chapters 11 (Devoluton) and 12 (Public Finance). The bills include the following:
County Government Financial Management Bill, Devolved Government Bill, Inter-Government Fiscal Relatons Bill, Inter-government Relatons Bill,
Transiton to Devolved Government Bill, and Urban Areas and Cites Bill. The current report remains faithful to its original terms of reference sum-
marised in Table 2.1, but incorporates pertnent issues from the six bills.
3. Jimbo is Kiswahili for region (sing.), the ma prefx rendering the plural form.
4. The principle of equity recognises that people or regions cannot be equal. Thus, it is the responsibility of the government to provide equal oppor-
tunites which enable all peoples and regions to maximise their potental.
5. HDI compares a regions atainments in income per head, educaton enrolment and adult literacy. Scores tending towards zero (0) refect poor
welfare atainments, while those tending towards 1.00 refect good atainments. Norway had the highest global 2009 HDI score 0.938, while
Gabons score of 0.648 was highest for sub-Saharan Africa, placing it in positon 95 globally.
6. In urban areas, for example, Europeans occupied the higher ground (Milimani), the Asians lived on the middle ground, while the Africans occupied
the lower grounds towards which sewage fowed and garbage was dumped. In public transport, the races traveled frst, second and third class
respectvely.
7. Other factors also infuenced the locaton of white setlement: for example, mosquitoes (malaria) and tse tse fies (sleeping sickness) discouraged
European occupaton of the Lake Victoria region.
8. Africans of age became target labourers on European farms to enable them to earn enough money with which to pay such taxes as the poll, hut
and wife taxes.
9. Chaiken (1998) illustrates how missionary initatves overcame resource constraints in providing health care for the neglected African populaton.
10. The big tribes in KANU included Kenyatas Kikuyu people and Oginga Odingas Luo people. The small tribes included the Luhya, Kalenjins, Miji
Kenda, amongst others.
11. The policy proved quite controversial for becoming an Africanisaton scheme, which ignored the existence non-black Africans.
12. Such sources included the Industrial Development Bank, Industrial and Commercial Development Corporaton, Agriculture Finance Corporaton
and Agriculture Development Corporaton. Anecdotal informaton suggests that many of the businesses in Nairobis Central Business District
went to Muranga investors who happened to come from the then Commerce ministers home district.
13. For example, delays emerged in the fnalisaton of the annual public audit of government spending, and litle atenton was paid to the irregu-
larites unearthed by such audits.
14. Under SAPs, donors provided loans or grants on conditon that receiving countries undertake specifed public management reforms to reduce
government provisioning of goods and services.

15. Mbuguas Kibwezi research for example, established an abrupt 40% decline in the use of public health services.
16. The development of LASDAP was designed to be mandatorily partcipatory. In practce, however, partcipaton of intended benefciaries was
highly constrained. For the design of the process, see htp://www.
17. In practce, parliamentarians have perceived CDF as a substtute private source of harambee funds, notwithstanding the fact that the Funds
launch coincided with a ban on harambee fund-raising.
18. Israels 2009 HDI score of 0.872 ranks it 12th globally, while Libyas 0.755 is the highest on the African contnent and ranks it 55th globally.
19. Net enrolment refers to the share of a school-going age cohort which is in school, as opposed to the gross enrolment which includes all
children in school, whether under- or over-age.
20. The Natonal Accord that resolved the post-2007/08 violence resulted in consttutonal changes that created a prime minister whom the presi-
dent must consult on various key decisions.
21. Wanjiku was former President Mois exasperated characterizaton of the average Kenyan whose potental contributon to the comprehensive
consttutonal review process he was highly dismissive of in the face of persistent demands by oppositonists and civil society for a people-driven
review process.
22. Among the few African countries not colonized ahead of the First World War were Ethiopia and Liberia. In sub-Saharan Africa, Ghanas 1957 ac-
cession to independence opened the foodgates, with most of the countries on the contnent getng independence between 1960 and 1965.
23. The politcal decentralizaton index measures the levels of SNGs/LAs elected in free and fair electons. Administratve decentralizaton is gauged
by extent to which statutes defne roles between authorites, including the right to hire and fre, while fscal decentralizaton is refected in the
extent of certainty over fscal transfers (formula-based vs. ad hoc), and the share of natonal resources controlled by SNGs.
24. Moi unconsttutonally decreed 24 politcally identfed districts into existence. By 2010, Kibakis additonal unconsttutonal districts mapped
just about each parliamentary consttuency. It is conceivable that most parliamentarians would have demanded their consttuencies to become
countes under devoluton.
25. During the 2005 referendum on the Proposed Consttuton the Wako Draf, the presiding Electoral Commission of Kenya decided that the
symbol of support would be a banana, while that of oppositon would be an orange.
26. As noted in the Introducton and in Secton 3, the independence consttutons jimbos were ethnic enclaves designed to protect the small tribes
against being geographically over-run by the big tribes.
27. The forests exclude those held under community or ancestral tenure, or those held in trust by countes.
28. Thus, the genuinely poor Somalis will be treated like the genuinely poor Kenyans anywhere else, while the rich Somalis are treated like other rich
Kenyans everywhere.
29. The Kenya Demographic and Health Survey 2008/09 shows for example, that child mortality among mothers without complete primary
educaton was 112 per thousand compared to 86 for those who have.
30. Appendix Box 5.1 provides the internatonal laws and conventons to which Kenya is a signatory.
31. The management of harambee fund-raising was entrely ad hoc, meaning it was never clear who contributed how much, and how the money
was subsequently spent, as there was no audit of the resources.
32. The argument is that the bright city lights (amenites) atract the youth away from rural hardships.
33. Controversial because the census returns for the whole of North Eastern Province were cancelled over suspected infaton of the numbers of
people.
34. The most celebrated failure to act on whistle blowing is that of former Ethics czar, John Githongo, whose elaborate revelatons on the Anglo-
Leasing scam are well documented in Wrong (2008).
35. For example, an inter-school quiz startng from the sub-county levels upwards would disseminate much informaton at the grassroots. The fnal
stages could be televised, such as is done with Zain inter-schools challenge, and atainments appropriately rewarded with books and school
equipment.

GLOSSARY
Budgetng involves estmatng the fnancing needs of partcular interventons over a specifc tme-period, normally one year. The
process identfying the core sources of the estmated fnancing needs, as well as probable supplementary sources of fnancing.
Equity refers essentally to justce (in managing issues). Equity recognises that, for example, people cannot be equal. It therefore
calls for a treatment of people in a way that refects recogniton of their inherent inequalites of person or opportunites. Thus, for
example, afrmatve acton measures promote equity.
Human Development Index HDI is a composite, multfaceted, measure of human welfare. It is a UNDP framework for comparing
human welfare across countries and regions, and over tme. The traditonal measure of welfare was (natonal) income per head,
which was deceptve in assuming that each individual had access to that income. HDI combines an income measure with aspects of
welfare, such as life expectancy, adult literacy, gross enrolment, amongst others.
Majimbo is the plural form of the Kiswahili word, jimbo, meaning province or region. During the 1961/62 Lancaster House talks
for Kenyas independence, the KADU party successfully lobbied for the country to be divided into semi-autonomous majimbos to
ensure Kenya larger ethnic groups did not dominate the many smaller ones in natonal afairs. The independence consttuton was
consequently dubbed the Majimbo Consttuton. During the comprehensive consttutonal review (2000-2010) detractors of the
devoluton model argued it would create ethnic enclaves as at independence from which foreigners would be expelled.
Naton refers to a united people, ofen occupying a specifc area/region, but may also have been scatered while retaining a strong
sense of belonging to their roots.
Naton-state a country whose people have espoused a common identty despite belonging to diverse ethnic groups. Thus, Tanza-
nia is arguably a stronger naton-state than Kenya.
Planning this refers to the identfcaton of a strategy over a specifc tmeframe for addressing an existng problem or issue. It
involves clarifying elements of the strategy, sequencing and costng them, and developing a framework for monitoring and evaluat-
ing proposed interventons.
Policy refers to a statement of intentons with respect to managing a partcular problem or issue. A policy document contains the
identfcaton and conceptualizaton of the problem or issue, outlining of strategies for addressing the problem/issue, allocaton of
roles for the various stakeholders who might address the problem or issue. It can also address issues such as the sources of fnanc-
ing for selected interventons, the framework needs for the interventons, such as legislaton, and the inherent risks in the strategies
adopted.
State the set of instruments that create a country, and cause it to be recognized by other countries. These include the Consttu-
ton, laws, natonal fag, natonal anthem, membership to internatonal organizatons, amongst others. Ordinarily, the state does not
refer to the people.
Wananchi plural for mawananchi, the Kiswahili word for citzen
Wanjiku Frustraton at the persistent demands for a people-driven consttutonal review process, Wanjiku was former president
Mois dismissive characterizaton of the ordinary Kenyan who he argued could add no value to the review process
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APPENDICES
Apendix 1: List of FGD Partcipants
Bungoma
Daudi Saransora - District Development Ofcer, Bungoma
Crescenta Nanjala - Librarian, Webuye
Florence Lukosi - Cultural Ofcer
Anne Bwisa - Maendeleo ya Wanawake
Teresa Nyachwa - Female Representatve
Ferdinand Otemaka - Youth Representatve
Mr Opondi - ACE Africa Director
Pastor Nyongesa - Christan Representatve
Kassim Ratore - Muslim Representatve
Florence Lyambila - CACC Kanduyi
Embu
Pravin Shah
Martn Wachira
Anne Muthamia
Sicily Mureithi
Joshua Mwangi
Purity Wawira
Caroline Ngendo
Rev. Joyce Njiru
L.M. Nzioka

Garissa
Zahara al Shurie - Meandeleo ya Wanawake
Sheikh Ismaili Maalim Isaack - Young Muslims
Abdikadir Aden - Garissa Youth Environment Movement
Osman Mohamed Ali - Physically Disabled, Garissa
Khatra Iman Sigat - Maendeleo ya Wanawake, Faf
Habiba Ibrahim Adon - Garissa Youth
Keneth Ruteere - Provincial Planning Ofcer
Silas Oure - District Development Ofcer
Deputy Mayor, Garissa
Kilif
Catherine Shigoli - Coastal Fisherfolk
Bilkis Nassir - Amazon Community Integrated Project
Kalama Karima - Rafki Partcipatory Development Partners
Martha Karisa
Ezra Koi - Positve Attude Youth
Faruk Lali - Youth Alliance
Walker Mwandoto - CBO, Sokoni Ward
Lydia Kasina - Moving the Goal Post
Zarina Mwatsahu - Amazon Community Integrated Project
Simon Mwakisha
Laikipia
Joseph Ndegwa Mawnagi
Paul Leringato
Alex Nzau
Joel Kamau
Raphael Mumbiko
Clinton Maina
Harunb Njuguna
Adan N. Guracha
Helen W. Kurutu
Charles Nderitu

Muranga
Josphat Kanyingi
Ephraim Maina
Isaac Maina Manyeki
Ephraim Nderu
Thomas Njoroge Kimani
Jane Kamwaga
Michael Mwnagi
Jecinta Nganga
Purity Njuguna
George Natembya
Apendix 2: Kenyas Adherence to Internatonal Law
Box A5.1: Kenyas Adherence to Internatonal Law
Regional Conventons
1969 Conventon Governing the Specifc Aspects of Refugee Problems in Africa (Ratfed by Kenya on 23.06.92)
1977 Conventon for the Eliminaton of Mercenaries in Africa (Signature only on 17.12.03)
1981 African Charter on Human and Peoples Rights (Ratfed on 23.01.92)
1990 African Charter on the Rights and Welfare of the Child (Ratfed on 25.07.00)
1995 African Nuclear Weapon Free Zone Treaty (Ratfed on 15.11.00)
1998 Protocol to the African Charter on Human and Peoples Rights, establishing an African Court on Human and Peoples
Rights (Ratfed on 04.02.04)
1999 OAU Conventon on the Preventon and Combatng of Terrorism (Ratfed on 28.11.01)
2003 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Signature only on
17.12.03)
Internatonal Conventons/Treates
1951 Refugee Conventon (1966)
1965 Internatonal Conventon on the Eliminaton of All Forms of Racial Discriminaton (2001)
1966 Internatonal Conventon on Civil and Politcal Rights (1972)
1966 Internatonal Conventon on Economic, Social and Cultural Rights (1972)
1967 Refugee Protocol (1981)
1968 Conventon on the Non-Applicability of Statutory Limitatons to War Crimes and Crimes against Humanity (1972)
1979 Conventon on the Eliminaton of All Forms of Discriminaton against Women (1984)
1984 Conventon Against Torture and Other Cruel, Inhuman, Degrading Treatment and Punishment (1997)
1989 Conventon on the Rights of the Child (2000)
1998 ICC Rome Statute (2005)
Conventon on the rights of Persons with Disabilites (2008)
Internatonal Conventon for Protectng All Persons from Enforced Disappearance (2007)

Apendix 3: Summarised County Revenue and Expenditure Status FY 2008/2009
County Status County Status County Status County Status
Nairobi Embu Elgeyo Marak-
wet
Mandera
1 118.4% 1 75.5% 1 58.0% 1 46.4%
2 5,677,267,207 2 196,199,225 2 83,489,394 2 77,894,529
3 3,894,654,432 3 46,922,677 3 33,513,341 3 50,183,620
Kisumu Garissa Kirinyaga Samburu
1 73.8% 1 33.9% 1 63.7% 1 82.2%
2 477,132,010 2 105,436,459 2 318,631,724 2 161,229,700
3 244,594,402 3 64,051,055 3 71,188,560 3 24,692,303
Migori Kisii Kiambu Marsabit
1 68.5% 1 53.3% 1 90.7% 1 81.5%
2 218,049,746 2 291,386,457 2 843,985,874 2 64,973,847
3 141,568,593 3 132,869,506 3 339,603,626 3 44,567,756
Bomet Homa Bay Kilif Nakuru
1 47.9% 1 30.3% 1 75.8% 1 74.6%
2 78,959,729 2 187,809,533 2 362,723,512 2 835,667,374
3 41,191,699 3 73,138,450 3 160,420,740 3 332,624,616
Siaya Isiolo Trans Nzoia Mombasa
1 47.8% 1 77.6% 1 105.1% 1 84.1%
2 190,650,986 2 138,477,205 2 83,155,667 2 1,454,383,320
3 85,437,769 3 10,389,982 3 83,155,667 3 616,539,897
Bungoma Baringo Kitui Narok
1 53.1% 1 52.2% 1 57.1% 1 100.2%
2 407,019,380 2 155,173,162 2 247,771,891 2 580,964,004
3 191,391,244 3 37,336,957 3 87,210,327 3 106,468,545
Kericho Kajiado Kajiado Nyandarua
1 79.3% 1 71.9% 1 70.7% 1 64.7%
2 336,849,790 2 263,428,946 2 158,301,451 2 151,941,537
3 138,280,336 3 63,026,847 3 96,607,135 3 44,888,150
Uasin Gishu Muranga Laikipia Taita/Taveta
1 102.4% 1 73.3% 1 86.5% 1 90.9%
2 405,580,675 2 207,294,074 2 315,233,153 2 130,485,749
3 277,758,568 3 53,574,610 3 102,356,471 3 50,652,010
Busia Machakos Lamu Tana River
1 79.4% 1 96.7% 1 62.5% 1 90.3%
2 205,885,731 2 468,708,038 2 39,765,085 2 31,054,615
3 128,982,484 3 229,270,559 3 12,491,969 3 45,628,084
Kakamega Nandi Turkana Tharaka-Nithi
1 63.1% 1 55.1% 1 31.4% 1 71.7%
2 321,349,525 2 208,920,812 2 108,147,887 2 24,910,296
3 230,305,711 3 72,940,052 3 44,296,554 3 18,056,197
West Pokot Nyeri Vihiga Meru
1 23.3% 1 88.7% 1 66.3% 1 69.2%
2 128,966,479 2 320,946,582 2 74,575,155 2 349,444,421
3 74,673,475 3 155,554,344 3 31,927,549 3 216,922,280
Nyamira Makueni
1 30.7% 1 37.1%
2 84,437,895 2 188,795,983
3 56,181,934 3 54,114,951
Source: Kenya Local Authority Reform Programme
Key: 1Own revenue/total expenditure (%);
2Total Expenditure; 3Revenue surplus/defcit.
The Kenyan Civil Society Strengthening Program (KCSSP)
Act! ofces
Umeme Plaza ground foor, Old Naivasha Road
P.O. Box 76390-00508 Nairobi, Kenya
Tel: +254-20-3878271 /3 /4 | Fax: +254-20-3870775
www.kcssp.org | www.act.or.ke
Pact
Kenya Country ofce
Umeme Plaza frst foor, Old Naivasha Road
P.O. Box 76390-00508 Nairobi, Kenya
Tel: +254-20-3878271 /3 /4 | Fax: +254-20-3870775
Head Quarters
1828 L Street, N.W. Suite 300 Washington, DC 20036
Tel: 202-466-5666 | Fax: 202-466-5665
info@pactworld.org | www.pactworld.org

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