Interim Report On Devolved Government

INTERIM REPORT OF THE
TASK FORCE ON DEVOLVED

GOVERNMENT
A Report on the Implementation of Devolved
Government in Kenya

WEDNESDAY, APRIL 20, 2011

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DRAFT FINAL REPORT FOR TFDG EYES ONLY
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LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON
DEVOLVED GOVERNMENT
Task Force on Devolved Government of Kenya

Mutakha Kangu
Lucy Muthoni Kambuni
Edward A. Oyugi
Emmanuel Lubembe
Eric M. Aligula
Fatuma Ali Saman
Gichira Kibara
Hamisi Mboga
Harriet Naitore
Jelani Habib
Joash Dache
John Nguri
Joseph W. Irungu
Julius Malombe
Kasembeli W. Nasiuma
Kennedy Nyaundi
Kenneth W. Akide
Kibisu Kabatesi
Marion Muriithi
Nehemiah Ngeno
Onesimus Kipchumba
Murkomen
Patrick Karanja
Patrick O. Onyango
Pauline Nyamweya
Polycarp J.O. Ochilo
Samuel G. Karicho
Sylvester M. Osodo
Winnie V. Mitullah
Angeline Hongo
Antony Oteng Ombwayo
Pauline N. Muriithia

Wednesday, 20
th
April 2011

Prof. Karega Mutahi, CBS
Permanent Secretary and Chairman, National Steering Committee
Office of the Deputy Prime Minister and Ministry of Local Government
Task Force on Devolved Government
P.O. Box 30004-00100
Nairobi, Kenya
Dear
SUBJECT: TRANSMITTAL OF INTERIM REPORT OF THE
TASK FORCE ON DEVOLVED GOVERNMENT

Pursuant to Legal Notice No. 12876 of 25
th
October 2010 we wish to confirm
and hereby do transmit to you the Interim Report. This Interim Report
provides proposals covering, inter alia, the following issues, namely:
Operationalization of the functions of each County, consistent with the
Fourth Schedule of the Constitution;
Restructuring of the Provincial Administration;
Specifics of the County Financial Management System, including taxes
and charges to be imposed by each county;
Assistance to County governments in building their capacity to govern
effectively and provide the services for which they are responsible; and
Public communication and civic education matters relevant to devolved
government.
The Interim Report has also identified various policies, legislative and
administrative measures that must be implemented for effective
operationalization of devolved government as envisaged by the Constitution
of Kenya 2010.
We are embarking immediately on the next phase of our work. This is going
to be one of consultation and consensus building, with stakeholders, around
the proposals made as well as finalisation of the draft laws and regulations.
We shall also finalise the benchmarking of proposals made in the Interim
Report.
We thank you for your continued support
Yours faithfully,

Mutakha Kangu
Chairman
Task Force on Devolved Government in Kenya
DRAFT FINAL REPORT FOR TFDG EYES ONLY
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SIGNATURE PAGE FOR TASK FORCE MEMBERS
Mutakha Kangu Chairperson ______________________________________
Lucy Muthoni Kambuni Vice Chairperson ______________________________________
Edward A. Oyugi Member ______________________________________
Emmanuel Lubembe Member ______________________________________
Eric M. Aligula Member ______________________________________
Fatuma Ali Saman Member ______________________________________
Gichira Kibara Member ______________________________________
Hamisi Mboga - Member ______________________________________
Harriet Naitore Member ______________________________________
Jelani Habib Member ______________________________________
Joash Dache Member ______________________________________
John Nguri Member ______________________________________
Joseph W. Irungu Member ______________________________________
Julius Malombe Member ______________________________________
Kasembeli W. Nasiuma Member ______________________________________
Kennedy Nyaundi Member ______________________________________
INTERIM REPORT TFDG CONSULTATION DOCUMENT
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Kenneth W. Akide Member ______________________________________
Kibisu Kabatesi Member ______________________________________
Marion Muriithi Member ______________________________________
Nehemiah Ngeno Member ______________________________________
Onesimus Kipchumba
Murkomen
Member
______________________________________
Patrick Karanja Member ______________________________________
Patrick O. Onyango Member ______________________________________
Pauline Nyamweya Member ______________________________________
Polycarp J.O. Ochilo Member ______________________________________
Samuel G. Karicho Member ______________________________________
Sylvester M. Osodo Member ______________________________________
Winnie V. Mitullah Member ______________________________________
Pauline N. Muriithia Joint Secretary ______________________________________
Antony Oteng Ombwayo Joint Secretary ______________________________________
Angeline Hongo Joint Secretary ______________________________________

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ACKNOWLEDGEMENT
In carrying out its mandate as stipulated in Gazette Notice no 12876 of 2010, the
taskforce members benefited from the generous contributions of many individuals
and organizations.
We would like in particular thank the Office of the President, Office of the Prime
Minister, and the Hon Deputy Prime Minister and Minister for Local Government
Hon Musalia Mudavadi for giving us the opportunity to serve this country in this
crucial process of implementing the Constitution of Kenya, 2010.
The Task Force assignment successfully progressed with the financial and moral
support from many development partners and other non-government actors. We
wish to warmly recognize the generous financial support of all donors who
contributed to the basket fund.
We are particularly indebted to UNDP for providing the initial funding, coordinating
development partner support and making a deliberate effort to see to it that the Task
Force was always facilitated. We also acknowledge the support of Friedrich Ebert
Foundation and the media fraternity who supported mobilization efforts during
stakeholder consultations.
To the people of Kenya, localised in the various counties, we acknowledge with
gratitude your positive responses during the county visits. We thank you for
providing your views, without which, this Interim Report would be the lesser for it.
There are many other people and organizations that provided support,
encouragement, and ideas during the research, consultations and collection of
information for this report. It may not be possible to thank them all by name, but
their help and invaluable contribution is appreciated. This notwithstanding, the task
force is grateful to all members of the public, Civil Society Organizations (CBOs),
Private Sector practitioners, and other organized groups who have contributed
invaluable insight by providing testimonies and attending the task force public
hearings and meetings, and submitting written comments, memoranda, and/or
recommendations. All these informed our report within the limits of the constitution.
Last but not least, the Task Force would like to acknowledge the invaluable
contributions of Steering Committee, Joint Secretaries, the Secretariat, Programme
Officers, and the Research Assistants, including the Rapporteurs and Hansard
Reporters.

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TABLE OF CONTENTS
LETTER OF TRANSMITTAL OF THE INTERIM REPORT ON DEVOLVED
GOVERNMENT _________________________________________ iii
SIGNATURE PAGE FOR TASK FORCE MEMBERS __________________ iv
ACKNOWLEDGEMENT ___________________________________ vi
LIST OF ACRONYMS ____________________________________ xiii
LIST OF FIGURES _______________________________________ xvi
LIST OF TABLES _______________________________________ xvii
GLOSSARY OF TERMS ___________________________________ xviii
1 TASK FORCE MANDATE, TERMS OF REFERENCE AND THEIR
INTERPRETATION _______________________________________ 1
1.1 INTRODUCTION _______________________________________________ 1
1.2 MANDATE OF THE TASK FORCE _____________________________________ 1
1.3 THE POWERS _________________________________________________ 2
1.4 TERMS OF REFERENCE AND THEIR INTERPRETATION _______________________ 2
1.5 APPROACH TO AND SCOPE OF THE ASSIGNMENT ___________________________ 2
1.6 CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT _____________________ 5
1.7 REPORT PURPOSE ______________________________________________ 5
1.8 ORGANIZATION OF THE REPORT _____________________________________ 6
1.9 THE NEXT STEPS ______________________________________________ 7
2 CONTEXT AND PROMISE OF DEVELOPMENTAL DEVOLVED
GOVERNMENT __________________________________________ 9
2.1 INTRODUCTION _______________________________________________ 9
2.2 THE CENTRALIZED COLONIAL STATE_________________________________ 10
2.3 THE POST-INDEPENDENCE QUASI-FEDERAL SYSTEM ______________________ 11
2.4 PERPETUATION OF THE CENTRALIZED STATE ___________________________ 13
2.5 THE PROBLEM OF CENTRALIZATION _________________________________ 14
2.6 THE PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT ________________ 16
2.6.1 Building Blocks for Cooperative and Competitive Counties __________________________ 17
2.6.2 Growing and Sustaining County Cooperative Competitiveness _______________________ 19
2.6.3 Paradigm Shift in County Public Service Delivery ________________________________ 19
2.6.4 Building and Maintaining Quality Places ______________________________________ 20
2.6.5 Managing Counties for Prosperity __________________________________________ 21
2.7 CONCLUSIONS _______________________________________________ 22
2.7.1 Effective Political Parties _________________________________________________ 23
2.7.2 Leadership, Ethics and Integrity and the Constitution of Kenya 2010 ___________________ 23
2.7.3 Unity in Diversity ______________________________________________________ 26
2.7.4 Skilled Human Resources ________________________________________________ 26
2.7.5 Sustainable and Equalising Funding _________________________________________ 26
2.7.6 Citizen Participation ____________________________________________________ 26
3 CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION IN KENYA ____ 27
3.1 CONCEPT OF A CONSTITUTION _____________________________________ 27
3.2 THE CONCEPT AND THEORY OF DEVOLUTION ___________________________ 27
3.2.1 Independent Commissions as Shared Institutions ________________________________ 28
3.2.2 Independent Offices as Shared Institutions ____________________________________ 30
3.3 OPERATIONALIZATION OF SHARED INSTITUTIONS ________________________ 31
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3.4 THE FORM OF DEVOLUTION ______________________________________ 31
3.4.1 The Principle of Distinctness ______________________________________________ 32
3.4.2 The Principle of Inter-dependence __________________________________________ 32
3.5 OBJECTS AND PRINCIPLES OF DEVOLUTION ____________________________ 34
3.6 ARCHITECTURE AND DESIGN OF DEVOLUTION IN KENYA ____________________ 34
3.7 THE VALUE FOUNDATIONS OF THE CONSTITUTION ________________________ 36
3.7.1 The Fundamental Values and Principles of Good Governance ________________________ 37
3.7.2 Sovereignty of the People ________________________________________________ 39
3.7.3 Service to the People ___________________________________________________ 39
3.7.4 Leadership and Integrity _________________________________________________ 40
3.7.5 Participation and Inclusiveness ____________________________________________ 42
3.7.6 The Important Role of Political Parties _______________________________________ 43
3.8 CONCLUSIONS _______________________________________________ 43
4 LEVELS AND UNITS OF DEVOLVED GOVERNANCE ____________ 44
4.1 INTRODUCTION ______________________________________________ 44
4.2 LOCAL GOVERNANCE ___________________________________________ 44
4.2.1 Principles of Local Governance ____________________________________________ 44
4.2.2 Levels of Governance ___________________________________________________ 46
4.3 RURAL AREAS _______________________________________________ 47
4.4 CITIES AND URBAN AREAS ________________________________________ 47
4.4.1 Cities and Urban Areas in Development ______________________________________ 47
4.4.2 Context of Cities and Urban Areas in Kenya ____________________________________ 49
4.5 CLASSIFICATION OF CITIES AND URBAN AREAS __________________________ 50
4.5.1 Capital City and County of Nairobi __________________________________________ 51
4.5.2 Conferring of City Status _________________________________________________ 52
4.6 CHALLENGES FOR FORTY SEVEN COUNTIES ____________________________ 54
4.6.1 Overview ___________________________________________________________ 54
4.6.2 Structural Overlaps ____________________________________________________ 54
4.6.3 Capacity Building ______________________________________________________ 55
4.6.4 Cross County Planning and Development _____________________________________ 55
4.6.5 Economies of Scale ____________________________________________________ 57
4.7 POLICY AND LEGAL GAPS ________________________________________ 58
4.7.1 Areas for Further Decentralisation __________________________________________ 58
4.7.2 Policy Options and Recommendations _______________________________________ 63
4.8 CONCLUSIONS _______________________________________________ 65
4.8.1 Policy ______________________________________________________________ 65
4.8.2 Legislation __________________________________________________________ 66
4.8.3 Governance __________________________________________________________ 67
4.8.4 Restructuring ________________________________________________________ 68
5 STRUCTURES AND INSTITUTIONS OF DEVOLVED GOVERNANCE __ 69
5.1 INTRODUCTION ______________________________________________ 69
5.2 PRINCIPLES OF GOVERNANCE _____________________________________ 69
5.3 LEGISLATIVE ARM OF COUNTY GOVERNMENTS __________________________ 70
5.3.1 Introduction _________________________________________________________ 70
5.3.2 Composition, Qualifications and Election of County Assembly Members ________________ 72
5.3.3 Qualifications for Election as a Member of a County Assembly _______________________ 72
5.3.4 Mandate and Functions of the County Assembly _________________________________ 78
5.3.5 Removal from Office ___________________________________________________ 80
5.3.6 Size and Population of a County Ward ________________________________________ 81
5.3.7 The Asymmetrical Transfer of Legislative Functions ______________________________ 83
5.3.8 County Assembly Legislation ______________________________________________ 83
5.3.9 Conflict of Laws _______________________________________________________ 84
5.3.10 Policy Issues and Recommendations on Legislation ______________________________ 84
5.4 EXECUTIVE ARM OF GOVERNMENT __________________________________ 86
5.4.1 Composition and Structure of the County Executive ______________________________ 86
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5.4.2 Election, Appointment and Qualifications of the County Executive ____________________ 89
5.4.3 Mandate and Functions of the County Executive _________________________________ 99
5.4.4 Removal from Office __________________________________________________ 103
5.4.5 Conclusions on the County Executive _______________________________________ 104
5.5 ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT _______________ 105
5.5.1 Historical Context ____________________________________________________ 105
5.5.2 Devolution of Government ______________________________________________ 106
5.6 RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION ___________________ 109
5.6.1 National Administration ________________________________________________ 109
5.6.2 Functions the Proposed National Administration _______________________________ 110
5.6.3 Proposed Structure of the National Administration ______________________________ 112
5.6.4 Security Management in the Counties _______________________________________ 113
5.6.5 Transition Issues _____________________________________________________ 113
5.7 CONCLUSIONS _______________________________________________115
6 FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC SERVICE
DELIVERY IN KENYA ____________________________________ 117
6.1 INTRODUCTION ______________________________________________ 117
6.2 PRINCIPLES OF FUNCTIONAL AND COMPETENCY ASSIGNMENT _______________ 118
6.2.1 General Principles for Functional Distribution _________________________________ 118
6.2.2 Principles and Criteria for Unbundling Functions and Competencies __________________ 124
6.3 FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE _______________ 125
6.3.1 Lessons from Theory and Practice _________________________________________ 125
6.3.2 Consequences of Ineffective Functional and Competency Assignment _________________ 126
6.4 FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA ___________________ 127
6.4.1 The Constitutional Provisions ____________________________________________ 127
6.4.2 Assignation to the Levels of Government in Kenya ______________________________ 130
6.4.3 The Overall Architecture: Modes, Roles and Structure ____________________________ 131
6.4.4 Unbundling of Functional Competencies _____________________________________ 132
6.4.5 Functional Distribution under the Constitution of Kenya 2010 ______________________ 134
6.5 COSTING OF ASSIGNED FUNCTIONS AND COMPETENCIES ___________________ 134
6.6 ORGANIZATIONAL OPTIONS FOR EFFECTIVE SERVICE DELIVERY ______________ 136
6.7 CONCLUSIONS ______________________________________________ 137
7 INTEGRATED DEVELOPMENT PLANNING IN THE DEVOLVED
GOVERNMENTS _______________________________________ 140
7.1 INTRODUCTION _____________________________________________ 140
7.2 INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC SERVICE DELIVERY 141
7.2.1 Why Integrated Development Planning? _____________________________________ 141
7.2.2 Linking Integrated Development Planning and Effective County Governance ____________ 142
7.3 OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT PLANNING ___ 143
7.3.1 Constitutional Basis for Integrated County Development Planning in Kenya _____________ 143
7.3.2 Proposals for Integrated Development Planning in Kenya _________________________ 146
7.4 CONCLUSIONS ______________________________________________ 148
8 INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _ 150
8.1 INTRODUCTION _____________________________________________ 150
8.2 SETTING THE CONTEXT: A BRIEF OVERVIEW OF KENYAS ADMINISTRATIVE SYSTEM _ 150
8.3 RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS ___________ 152
8.3.1 Rationale for Intergovernmental Relations ___________________________________ 152
8.3.2 Principle of Fidelity to the Nation __________________________________________ 152
8.3.3 Principle of Unity in Diversity ____________________________________________ 152
8.3.4 Principle of Cooperation ________________________________________________ 152
8.3.5 Principle of Interdependence _____________________________________________ 152
8.3.6 Principle of Oversight __________________________________________________ 152
8.4 EMERGING KEY ISSUES ________________________________________ 153
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8.5 MECHANISMS OF CO-ORDINATION AND CO-OPERATION ___________________ 154
8.5.1 National Government and County Government ________________________________ 154
8.5.2 Views Expressed by Kenyans _____________________________________________ 154
8.5.3 Recommendations ____________________________________________________ 155
8.5.4 Inter-County Governmental Relations _______________________________________ 157
8.5.6 Intra County Co-operation ______________________________________________ 158
8.6 CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES ______________________ 160
8.6.1 Concept of Cooperative Government ________________________________________ 160
8.6.2 Need for Joint Committees and Joint Authorities _______________________________ 160
8.6.3 The Role of Senate ____________________________________________________ 160
8.7 INTERGOVERNMENTAL RELATIONS AND DISPUTE RESOLUTION _______________ 161
8.7.1 Intergovernmental Dispute Resolution ______________________________________ 161
8.7.2 Comparative Experiences of Dispute Resolution Mechanisms in Africa ________________ 162
8.8 INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT _______________ 163
8.9 CONCLUSIONS ______________________________________________ 165
9 CITIZEN PARTICIPATION AND PROTECTION OF MINORITIES AND
MARGINALISED GROUPS ________________________________ 166
9.1 INTRODUCTION _____________________________________________ 166
9.2 CONCEPT OF INTEGRATED CITIZEN PARTICIPATION ______________________ 166
9.3 BASIC ELEMENTS OF CITIZEN PARTICIPATION __________________________ 168
9.3.1 Citizen Participation as a Right ___________________________________________ 168
9.3.2 Public Participation as a Function of Transparency in Democratic Governance ___________ 171
9.3.3 Public Participation as an Imperative of Influencing Decision-Making _________________ 172
9.3.4 Access to Information and the Right to Effective Democratic Citizenship _______________ 173
9.3.5 Citizen Participation and Meaningful Dialogue _________________________________ 174
9.3.6 Citizen Participation as a Condition for Accountability ____________________________ 175
9.3.7 Citizen Participation for Transparency ______________________________________ 175
9.3.8 Citizen Participation as a Normative Basis of Equity _____________________________ 176
9.4 PROCESS AND MODALITIES OF PUBLIC PARTICIPATION ____________________ 178
9.5 PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND GROUPS __ 179
9.5.1 Principles for Protecting and Inclusion of Marginalised Groups _____________________ 179
9.5.2 Definition of Terms ___________________________________________________ 181
9.5.3 Problems Faced by the Minorities and Marginalised Groups & Communities_____________ 186
9.5.4 Solutions Provided Under the New Constitution ________________________________ 190
9.5.5 Recommended Legal, Policy and Institutional Interventions ________________________ 193
9.6 CONCLUSIONS ______________________________________________ 197
10 PUBLIC COMMUNICATION AND CIVIC EDUCATION IN DEVOLVED
GOVERNANCE ________________________________________ 199
10.1 COMMUNICATION AND DEVOLVED GOVERNANCE ______________________ 199
10.1.1 Communication, Information, Governance and Development _______________________ 200
10.1.2 The Media and the Implications of the New Constitution __________________________ 204
10.1.3 Key Issues and Recommendations _________________________________________ 206
10.1.5 Outstanding Issues____________________________________________________ 211
10.2 CIVIC EDUCATION ON DEVOLVED GOVERNMENT _______________________ 211
10.2.1 Strategic Communication _______________________________________________ 212
10.2.2 Civic Education on Devolved Government ____________________________________ 212
10.3 CONCLUDING REMARKS ______________________________________ 219
11 BUILDING AN EFFECTIVE AND CAPABLE PUBLIC SERVICE _____ 221
11.1 INTRODUCTION ____________________________________________ 221
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11.1.1 Public Service _______________________________________________________ 221
11.1.2 Human Resource Management Issues in the Public Service ________________________ 222
11.2 COMPARATIVE ANALYSIS ______________________________________ 223
11.2.1 Germany __________________________________________________________ 223
11.2.2 United Kingdom _____________________________________________________ 224
11.2.3 South Africa ________________________________________________________ 224
11.3 COUNTY PUBLIC SERVICE _____________________________________ 224
11.3.1 Staffing of County Governments ___________________________________________ 224
11.3.2 Norms and Standards __________________________________________________ 225
11.3.3 Promotion of Values and Principles in the County Public service _____________________ 226
11.3.4 County Public Service Board _____________________________________________ 227
11.4 TRANSITIONING FROM THE CURRENT PUBLIC SERVICE___________________ 227
11.4.1 Staff Audits in Ministries/Departments, Local Authorities and State Corporations _________ 227
11.4.2 Re-organization and Deployment of Staff ____________________________________ 228
11.4.3 Local Authorities Staff _________________________________________________ 228
11.4.4 Harmonisation of Terms and Conditions of Service ______________________________ 229
11.4.5 Principles of Staff Recruitment and Promotion _________________________________ 230
11.4.6 Reporting Relationships ________________________________________________ 230
11.4.7 Protection of Accrued Pensions and other Benefits ______________________________ 231
11.4.8 Institutional Facilities and Mechanisms for Training and Capacity Building of Staff in the County
Public Service ______________________________________________________________ 231
11.4.9 Role of Government Training Institutions and Professional Associations in Capacity Building _ 232
11.5 CONCLUSIONS _____________________________________________ 232
12 COUNTY GOVERNMENT FINANCIAL RESOURCES AND THEIR
MANAGEMENT _______________________________________ 234
12.1 INTRODUCTION ____________________________________________ 234
12.1.1 Fiscal Decentralization Conceptual Framework ________________________________ 234
12.1.2 Principles of Public Finance ______________________________________________ 235
12.2 REVENUE ________________________________________________ 236
12.2.1 Inter-Governmental transfers ____________________________________________ 236
12.2.2 The Principle of Funds Must Follow and Match Functions _________________________ 237
12.2.3 County Own Revenues _________________________________________________ 246
12.2.4 Grants and Donations __________________________________________________ 249
12.3 BORROWING ______________________________________________ 250
12.3.1 Internal and External Borrowing __________________________________________ 250
12.3.2 Loan Guarantees _____________________________________________________ 251
12.3.3 Institutional Framework for Coordination of Borrowing and Grants __________________ 251
12.4 PUBLIC DEBT MANAGEMENT IN COUNTIES __________________________ 253
12.4.1 Objectives of Public Debt Management ______________________________________ 254
12.4.2 Principles and Techniques for Public Debt Management __________________________ 254
12.4.3 Framework for County Public Debt Management _______________________________ 255
12.5 PLANNING AND BUDGETING ____________________________________ 255
12.5.1 County Planning and Budgeting Linkages ____________________________________ 255
12.5.2 Budget Process ______________________________________________________ 258
12.6 EXPENDITURE CONTROL ______________________________________ 261
12.6.1 Expenditure Controls Framework __________________________________________ 261
12.6.2 Budgetary Controls ___________________________________________________ 263
12.6.3 Procurement/ Supply Chain Management ____________________________________ 265
12.6.4 Role of Controller of Budget _____________________________________________ 267
12.6.5 Role of Accounting Officer _______________________________________________ 269
12.6.6 Oversight Role of the County Assembly ______________________________________ 271
12.6.7 County Internal Audit Function ___________________________________________ 273
12.7 FINANCIAL REPORTING AND AUDIT _______________________________ 279
12.7.1 County Financial Accounting and Reporting __________________________________ 279
12.7.2 Role of Auditor General ________________________________________________ 282

12.8 FINANCING COUNTY INFRASTRUCTURE AND INVESTMENT _________________ 283
12.8.1 Role of Counties in Infrastructure Development and Delivery _______________________ 283
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12.8.2 Infrastructure Gaps and Equitable Development in Counties _______________________ 284
12.8.3 Approaches for the Development and Financing of County Infrastructure _______________ 284
12.8.4 County Governments Bank and Loans Authority (CGBLA) _________________________ 286
12.8.5 Efficiency, Sufficiency and Optimization of County Infrastructure ____________________ 288
12.9 INSTITUTIONAL AND TRANSITIONAL ISSUES __________________________ 289
12.9.1 Institutions and Funding of Transitional Arrangements ___________________________ 289
12.9.2 Framework for the Audit and Re-Allocation of Existing Infrastructure Assets ____________ 289
12.10 CONCLUSIONS _____________________________________________ 290
12.10.1 Summary ________________________________________________________ 290
12.10.2 Conclusion _______________________________________________________ 292
13 THE TRANSITION ROAD MAP ______________________________________ 294
13.1 INTRODUCTION ____________________________________________ 294
13.2 ORGANIZING THE TRANSITION ROAD MAP __________________________ 295
13.3 TRANSITION AREAS _________________________________________ 296
13.4 PROPOSED ENABLING LEGISLATION _______________________________ 300
13.5 PUBLIC COMMUNICATIONS IN SUPPORT OF THE TRANSITION PROCESS_________ 300
13.6 CONCLUSIONS _____________________________________________ 301
ANNEXURES ___________________________________________________________ 302
ANNEX 1: COUNTY CONSULTATIONS QUESTIONS ____________________________ 302
ANNEX 2: SCHEDULE OF COUNTY VISITS OF 20
TH
FEBRUARY TO 16
TH
MARCH 2011 ______ 304
ANNEX 3: INTERNATIONAL AND OTHER TREATIES AND CONVENTIONS RELEVANT TO
DEVOLUTION ___________________________________________________ 309
ANNEX 4: ANALYSIS OF DISTRIBUTION OF FUNCTIONS UNDER SCHEDULE 4 OF THE
CONSTITUTION OF KENYA ___________________________________________ 310
ANNEX 5: REVIEW OF METHODS FOR COSTING DELIVERY OF DEVOLVED SERVICES ______ 312
ANNEX 6: PROVISIONAL SIMULATIONS OF HORIZONTAL REVENUE SHARING SCENARIOS __ 314
ANNEX 7: PROVISIONAL COUNTY PROFILES _______________________________ 316
BIBLIOGRAPHY ________________________________________________________ 318
ENDNOTES_____________________________________________________________ 319

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LIST OF ACRONYMS
ACHPR African Commission on Human and Peoples Rights
AIA Appropriations in Aid
AIE Authority to incur Expenditure
BOO Build-Own-Operate
BOOT Build-own-operate-transfer
BOT Build Operate Transfer
CBD Central Business District
CCN City Council of Nairobi
CDF Constituency Development Fund
CEDA Convention on the Elimination of All Forms of Discrimination
CIC Constitution Implementation Commission
CILOR Contribution in lieu of rates
CIPFA Chartered Institute of Public Finance and Accountants
COAG the Council of Australian Governments
CoE Committee of Experts
CoK Constitution of Kenya
CP Community Participation
CRA Commission on Revenue Allocation
CSO Civil Society Organisation
EU European Union
GIS Geographic Information System
GJLOS Governance, Justice, Laws and Order Sector
IASB International Accounting Standards Board
ICPAK the Institute of Certified Public Accountants of Kenya
ICT Information and Communication Technology
IEBC Independent Electoral and Boundaries Commission
IFMIS Integrated Financial Management Information System
IFRS International Financial Reporting Standards
IGR Intergovernmental Relations
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IIEC Interim Independent Electoral Commission
ILO International Labour Organisation
IPSAS International Public Sector Accounting Standards
JICA Japan International Cooperation Agency
KACC Kenya Anti-Corruption Commission
KEPSA Kenya Private Sector Alliance
KRA Kenya Revenue Authority
LA/LAs Local Authorities
LASDAP Local Authority Service Delivery Action Plan
LATF Local Authority Transfer Fund
LPAs Local Purchase Orders
LSK Law Society of Kenya
LSOs Local Service Order
MoSPS Ministry of State for Public Service
MPs Members of Parliament
MTEF Medium Term Expenditure Framework
NARC National Rainbow Coalition
NGOs Non-governmental Organisations
NTA National Taxpayers Association
PA Provincial Administration
PCC Presidents Coordinating Council
PCM Project Cycle Management
PETS Public Expenditure Tracking Surveys
PFMR Public Financial Management Reform Programme
PPOA Public Procurement Oversight Authority
PPP Public-private partnerships
PRSP Poverty Reduction Strategy Papers
PSC Public Service Commission
RMLF Road Maintenance Levy Fund
RPRLGSP Rural Poverty Reduction and Local Government Support
Programme
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SALGA South Africa Local Government Association
SMS Short Message Service
SWAP Sector Wide Approaches
TFDG Task Force on Devolved Government
TJRC Truth Justice and Reconciliation Commission
TORs Terms of Reference
UN United Nations
UN-Habitat United Nations Agency for Human Settlements

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LIST OF FIGURES
Figure 1.1: Organization of the Interim Report on Implementation of Devolved Government
in Kenya ________________________________________________ 7
Figure 2.1: Kenyas Projected Population Growth Pattern ______________________ 17
Figure 2.2: Building Blocks for Cooperative Competitive Counties in Kenya __________ 18
Figure 2.3: Challenge of Kenyas Population Dynamics _______________________ 21
Figure 2.4: Critical Success Factors for Devolution in Kenya ____________________ 22
Figure 5.1: Structure of County Governments ______________________________ 71
Figure 5.2: Elections and Electoral Processes at the County Level _________________ 76
Figure 5.3: Proposed Levels of the National Administration ____________________111
Figure 6.1: Functional Assignment Architecture in the Constitution of Kenya, 2010 ___ 131
Figure 6.2: Options for County Public Service Partnerships in Kenya _____________ 135
Figure 6.3: Implementation of the Framework Policy Paper on Functional and Competency
Assignment in Kenya _____________________________________ 137
Figure 7.1: Components of Integrated Development Planning for Kenya ___________ 142
Figure 7.2: Proposal for Integrating Development Planning Frameworks in Kenya ____ 146
Figure 7.3: Operationalising Integrated Development Planning in Kenya __________ 147
Figure 12.1: Fiscal Decentralisation Conceptual Framework __________________ 235
Figure 12.2: Institutional Framework for Coordination of Borrowing and Donor Grants 253
Figure 12.3: Planning & Budgeting Framework ___________________________ 256
Figure 12.4: SWAP MTEF Framework _________________________________ 260
Figure 12.5: Financial Control Systems in County Governments ________________ 262
Figure 12.6: County Infrastructure Financing and Development ________________ 286
Figure 13.1: Conceptualizing the Transition Process to Full Establishment of County
Governments _________________________________________ 295

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LIST OF TABLES
Table 1.1: Summary of the Thematic Areas ________________________________ 3
Table 1.2: Synopsis of Key Work Activities and Deliverables from the Terms of Reference 4
Table 5.1: Advantages and Disadvantages of the Simple and Absolute Majority Electoral
Systems _______________________________________________ 97
Table 6.1: Dealing with lack of clarity in functional assignment between different levels of
government ____________________________________________ 126
Table 6.2: Constitution of Kenya, 2010 Provisions relevant to Functional Assignment and
Public Service Delivery ____________________________________ 127
Table 6.3: Disaggregating the Competencies for Public Service Delivery ___________ 133
Table 6.4: Suggested Definition of Competencies __________________________ 133
Table 7.1: Key Constitutional Provisions relevant to Integrated County Development
Planning in Kenya _______________________________________ 143
Table 12.1: SWAP Process _________________________________________ 259
Table 12.2: County Infrastructure facilities that can be commercialized or developed
through public-private partnerships __________________________ 288
Table 13.1: Transition in Phase 1 ____________________________________ 297
Table 13.2: Transition in Phase 2 ____________________________________ 298
Table 13.3: Proposed Legislation for Implementing Devolved Government in Kenya _ 300

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GLOSSARY OF TERMS
TO BE INSERTED IN THE FINAL REPORT

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1 TASK FORCE MANDATE, TERMS OF REFERENCE
AND THEIR INTERPRETATION
1.1 INTRODUCTION
Pursuant to the Constitution of Kenya, 2010 (CoK, 2010) and a decision of the Fourth
Cabinet Meeting
1
of 17
th
August 2010, the Deputy Prime Minister and Minister for
Local Government established the Task Force on Devolved Government (TFDG) on
the 22
nd
October 2010 through Gazette Notice 12876 dated 25
th
October 2010.
Additional members of the Task Force and Steering Committee were gazetted on 3
rd

December 2010. The purpose of the task force was to help think through the
implementation of the devolution process and advise the government on policy and
legal frameworks of devolving power, resources and responsibilities to the people of
Kenya for effective local development. The Task Force was officially launched on 8th
November 2010 by the Deputy Prime Minister and Minister for Local Government,
Hon. Musalia Mudavadi.
1.2 MANDATE OF THE TASK FORCE
The overall mandate of the Task Force is to propose implementation mechanisms for
the devolved system of government as envisaged in the Constitution of Kenya, 2010.
The specific terms of reference (ToRs) of the Task Force as set out in the Gazette
Notice are:
a. Prepare a detailed work plan indicating the detailed milestones and timelines
and present to the same to the Steering Committee.
b. Undertake studies and make proposals for effective implementation of
devolution structures consistent with the provisions of the Constitution.
c. Commission studies or researches as are necessary for the effective execution
of its mandate.
d. With reference to specific provisions of the Constitution, collect and collate
public views on how implementation of the devolved government should be
structured.
e. Undertake stakeholder and public consultation to develop consensus on
options of structures and institutions of devolved government.
f. Recommend policy frameworks for implementation of devolved government as
provided for in the Constitution.
g. Make proposals on appropriate legislation to anchor and implement the
devolved government; and
h. Make monthly reports or as may be required by the Steering Committee.
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1.3 THE POWERS
The powers of the Task Force were to:
a. Hold meetings, public forums or consultations as it shall deem necessary;
b. Hold meetings in any part of the country and shall ensure views from all the
counties are received and considered;
c. In consultation with the Steering Committee, co-opt local and international
experts in particular areas of need as may be necessary;
d. Commission studies or researches to institutions or individuals with requisite
expertise, as required to undertake its tasks;
e. Co-ordinate and consult with relevant ministries, departments and agencies in
order to access all relevant information, documentation and studies as are
relevant to enable the Task Force execute its mandate; and
f. Nominate acting chairperson from amongst the members in the absence of
the Chairperson.
1.4 TERMS OF REFERENCE AND THEIR INTERPRETATION
The TFDG was expected to submit to the Steering Committee Reports that shall, inter
alia, contain recommendations for:
a. operationalising the functions of each County, consistent with the Fourth
Schedule of the Constitution;
b. restructuring the provincial administration to accord with and respect the
system of devolved government established under the Constitution;
c. the specifics of the financial management system that the County
Governments shall perform;
d. the taxes and charges that each County may impose;
e. to prepare drafts of such new legislation including legislation on urban areas
and cities under Article 184 of the Constitution and review of the Local
Government Act (Cap. 265) or the Local Government Bill, 2009 as may be
necessary;
f. assistance to County governments in building their capacity to govern
effectively and provide the services for which they are responsible; and
g. a programme for civic education on the proposed legislation.
1.5 APPROACH TO AND SCOPE OF THE ASSIGNMENT
The Task Force acted as the technical arm of the Steering Committee and was made
up of thirty-one (31) persons drawn from various stakeholders including, but not
limited to, ministries, stakeholder representatives and experts recommended to the
Deputy Prime Minister and Minister of Local Government by the Steering
Committee. The work of the Task Force was guided by the terms of reference and the
following general methodology was adopted:
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1. Weekly Meetings: the TFDG held weekly meetings at which both technical
and administrative issues were dealt with. In these meetings, the focus was on
developing themes for carrying out the work and also consultation on the
same.
2. Working Sessions: the various thematic groups, including individual
members of these groups, held sessions as groups or jointly on various issues
under their purview, with which they were tasked.
3. Working Retreats: working retreats were used to consolidate issues and
prepare the various outputs required of the TFDG.
4. Consultation Meetings: the TFDG held working consultations with various
government ministries, development partners and non-state actor groups to
develop understanding of the issues.
5. County Consultations: as part of its mandate, county consultations were
held in all the forty-seven (47) counties based on five thematic areas
developed. These were implemented over a period of three weeks.
6. Workshops and Symposia: workshops and symposia were held with key
stakeholders to solidify themes and recommendations identified and made on
matters relating to the operationalization of devolved government in Kenya
The TFDG held preparatory meetings leading to a working retreat on 5-8 December
2010 at the Great Rift Valley Lodge, Naivasha, Kenya. A consequence of this retreat
was the identification of eight sub-themes, with task force members divided into four
groups as shown in Table 1.1. Based on these, each thematic group was tasked to
develop position papers. Subsequent to this, a list of consultation questions was
developed for purposes of soliciting the views of members of the public (see Annex 1).
To facilitate the work of the task force a team of programme officers and research
assistants were competitively recruited and attached to the thematic groups as
identified.
Table 1.1: Summary of the Thematic Areas
# THEMATIC GROUP NAME AREAS OF FOCUS
1 Financial resources and management and
transitional issues
Financial resources and management
Transitional issues
2 Cooperative and inter-governmental
relations and levels of governance, cities
and urban areas
Cooperative and intergovernmental relations
levels of governance
Cities and urban areas
3 Citizen participation, protection of
marginalized groups and communities,
political governance and leadership and
communication and civic education
Public participation and protection of
marginalized groups and communities
Political governance and leadership
4 Public administration, human resource,
capacity building and functional distribution
and service delivery.
Public Administration, human resources and
capacity building
Functional distribution and service delivery
Restructuring of the Provincial Administration
Between 27 March and 8 April 2011 a retreat was held at the Leisure Lodge, Ukunda
to prepare the Interim Report of the Task Force, which was subsequently adopted on
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Monday 18
th
April 2011 before it was submitted to the appointing authority through
the Chairman of the National Steering Committee.
To guide the county consultations, the TFDG deliberated and agreed on the following
areas of focus, namely:
1. Cooperative Government, Inter-Governmental Relations and Levels of
Governance
2. Functions of and Service Delivery by County Governments
3. Financial Resources and Management in County Governments
4. Political Governance, Leadership, Accountability and Integrity in County
Governments
5. Citizen Participation and Oversight, Protection of Minorities and Marginalized
Groups and Communication and Civic Education.
For each of these areas, a set of questions was developed and advertised in the
newspapers on diverse dates, leading to the county visits (see Annex 1 for details).
The work packages column outlines the specific activities which the Task Force on
Devolved Government undertook in order to realize the objectives of the study (see
introduction under each of the parts). These outputs were realized through
consultations with Stakeholders, research and studies on devolved governments,
consultations with relevant ministries, departments and agencies and Benchmarking
missions to other countries/regions. It is expected that additional experts will be
required during the drafting stage of policy and legal documents. Table 1.2 provides a
synoptic view of key deliverables with a link to work packages and tasks.
Table 1.2: Synopsis of Key Work Activities and Deliverables from the
Terms of Reference
Work Package (WP) No Work Package (WP) Description Key deliverables
Work Package 1 Prepare a detailed work plan indicating the detailed
milestones and timelines and present to the same to the
Steering Committee.
Detailed Work Plan
Work Package 2 Undertake studies and make proposals for effective
implementation of devolution structures consistent with the
provisions of the Constitution.
Internal and External Study
Reports
Minutes of Meetings
Work Package 3 Commission studies or researches as are necessary for the
effective execution of its mandate.
Internal and External Study
Reports
Work Package 4 With reference to specific provisions of the Constitution,
collect and collate public views on how implementation of
the devolved government should be structured.
Consultation Concept Note
County Consultation Reports
Work Package 5 Undertake stakeholder and public consultation to develop
consensus on options of structures and institutions of
devolved government.
Recommend policy frameworks for implementation of
devolved government as provided for in the Constitution.
County Visits
International Symposium
Proceedings
Work Package 6 Make proposals on appropriate legislation to anchor and
implement the devolved government; and
Drafting Instructions
Draft Bills
Work Package 7 Make monthly reports or as may be required by the
Steering Committee.
Monthly Reports
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The TFDG continuously engaged with the Steering Committee on a monthly basis or
as may be required. In consultation with the Steering Committee, the TFDG co-opted
and/or engaged various local and international experts on specified areas.
Stakeholder consultations took various forms, including town hall meetings, focus
group discussions and meetings with specific experts such as those in the fields of
urban planning, finance, law and governance.
Members of Parliament and key professional associations were also consulted.
Ministries, Departments and Agencies were consulted to assess their understanding
of the new roles of the national government; the devolution of functions to counties,
including the development of the required standards for service delivery; and, the
alternative scenarios for sequencing the devolution of functions. More importantly
they were consulted as a basis for facilitating appropriate devolution of functions to
the county government.
1.6 CHALLENGES IN IMPLEMENTATION OF THE ASSIGNMENT
In implementing this assignment the TFDG experienced a number of challenges.
These included the time constraint of having to implement a comprehensive
assignment over a period of nine months. The start-up delays, arising out of the need
to quickly affect a fund raising strategy for the various activities, made this challenge
more onerous. One of the key mandates of the TFDG was to collect views, on
operationalization of devolved government, from citizens. The experience from the
field clearly showed that civic education on the provisions and implications of the
Constitution of Kenya, 2010 was wanting. To overcome this challenge, the County
Consultation Teams included within their programme a short rendition of the
provisions of the CoK, 2010 in respect of devolved government.
1.7 REPORT PURPOSE
The purpose of this Interim Report of the Task Force on Devolved Government
(ITFR) is to provide the initial feedback to the Deputy Prime Minister and Minister
for Local Government on the proposed measures to operationalise Devolved
Governments as envisaged under the Constitution of Kenya. In addition, the ITFR
will be applied as the main consultation document at the planned International
Symposium on Devolved Government to be held in early June 2011 at the Kenyatta
International Conference Centre, Nairobi, Kenya. As part of the consensus building
efforts, the ITFR will be used to consult with the citizens of the Republic of Kenya,
individual and organized groups, in a targeted manner on the proposals. The
findings received will be used to refine recommendations and prepare the final
report, including the draft legislation to be submitted to the appointing authority for
onward transmission to the formal organs of implementing the Constitution of
Kenya, 2010.
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1.8 ORGANIZATION OF THE REPORT
This Interim Report of the Task Force on Devolved Government (ITFR) is organized
into fourteen, closely related and interrelated chapters. The chapters are organized
around specific themes, which are key building blocks for effecting the
operationalising effective developmental devolved government in Kenya.
Chapters Two and Three lay the basis for an identification of the reasons why
Kenyans adopted a new constitutional framework founded upon a devolved
framework. They also establish, on the basis of the constitution, the basis upon
which this new devolved framework is conceptualized and elaborated in the
subsequent sections. The two chapters elaborate on shared institutions between the
national and county governments. It makes the case as to why these institutions
should be deemed to be shared and therefore how they should be constituted and
managed and/or the mechanisms of their decision making processes. Chapter Four
discusses the levels and units of governance within the forty-seven (47) devolved
units. They found the place of urban areas within county governments. Chapter Five
discusses the structures and institutions of governance established for governance of
the counties, including an elaboration of the legislative and administrative
frameworks. Chapter Six discusses the assignment of functions to the various levels
of governance and their implications for public service delivery. It proposes the
framework for effective and efficient functional and competency assignment.
Chapter Seven makes a case for integrated development planning in the county
governments and the linkages to national level planning. It identifies the instruments
and mechanisms that need to be put in place to achieve this critical building block for
devolved government. Chapter Eight dwells on the intergovernmental relations and
dispute resolution framework so critical for effective performance of the devolved
entities. Chapter Nine discusses, emphasizes and elaborates on the framework
effective citizen participation in the processes and institutions of devolved
government. It makes a linkage between citizen participation as a mechanism of
including citizens in county governance processes as well as being an instrument for
the protection of minorities and marginalised groups. Chapter Ten brings to the fore
the importance of public communication and civic education for enhancing the
implementation of devolved government. Chapter Eleven, on the basis of the
previous chapters, discusses the imperatives of building and effective county public
service, including an elaboration of measures to deal with transition from current
structures as well as incentivizing opportunities in the nascent county public service.
Chapter Twelve focuses on county financial resources and their management
structures and mechanisms, responsive to the status of counties and the imperatives
of the Constitution of Kenya. Chapter Thirteen summarizes and integrates the
conclusions and recommendations from the various chapters, including a
rationalization and integration of the various policies, legal, regulatory and
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administrative proposals made. Chapter Fourteen then ties all these up by proposing
the transition mechanisms as the new devolved units are founded and
operationalised.
Figure 1.1: Organization of the Interim Report on Implementation of
Devolved Government in Kenya

Figure 1.1 illustrates the structure of the report as described in the previous sections.
1.9 THE NEXT STEPS
This Interim Report (ITFR) of the Task Force on Devolved Government is a
document developed out of extensive consultations and harnessing of citizens views.
The next phase will involve utilisation of this ITFR as a consultation document. In
this regard, the activities subsequent to its submission will be a continued effort to
strengthen realisation of Mandate (e) of the TFDG, namely that of:
undertake stakeholder and public consultation to develop consensus on options
of structures and institutions of devolved government.
To achieve this, the TFDG will implement the following activities, using the ITFR as
the main consultation document, namely:
targeted consultations with the National Assembly and its Departmental
Oversight Committees;
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targeted consultations with Permanent Secretaries;
engagement with the National Steering Committee
targeted consultations with Ministries, Departments and Agencies on the
proposals made within the report;
targeted consultations with Trade Unions and workers representatives;
targeted consultations with Association of Local Government Authorities of
Kenya (ALGAK) members;
targeted sectoral consultations with organised groups and key informants from
the private sector, non-state actor sector, and faith based groups; and
hold regional validation meetings; and
implement an International Symposium on Devolved Government in Kenya;
These engagements will be applied to firm up and further contextualise the proposals
made within the ITFR in a manner that builds consensus amongst all the key
constituencies relevant to the proposals.

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2 CONTEXT AND PROMISE OF DEVELOPMENTAL
DEVOLVED GOVERNMENT
2.1 INTRODUCTION
Kenya is emerging from a state of poor governance demonstrated by widespread
corruption, ethnic conflicts, insecurity, political uncertainty; and poverty among
others. Poor governance has resulted in, among other negative outcomes, the
alienation of large portions of the society from the mainstream economy; the
squandering of public resources leading to low levels of development and massive
poverty, ethic animosity due to
perceptions of historical
injustices; and cut-throat
political competition and
intolerance
2
. Box 2.1
summarises some of the
perspective of citizens about
this history.
The post-election crisis was
largely due to weaknesses in
key institutions of governance
including the constitution, the
judiciary, the police, the
executive, the electoral system,
and parliament. The
weaknesses of these
institutions can be traced back to constitutional and legal amendments made during
the first three decades of independence in order to centralize power in the executive
and minimize checks on executive power by other institutions. The changes resulted
in not only centralisation of power but also monopolisation of power as opposition
political parties, were initially frustrated and eventually outlawed. This ultimately
resulted in state capture by small elite that wielded political power
3
. The political elite
used the state to accumulate wealth at the expense of national development. The
monopolisation of power also led to stifling of democratic development as the
governance of the country drifted from constitutional rule to personal rule which
distorted national goals set at independence of fighting poverty disease and
ignorance.
The struggle for constitutional reforms has its roots in the desire to correct the
deficiencies in the governance framework of the country. A central objective of the
BOX 2.1: COUNTY VISIT SUBMISSIONS ON
THE HISTORICAL PERSPECTIVE

Struggle for a constitution that addresses equity
and equality for all
Poor services, insecurity, poverty, discrimination
in appointments to key state jobs
Country divided based on inequalities in social,
economic, political development
Discriminatory policies have contributed to
underdevelopment of the northern Kenya sub-
region
Skewed relationships between the people and
their leaders
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struggle has been the restoration of power to local communities to manage their
affairs particularly in matters of local development.
The Constitution of Kenya, 2010 has fundamentally altered this defective governance
framework of the country through various far reaching reforms. The most critical of
these reforms are: the introduction of a new normative framework/value system-
achieved through the preamble, Article 10 and chapter six of the constitution;
devolution of power through the creation of two levels of government (chapter
eleven);constraining of executive power through the introduction of various checks
on the powers of executive, particularly the president (approvals for key
appointments and consultation before making key appointments, creation of various
independent commissions to safe-guard democracy and constitutionalism) and the
introduction of a modern expansive bill of rights.
Of these far reaching reforms devolution is likely to have the most profound impact
on governance. This section attempts to contextualise devolution by outlining the
origins and challenges created by the centralization of power and exploring the
opportunities created by the new constitutional dispensation.
2.2 THE CENTRALIZED COLONIAL STATE
The colonial government which was primarily established for the purposes of
exploitation and plunder established highly centralised, brutal and racist state
machinery for facilitating its colonial functions. The system did not allow for the
representation of Africans, who were the majority, in the Legislative Council, an arm
of government which was responsible for the development of legislation, by elected
members. Discriminatory development in Kenya owes its origin to this colonial
history. For most of the colonial period, Africans were represented by non-Africans
in the Legislative Council. The first African to the Legislative Council was only
nominated in 1944. The exclusion of Africans from the Legislative Council was on the
basis that they would not be able to articulate their issues and also did not
understand their best interests
4
.
Power was centralized around the governor who in turn was answerable to the
imperial government. There was no separation of powers as the executive exercised
immense power over both the legislature and the judiciary
5
. Administrator often
acted as magistrates. The executive council which primarily advised the governor on
the administration had little power. For most of the colonial period, the Governor was
the president of both the executive and the legislative council. He was supported by a
powerful administrative system-the provincial administration. The Governor was
constrained by the state secretary who had to authorize most of his policy and
legislative proposals on behalf of the colonial office. Kenya was almost wholly ruled
from the centre and from outside, and the people had almost no say in the decisions
that affected and shaped their lives.
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The economy of the colonial state was also organized and managed along racial lines
and geared towards exploiting the Africans for the benefit of the whites. Through
legislation, including the crown lands ordinances (1902 and 1915) Africans were
deprived of most of the productive land which was allocated to the white settlers.
Africans were restricted to occupying land reserved for them-the reserves. They were
also forced to provide labour for settler agriculture. Africans were encouraged and
coerced through taxes and legislation to provide labour and also to live on settlers
farms as squatters or share croppers. This created the problem of squatters that
persists to this day. It also dislocated various communities from their ancestral land
though migrations in search of labour. Various policies and legislation were
developed to give whites economic advantage and undermine the non white
economy. For example, non-whites were not allowed to grow certain crops including
coffee. Marketing of produce was also highly controlled by the state. Thus through
policy and legislative measures the state determined the economic developments of
the various areas occupied by the whites and Africans respectively. Over time this
created economic disparities that have persisted to this day.
For about seventy years, the colonial government and its officials abused human
rights with impunity engaging in forced labour; communal punishments; extra-
judicial killings (of those who resisted colonial rule); detention without trial; rape,
war crimes and the grabbing of African land for white settlement among other
violations. The struggle for independence was informed by the need to address these
wrongs.
2.3 THE POST-INDEPENDENCE QUASI-FEDERAL SYSTEM
At independence Kenya adopted a fairly progressive liberal constitution whose
primary features were: an extensive bill of rights; a bi-cameral parliament; devolved
government; separation of powers between the arms of government; judicial
independence; and a multi-party political system
6
. One of the key features of the
independence constitution was the semi-federal system of government. The
constitution created regions (Majimbo) with extensive powers on the delivery of
services and also substantial political power. The powers of the regions were
protected by various mechanisms including entrenched constitutional provisions, a
senate and exclusive assignment of functions and sources of funding.
The quasi-federal system was achieved as a compromise between the centralist
KANU and the federalist KADU. The compromise was preceded by protracted
negotiations between the two parties that primarily clustered ethnic communities
into big and small tribes. The parties embodied the hopes, aspirations and fears of the
respective ethnic communities. The fears of the communities were primarily about
ethnic domination of the small tribes by the big tribes and dispossession of their
ancestral land on the one hand and ethnic exclusion of the big tribes from certain
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areas/balkanization of the country into ethnic enclaves on the other. To address these
fears the constitutional compromise comprised of guarantees of regional autonomy
and a bill of rights that protected property and the right of the individual to reside
and work anywhere in the republic. The bill of rights was also influenced by the need
to secure the future of the British settlers that would remain in the ex-colony after
independence.
The 1963 constitution divided the country into the Nairobi area and seven other
regions- Coast, Eastern, Central, Rift Valley, Nyanza, Western and North Eastern.
The regions were constitutionally empowered to make laws through an elected
regional assembly and they were administered through committees of the regional
assembly supported by a public service. The regional assemblies had legislative
competences (both exclusive and concurrent) on most of the local service delivery
matters including agriculture, education, community development, housing, health
services. There was also a system of local government to facilitate popular
participation in governance. In addition the country had a well-developed
administrative structure in the form of provincial administration
The design of the independence constitution was informed by the experiences of
Kenyans during the colonial period and the desire to deconstruct the colonial state
that had systematically discriminated against non-whites; divided society along racial
and ethnic lines; impoverished large sections of the population; and denied the
people, particularly the Africans, a chance to be responsible for their affairs. Regional
autonomy sought to empower the local communities to be responsible for the local
governance. This would address the fears of ethnic dominance which had been
expressed by the numerically small communities by removing substantial power and
resources from the centre to the regions.
It has been observed that at independence African countries adopted constitutions
that created constitutionalist states whose dominant mode of domination was to be
law. They say
7
:
the system was to be characterized by impersonal authority defined and
limited by the law; there was to be a clear separation of the private and public
aspects of the lives of the leaders in government. The law was to be the basis of
state power, to be exercised by a neutral bureaucracy recruited on the grounds
of qualifications and experience; public office was to be a trust, not personal
benefice; the bureaucracy was to be purposive, pursuing national goals; it was
to be accountable for the manner in which it exercised its powers. An
independent judiciary was expected to supervise the system.
Unfortunately the provisions of the constitution were never fully operationalised. The
institutions it created were not allowed to thrive and consolidate. Within one year of
independence the process of dismantling the quasi-federal system commenced and
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the re-centralization of power was pursued by the ruling party KANU with zeal for
the next thirty years resulting in a highly centralized and personalized rule until the
wave of democratic reforms in the 1990s.
2.4 PERPETUATION OF THE CENTRALIZED STATE
The dream of a constitutionalist state was never realized in Kenya. The independent
constitution was amended to remove virtually all the checks on executive power
thereby putting to rest the notion of constitutionalism- limited government.
Executive power however continued to be legitimized ostensibly through the
constitution. The executive was very conscious of the need to trace back the exercise
of its authority to the constitution despite the fact that the values of the constitution
were not in reality having any impact on the exercise of executive power. Ogendo
describes this paradox of states in the third world that continue to have the faade of
constitutional democracy-all the institutions, processes and procedures but with no
practice of the values of constitutional democracy - as having constitutions without
constitutionalism
8
.
Between 1963 and 1990 there were more than 30 constitutional amendments
primarily geared towards the monopolization of power by the ruling party and the
centralization of power around the executive (particularly the President). During this
period, political competition was muzzled and civil society withered as it was
increasingly intimidated, co-opted or banned from carrying out certain activities by
the state. Over time the state occupied the entire public sphere crowding out both
political actors and the civil society
9
.
Apart from political and social control, the state also restated the discriminatory
policies of colonial government by favouring certain sectors of the economy while
undermining others through policy and legislation. In keeping with dominant
economic model of the time, of the developmental state, the state situated itself as the
main agent of development. This model advocated for comprehensive centralized
planning. The policy was expressed in the national economic blueprint-Sessional
Paper No.10 of 1965. It advocated for the focusing of development and investment on
the high potential areas on the understanding that the economy would experience
rapid growth due to the higher returns on investment in those areas. The policy
failed to address the effects of colonial bias in the zoning of areas as high, medium of
low potential.
The zoning was primarily based on the needs of the settler economy which were
anchored on the British needs at the time
10
. Thus though well meaning, the policy on
centralized planning reinforced the marginalization of the areas that had suffered
neglect during the colonial period. There was no express recognition of the need to
correct the imbalances created by the discriminatory practices of the colonial
government. Although the economy recorded impressive growth of about 7 per cent
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in the first decade of independence the benefits of the growth were not equitably
distributed. It was biased in favour of high potential areas.
The independence government also adopted the policy of Africanisation of key
commercial enterprises in order to give Africans the commanding heights of the
economy. This policy was founded on the understanding that political independence
without economic power was meaningless. It sought to give Africans a foothold in the
national economy which they had been denied by years of discriminative colonial
policies and legislation. This well-intended policy was unfortunately subverted by
political biases that existed at the time. The political elite ensured that the
Africanised businesses went to their friends, colleagues or political supporters. The
execution of this policy had the unintended effect of creating an economic elite and
further exacerbating the economic difference between the favoured areas as the elite
predominantly were from the high potential areas
11
.
The desire of the ruling party and president to centralize and monopolise power was
primarily driven by the need to exercise unlimited control over state resources in
order to dispense patronage to political supporters (both individuals and ethnic
communities).The monopolization of political power by the ruling party and the
removal of limits on the exercise of executive power inevitably led to massive abuse of
power.
2.5 THE PROBLEM OF CENTRALIZATION
The main problem of centralization of power in Kenya is that it led to the capture of
the state by a few political elites. These elites were able to control both political and
economic power in the entire country. The concept of republican government as an
instrument in the service of the welfare of the people disappeared as government
ceased to serve the people and became the property of a few. People sought to be
elected or appointed to public offices, not to serve the people but to amass wealth at a
personal level. Election or appointment to certain public offices became the easiest
way to amass wealth and become rich. The notion of servant leadership disappeared
as personal aggrandizement took centre stage. Corruption, mismanagement and
plunder of public resources as well as political patronage became the order of the day.
The countrys economy almost collapsed reducing the lives of the ordinary people to
survival for the fittest.
Allocation of resources and development opportunities to individuals and different
parts of the country was then done on the basis of political patronage instead of
objective criteria and the most important person in this process became the
president. This excluded many people from government services creating a feeling of
marginalization in many parts of the country. A strong feeling of exclusion led to the
perception that one had to have one of their own tribesperson in a key political public
office for him to access government services and opportunities. Because of this,
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competition for political office became intense. Indeed, the presidency became
ultimate price.
Centralised planning and the concentration of power at the national level of
governance have been identified as one of the key obstacles to both development and
democratization. Centralisation of power and economic planning and administration
denies communities the opportunity to shape or influence their destiny in the matters
of both development and democratization.
Centralised organizational structure exhibits a number of the following weaknesses
among others
12
:
The central government officials responsible for planning are far removed
from the peculiar circumstances of the various regions or localities of the
country. They are therefore often ill-equipped to design optimal solutions to
the development problems of these areas.
Due to the lack of an adequate appreciation of the critical factors that influence
development, central planners tend to develop generalized and unrealistic
plans that fail to sufficiently address the developmental needs of the local
community.
By centralizing planning, there is often need for constant communication
between the centre and its implementation officers on the ground. This back
and forth communication in which field officers must constantly refer matters
to the centre for decision making creates serious inefficiency in the system
thus undermining development.
Centralisation can no longer be justified by the earlier post-independence
rationale that there are insufficient officers with the necessary qualifications to
allow for the decentralization of functions. Nor the assumption that field
officers are less qualified than the officers in the headquarters. Today there are
enough qualified officers in the public service to effectively decentralize most
functions. Continued centralization of decision making demoralizes field
officers
Locating decision- making of planning in the centre while implementation
takes place in the field undermines co-ordination as the various technical
departments operate independently and also refer matters to the centre
independently without adequate consultation among each other. Horizontal
co-operation in the field is thus undermined by the need to defer to a faraway
superior in decision- making.
Centralized administration undermines accountability as the field officers can
easily shift the blame for their defective implementation or misuse of resources
to their superiors at the centre. The identities of the responsible officers at the
centre are normally vague. Decentralisation overcomes these challenges by
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directly connecting the state actions at the local level with officers to be held
accountable.
Centralization excludes the citizen from decision-making in planning and
implementation as well as the field officers. Centralised systems presuppose
that the citizen has no ability to effectively contribute to developmental
matters. It ignores the fact that the citizen is more aware of their needs, is
more interested to support the development programmes in their area and
that opportunities for popular participation are necessary in order to develop
democratic culture.
Centralisation denies the local population a genuine platform for participation
as the public officers at the centre are far removed from the citizens and not
bound by the views or suggestions made to field officers
13
.
2.6 THE PROMISE OF DEVELOPMENTAL DEVOLVED GOVERNMENT
Kenya is in urgent need for a more intense shift towards a focus on development. No
one is more aware of this need than the citizens as was discerned from the county
visit submissions (see Box 2.1). They made it clear that the mission for the counties
would and should be that of achieving positive development outcomes for the
citizens. Some of these outcomes included job creation, harnessing local potential,
integrating the counties with the nation, amongst others. The counties in the
constitution will have to be primed to focus on development, hence the concept of
developmental devolved
government. This
developmental devolved
government must yield
functional development
for the estimated 64
million Kenyans in the
year 2030 (see Figure
2.1). By this we mean
that the era where
hospitals, schools and
other facilities were built,
without the requisite
operational resources to
enable there utilisation
must come to an end.
There must be an intimate relationship between all the parameters and actors
necessary for effective access to and utilisation of public services. It is thus
anticipated that this will actually lead to the outcomes anticipated under the
Constitution of Kenya 2010 and expected by citizens of the country.
EXPECTATIONS OF DEVOLVED GOVERNMENT

Devolved government should lead to national renewal
Nation built on equity and equality for all Kenyans
An inclusive nation where everyone feels they belong
Equal opportunity for all
Design of policies that reduce inequality in the country
Ensure positive relations between the people and their
leaders
Reduce the adverse effects of politics on governance
Bring the government closer to the people
Devolved governments as a platform for accessing
rights enshrined in the constitution
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Figure 2.1: Kenyas Projected Population Growth Pattern
As is illustrated in Figure 2.2 the foundations of developmental devolved government
will be to commit to incorporating citizen participation in all developmental
initiatives at the county level. These counties will have to cooperate in a manner that
will grow local economies and position them to be competitive locally and/or
regionally as appropriate. They will also have to focus on, building and maintaining
quality places, promoting inclusive growth and generally managing counties for
prosperity.
2.6.1 Building Blocks for Cooperative and Competitive Counties
Prosperity of the new counties and therefore that of the Kenyan people, individually
and as a whole is dependent on enhancing access to opportunity to all citizens while
ensuring adequate environmental protection. As nations struggle to attain and
maintain economic competitiveness, the constraining effect of administrative
boundaries becomes a matter of concern. For example, in respect of the United
States of America, the Brookings Institution
14
has argued that:
..as Congress shifts many now-federal powers to lower levels of government,
it is missing a unique opportunity to resolve a fundamental flaw in America's
governance structure: the absence of any authority at the metropolitan-
region. All public policies are created by local governments with narrow
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parochial viewpoints or state governments too far from local conditions to be
effective ..
Figure 2.2: Building Blocks for Cooperative Competitive Counties in Kenya

This observation is pertinent for Kenya as we operationalise the CoK 2010. Kenya is
rapidly urbanising and it is fully expected that by the year 2030, over 60 per cent of
the population will be living in urban areas. Globally, the evidence available shows
that the preponderance of economic growth will come from urban areas. In their
report, Urban World: Mapping the economic power of cities
15
, McKinsey Global
Institute report that:
Half of the worlds population already lives in cities, generating more than 80
per cent of global GDP today. Only 600 urban centers, with a fifth of the
worlds population, generate 60 percent of global GDP. In 2025, we still expect
600 cities to account for 60 percent of worldwide GDP but the cities wouldnt
be the same. Over the next 15 years, the makeup of the group of top 600 cities
will change as the centre of gravity of the urban world moves south and even
more decisively, east. Companies trying to identify the most promising
growth opportunities need to be able to map this movement and spot the
individual cities where their businesses are most likely to thrive.
It is therefore imperative that counties factor in measures to leverage the urban areas
within their counties as engines of economic growth. In leveraging urban areas as
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instruments of growth, care should be taken to ensure that there is effective linkage
between these urban areas and their rural hinterlands, where many Kenyans will still
reside. This will also require that an overarching National Urban Growth and
Development Framework be put in place to rationalise and coordinate urban
development issues within and between counties, but also across the whole nation.
The concern for us is that of aligning service delivery to the desired developmental
outcomes.
2.6.2 Growing and Sustaining County Cooperative Competitiveness
The ability of the new counties to create wealth and enhance welfare outcomes of
their citizens will depend on how well they are able to leverage the endowments,
natural and otherwise, within the national, regional and global operating contexts.
Attracting the jobs that improve welfare for citizens will not be achieved through lone
ranger efforts. Experience elsewhere suggests that to prosper, a nation, and therefore
our counties must leverage four key assets innovation, human capital,
infrastructure and quality places
16
. Given the level of inequalities between and within
Kenyan counties as well as close kinship linkages between some of them, it is feasible
to consider competitiveness and complementarities within clear cooperative and
collaborative frameworks. Such an arrangement responds to the application of the
cluster concept to regional and national competitiveness.
The adoption of the cluster approach to industrialization, value addition for
agriculture and industry as well as the special economic zones as national
mechanism for the growth of competitive industries implies that counties must of
necessity fit within this framework. Within the confines of the CoK 2010, counties
will have to adapt spatial forms that will be most appropriate to their development
needs. Literature identifies a number of spatial forms, including
17
:
corridors, in which settlements take a linear form;
megacity-dominated clusters, in which expansion of a dominant megacity
engulfs surrounding areas;
sub-national regional clusters, in which no single settlement dominates
development in the region; and
trans-border clusters, in which adjacent settlements are located in different
countries, but form a contiguous sphere of economic influence.
2.6.3 Paradigm Shift in County Public Service Delivery
The effectiveness and efficiency with which public services are provided to support
inclusive growth, economic innovation and competitiveness and maintaining quality
places will be key to the success of the counties. Public services have been defined as
any of the common, everyday services provided by national and local governments
with the aim of improving social welfare. They are used jointly by many citizen-
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consumers simultaneously and users cannot readily be excluded. Market mechanisms
of demand and supply are inadequate for supplying public goods and services. Hence,
collective (i.e., government) action is needed, to pay for these services and to
distribute them, that is, to allocate both the costs and the benefits.
The imperatives of effective and efficient public service delivery include the need for
effective, integrated economic and spatial planning, appropriate financing/funding
mechanisms, sound service management practices, good governance, and monitoring
and evaluation. A key prerequisite is definition of the appropriate service levels,
including answering the question of to whom the services should be provided. In
addition, the issue of what level of government will be responsible for which function
is pertinent.
Global experience suggests that assigning service delivery functions and therefore
revenue and expenditure assignments, is a fine balance. How this is achieved will be
key in dealing with challenges in delivery of public services under the old
constitution. We therefore argue that for Kenya the issue of service organisation and
responsibility and therefore the organisation of public finances is important, with the
key concerns being efficiency, effectiveness and appropriate citizen participation.
2.6.4 Building and Maintaining Quality Places
Building quality places is a priority for the counties. The operative question is
simple: why would a citizen, a visitor or investor choose one locality over another for
their engagement? Literature shows that the quality of a place is key to attracting the
necessary human and other resources to achieve desired development outcomes. The
Unite Kingdom, in its effort in this regard says that
18
:
places where people live have a profound effect on their quality of life and
life chances. This takes effect in a range of ways through, for instance, crime
levels, pollution levels, employment opportunities, social ties and opportunities
for community engagement, and the range and quality of local services,
transport links and green space. Quality of place can then be understood as
that subset of factors that affect peoples quality of life and life chances through
the way the environment is planned, designed, developed and maintained.
One of the reasons Kenya and many of its localities has been successful is the
perception regionally that they offer better places for citizens and visitors to have
gainful employment, to live and engage in leisure activities. The attributes that are
key in achieving this sense include access to opportunity, access to excellent learning
facilities, and a sense of security for person and property amongst others. Both from
the demands of the CoK 2010 and the imperatives of a competitive economy, as well
as the rapidly expanding population it will be important for the counties to prioritize
the realization of such quality places.
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Figure 2.3: Challenge of Kenyas Population Dynamics

As illustrated in Figure 2.3, Kenyas current population is heavily settled along a 200
km buffer zone along the Kenya-Uganda railway line in the region characterised by
high rainfall. With the anticipated growth in the population, there will be immense
pressure on the available land in this high rainfall region to provide for residential,
commercial, industrial and environmental protection needs. It then becomes
imperative to begin to think about the spatial forms that will yield the quality places
needed in within these circumstances, including measures to open up the medium
and low rainfall areas with appropriate physical, social and institutional
infrastructure. Another challenge in this regard is the mobility pattern of the
population, where the major urban areas are largely male and youthful.
Thus, creating the requisite quality places will have to deal with matters related to the
spatial form of places, diversity of the populations and therefore of neighbourhoods,
provision of schools, hospitals, energy, water, transportation and security. This will
have to take due cognizance of climate change and environmental constraints facing
the nation and each respective county.
2.6.5 Managing Counties for Prosperity
The Constitution of Kenya 2010 has set out the broad structure for governance
including some of the key principles to guide governance. In respect of local
governance, the counties are the main, recognised form of government. However, the
Page | 22
CoK 2010 is largely silent on what happens below the county government, although
as per Article 184, there is an implicit expectation that legislation on the governance
and management of urban areas and cities will be formulated and that this should be
effected in a manner that promotes or responds to urbanisation as a major
demographic issue, but also a key growth driver. Given the imperative of dealing
with governance of urban areas, the need for inclusivity and the imperative of
economic growth, governance of counties must not only respond to these issues, but
should be cost effective. This is important in ensuring that counties are able to
channel maximum resources to development initiatives, away from recurrent
expenditures.
2.7 CONCLUSIONS
The new constitution seeks to reverse the centralised non participatory governance
paradigm by institutionalizing an embracing governance system and a leadership
with integrity. It does this primarily by: establishing an enabling normative
framework; creating relevant governance institutions; creating checks and balances
on the exercise of executive power; providing for facilitative legislation; enhancing
public participation in governance as a bulwark against abuse of power and
tightening the process of recruitment, and retention of critical public officers.
Figure 2.4: Critical Success Factors for Devolution in Kenya

To achieve the objects of devolution, the key building blocks, founded on effective
citizen participation, devolved governance will require effective political parties,
Page | 23
operations founded on ethics and values, effective development planning, a skilled
human resources and sustainable funding as illustrated in Figure 2.2.
2.7.1 Effective Political Parties
Political parties have been described as the soul of politics. Political parties aggregate
social interests and also present candidates for election to political office. The
struggle for multi-party politics, popularly known as the second liberation was
primarily about the re-introduction of plural politics. Political parties in Kenya
continue to exhibit serious weaknesses which consistently undermine the process of
democratisation. Among the weaknesses are: lack of ideology and hence mobilisation
on ethnic basis; Lack of internal democracy; lack of both financial and human
resources for effective administration; elite /founders capture; electoral violence and
corruption.
Because political parties process candidates for presentation to the public for
election, parties weaknesses have been reflected in the choices of candidates
presented for elections to the legislature and the local authorities. Persons who do not
deserve to be in these institutions find their way through weaknesses in the
nomination processes. Some corrupt party leaders, in order to avoid a competitive
nomination process, buy voters support while yet others are given direct nominations
to parliament or local authorities even after failing to be elected.
Given the immense responsibilities conferred upon political parties under the
constitution in the generation of leadership for the county governments it will be
necessary to fundamentally reform political parties so that they can play their role of
cultivating effective leaders of the devolved government. Article 91 and 92 provide
for the nature, roles and conduct of political parties under the new constitutional
dispensation. Legislation under Article 92 should be fast-tracked and enacted. It
should provide for:
regulation of political party funding;
internal democracy in political parties;
the conduct of party elections through an independent authority;
effective sanctions against offending political parties including deregistration
and barring from participation in elections as well as disqualification of
offending party candidates.
The electoral commission should be empowered to enforce the revised Political
Parties Act
19
and a powerful dispute resolution tribunal should be created.
2.7.2 Leadership, Ethics and Integrity and the Constitution of Kenya
2010
Needless to say the devolved government will not succeed unless it embraces good
governance. Governance has consistently been identified as the greatest obstacle to
Page | 24
sustainable development. The UNDP defines Governance as the exercise of political,
economic, administrative and legal authority in the management of a countrys
public affairs at all levels. It comprises the mechanisms, processes and institutions,
through which citizens and groups articulate their interest, exercise their legal
rights, meet their obligations and mediate their differences
20
.
Institutions such as the Executive, Parliament, the Public Service, Judiciary, and
Political Parties are the pillars of the countrys governance. When these institutions
are led by unethical leaders or develop unethical organizational cultures, bad
governance ensues. Ethical leadership is therefore critical to the reform of our
governance.
The Mo Ibrahim Index of African governance has identified five areas under which
the quality of governance of a country can be assessed. These are: safety and security;
rule of law, transparency and corruption; participation and human rights; sustainable
economic opportunity; and human development. Kenya falls short on most of these
qualities and the CoK 2010 has begun addressing some of the issues.
The governance challenge under the new constitution revolves around how to
cultivate an ethical leadership in both the political arena and the bureaucracy. This
leadership must be cultivated for both the national and county governments. Without
good leadership the institutions, processes and systems created under the CoK 2010
and the enabling policy and legislation will be subverted and undermined. Corruption
and unethical conduct will also be devolved to the county level.
Leadership primarily refers to the ability to influence others to act towards a desired
goal. Ciulla contends that ethics have always been a focal point in scholars
definitions of leadership
21
. Ethical leadership refers to leadership founded on values
and that advances the public interest for the benefit of the majority. Its main
characteristics are:
It lays emphasis on moral conduct, duty and judgment.
Leaders are people of the highest integrity, committed to building enduring
organizations.
Leaders have a deep sense of purpose and are true to their core values and
have the courage to build organizations that meet the needs of their followers
and recognize the importance of their service to society.
Leadership impacts on organizational behaviour and on the surrounding
society.
Leaders make decisions with the knowledge that they are accountable for
outcomes
It requires both ethical behaviour and ethical decision making and such
conduct is required of both individuals and organizations
22.

Page | 25
Ethical leadership describes leadership that is honest, trustworthy, credible,
incorruptible, and courageous
23
. This kind of leadership requires the leader to be
fully convinced that the goals (teleological ethics) as well as the means
(deontological ethics) he is pursuing are good for the people he is leading and the
willingness to risk or sacrifice his own interests, comfort or convenience for the
greater good. To operationalise the leadership, ethics and integrity provisions of the
Constitution particularly in regard to the devolved government the following
measures among others will be necessary:
Enactment of enabling legislation under the various chapters including
Chapter Two ( Article 10) ; Chapter Four (Bill of Rights); Chapter Six, Chapter
Seven (free and fair elections, political parties), Chapter Eight (recall, public
access and participation), Chapter Nine (impeachment); Chapter Eleven
(removal of governor, suspension of county governments, qualifications of
county assembly members, public participation and county assembly powers);
public finance (accounts and audit, procurement of goods and services; public
service (values and principles of public service, staffing of county governments,
protection of public officers).
Development of appropriate policy to ensure the emergence and sustenance of
good governance and ethical leadership. Among such policies are the
National Value System Policy and the National Anticorruption
Policy. These policies should operate at all levels of government
Establishment of critical leadership and integrity institutions. Certain key
institutions will have to be created to ensure that the objectives of the
constitution are met. These include: the Ethics and Anti-corruption
Commission, the Ombudsman, the Police Oversight Authority, the
new Public Service Commission, the Judicial Service Commission
and a powerful Regulator of Political Parties. All these institutions
must have mechanism to operate at the county level. This could be through
devolved offices or the delegated processes within the county establishment.
Creation of an informed, active citizenry through a sustained National
Civic Education Programme. A national policy and long term
programmes for civic education should be developed by the national
government as part of its constitutional obligation to create capacity for the
devolved government. This should be anchored in legislation.
Capacity building for the political leaders at the county level to effectively and
efficiently deliver services of the county government. Systematic and
institutionalised Capacity building for the county political leaders should be
required by legislation as part of the transition measures. Government
institutions such as the Kenya Institute of Administration should be obligated
Page | 26
to undertake a crash programme for the first crop of leaders of the county
governments within the first one year after elections.
Need for an urgent and immediate capacity building programme for non-state
actor organizations particularly CBOs and Councils of Elders amongst others
to participate effectively in governance processes at the county level and hold
leaders accountable at that level. This should also be provided for by
legislation. Both the national government and county government should be
obligated to budget for continuous capacity building
2.7.3 Unity in Diversity
Kenya is a diverse country in many respects, ranging from geographical and rainfall
endowments to population distribution amongst others. Of critical concern is the
extent inequality in developmental terms creates social and political tensions that act
as a constraint to economic development. Some of the challenges of county
governments will be to:
ensure that national unity is upheld and maintained; and
promote inclusive growth, while ensuring economic growth.
Answers to these and other critical questions will require that a close and symbiotic
partnership be established between the county and national governments as well as
the private sector focusing on growing competitive and innovative county economies
in a manner that builds a united Kenya.
2.7.4 Skilled Human Resources
A review of developmental discourse suggests that the human resource, appropriately
skilled is key to harnessing other endowments or lack thereof to drive development.
It will be important that national and county governments, working in concert, move
towards equalising the level of human resource skills across and within the counties.
2.7.5 Sustainable and Equalising Funding
Given the diverse developmental conditions in the country, it will be critical, and in
adherence to the need to build a more equal society the funding mechanisms and
instruments should not only ensure a predictable and sustained flow of funds to
counties, they should also ensure that county governments are actively directed to
ensure that revenue due is collected.
2.7.6 Citizen Participation
The Constitution of Kenya, 2010 seeks to ensure effective citizen participation in all
facets of governance, to which the county governments must respond. The
importance of participatory governance is embedded in almost all chapters of this
report with one chapter fully dedicated to this theme.

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3 CONSTITUTIONAL FOUNDATIONS OF DEVOLUTION
IN KENYA
3.1 CONCEPT OF A CONSTITUTION
A constitution is the instrument or law that organizes and manages governance and
state power. It defines, distributes and constrains the use of state power. It is a power
map to be followed in constructing a society and running the affairs of state. There
are two approaches to the organization of governance and management of state
power.
One is the single-dimensional approach which follows a single horizontal dimension
in its organization of governance and state power. It produces a centralised system
and structure of government and is based on centralization and concentration of
power. The second is the multi-dimensional approach which organizes and manages
governance as well as state power along multiple lines. It defines, distributes and
constrains the use of state power along multiple lines. It combines vertical and
horizontal dimensions and forms the foundation of devolved systems and structures
of government. It is founded upon the concept of decentralization and devolution of
power.
According to Article 10 of the constitution, which sets out the values and principles of
governance, devolution and sharing of power is identified as one such value and
principle that should guide our governance system. This means that the Kenyan
people have settled for a multi-dimensional approach to the organization and
management of governance and state power. They have chosen a devolved system of
government which we must therefore seek to clearly understand.
3.2 THE CONCEPT AND THEORY OF DEVOLUTION
A devolved system of government follows the multi-dimensional approach to the
organization and management of governance and state power. It seeks to organize
governance and manage state power both vertically and horizontally and thus to
define, distribute and constrain the use of state power both vertically and
horizontally. Under this system, one creates two or more levels of government that
are co-ordinate, but not subordinate to each other. None of the levels of government
is a mere agent of the other. Each is created and protected by the constitution. The
functions each performs are set out and defined by the constitution. The resources
each uses to discharge these functions are also provided for in accordance with
constitutional provisions.
The system combines self-governance and shared governance at the local and
national levels respectively. The essence of this is that at the local level the people are
allowed a certain flexibility within which they can make decisions that are unique to
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themselves and their locality. The laws they make are only applicable to their county
and do not apply and are not enforceable in other counties. They are allowed a
measure of self-governance at this level but at the national level, decision-making is
shared. Therefore, the laws which are made at this level are applicable to and
enforceable in the whole country. Because of this there must of necessity be some
shared institutions and infrastructure through which the shared decisions have to be
made. But institutions can also be perceived as shared not because they participate in
shared decision-making but because they serve and render services to both levels of
government.
One of the most important shared institutions in the architecture and design of a
good devolved system of government is the bicameral parliament, in which, one
component is conceptualised as belonging to and representing the national level of
government while another component is conceptualised as belonging to and
representing the sub-national level of government. This design is informed by the fact
that legislation making at the national level is largely supposed to be shared between
national and county levels of government. Quite apart from the bicameral parliament
the constitution of Kenya is designed with quite a number of other institutions which
are conceptualised as shared in nature. These include independent commissions and
offices.
3.2.1 Independent Commissions as Shared Institutions
The constitution of Kenya establishes quite a number of independent commissions
which in a number of respects can be perceived as shared institutions. Most of these
commissions render services to both levels of government. These commissions are so
important in the operationalization and functioning of devolution that they cannot
risk losing their independence and becoming controlled by only one level of
government. As such, they are to be regarded as shared institutions which must be
answerable and accountable to both levels of government. They must never regard
themselves as institutions of the national level of government but as independent
state organs.
The Commission on Revenue Allocation which is established by Article 215 of the
constitution has its functions spelled out by Article 216 as including the generating of
recommendations for the vertical and horizontal sharing of the revenue raised
nationally. The recommendations provide a framework for the equitable shares for
both levels of government and for each county.
The Ethics and Anti-Corruption Commission referred to by Article 79 is mandated to
ensure compliance with and enforcement of the provisions of the integrity standards
set out in chapter six of the constitution which deals with leadership and integrity.
Chapter six of the constitution sets out integrity standards for leaders not only at the
national level of government but also the county level of government. The chapter
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refers to leaders in terms of state officers. But Article 260 defines the concept of a
state officer as including officers serving the county level of government. The Ethics
and Anti-Corruption Commission to be established in terms of Article 79 will
therefore be enforcing the integrity standards for not only the national level of
government but also the county level of government.
The Human Rights and Equality Commission, which is established by Article 59 of
the constitution is conferred with functions which to a large extent play an important
role in the protection and enforcement of human rights at both the national and
county levels of government. An analysis of the functional distribution to the two
levels of government points at the fact that greater responsibility to ensure that the
socio-economic rights are fulfilled falls on the county level of government. To the
extent that the Human Rights and Equality Commission is required to enforce even
the socio-economic rights, the commission will be enforcing such rights against both
the national and county levels of government.
The National Land Commission is established by Article 67 and mandated to manage
public land on behalf of not only the national government but also the county
governments. The commission is also supposed to recommend a national land policy
to be used in the administration and management of land by both levels of
government. In addition, the commission will have the functions of assessing all the
taxes on land and other immovable property and to monitor and have oversight
responsibilities over land use planning throughout the country. Through these
functions, the National Land Commission will be rendering services to both national
and county levels of government.
The Public Service Commission which is established by Article 233 of the constitution
has its functions set out by Article 234. These include the promotion of the values
and principles referred to in Articles 10 and 232 throughout the national public
service; and the evaluation and reporting to the President and Parliament regarding
compliance within the public service with the values and principles set out in Articles
10 and 232. The commission is also mandated to hear appeals from county public
servants. As such, it is a shared institution of both the national and county levels of
government.
The Salaries and Remuneration Commission which is established by Article 230 has
the functions of setting and regularly reviewing the remuneration and benefits for all
state officers; and the advising of the national and county governments on the
remuneration and benefits of all public officers.
Finally, the Independent Electoral and Boundaries Commission which is established
by Article 88 responsible for various matters provided for by the constitution.
Fundamental among these responsibilities is the conduct and supervision of
referenda and elections to any elective body or office established by the constitution,
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and any other elections as may be prescribed by an Act of Parliament. The particular
activities encompassed in this function are the continuous registration of citizens as
voters; the regular revision of the voters roll; the delimitation of constituencies and
wards; the regulation of the process by which parties nominate candidates for
elections; the settlement of electoral disputes, including disputes relating to or arising
from nominations but excluding election petitions and disputes subsequent to the
declaration of election results; the registration of candidates for elections; voter
education; and the facilitation of the observation, monitoring and evaluation of
elections. All these activities are to be done in respect of elections at both the national
and county levels of government.
3.2.2 Independent Offices as Shared Institutions
Quite apart from the commissions, there are also independent offices which are also
conceptualised as shared institutions. Indeed these offices will be expected to render
very important services to the Kenyan people; and by all means cannot be seen as
offices belonging to and controlled by one level of government. They must be seen as
having been conceptualized and designed as shared institutions, which serve both
levels of government and ought to be completely independent of the two levels of
government.
The first among these offices is the controller of budget, which is established by
Article 228 of the constitution, sub-Article (4) of which confers on the controller of
budget the function of overseeing the implementation of the budgets of the national
and county governments by authorizing withdrawals from public funds under Articles
204, 206 and 207. Under sub-Article (6) the controller of budget is required to
submit to either house of parliament, after every four months, a report on the
implementation of the budgets of both the national and county governments.
The second is the Auditor-Generals office, which is established by Article 229 and
mandated by the constitution to audit the accounts of both the national and county
levels of government. Article 229(4) requires the Auditor-General to within six
months after the end of each financial year, audit and report on the accounts of the
national and county governments; the accounts of all funds and authorities of the
national and county governments; the accounts of all courts; the accounts of every
commission and independent office established by the constitution; the accounts of
the national assembly, the Senate and the county assemblies; the accounts of political
parties funded by public funds; the public debt; and the accounts of any other entity
that legislation requires the Auditor-General to audit.

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3.3 OPERATIONALIZATION OF SHARED INSTITUTIONS
The operationalization of these institutions and offices ought to recognize and
emphasize the fact that these institutions and offices are shared. A number of factors
may need to be taken into account in this exercise. First and foremost, their
composition may be made representative of both levels of government to ensure their
independence and to avoid their being unduly controlled by only one level of
government. This can be done with those whose composition is supposed to be
provided for by an Act of Parliament. Secondly, processes of appointing their
members could be structured in such manner as to require approval by both houses
of Parliament. Interviewing panels could be made to include representatives of
county governments or associations of counties.
Thirdly, in the daily operations of these shared institutions, provision could be made
calling for a cooperative relationship between them and the county governments as
well as the national government. Such cooperation should involve consultation and
negotiations with county governments or associations of county governments
whenever certain decisions have to be made. These needs should inform the
development of policy, legal and
institutional infrastructure for
intergovernmental relations.
Finally, in their organization and
discharge of their functions, they must
be decentralized to ensure that the
services they render are accessible in
most if not all parts of the country.
Article 174 which provides for the objects
of devolution recognizes the need to
decentralize all state organs, their functions and services from the capital city to all
the parts of the country.
3.4 THE FORM OF DEVOLUTION
The starting point is to appreciate the fact that there is no uniform form of
devolution. Different variants exist and each country for one reason or another
adopts a variant that is unique to itself. This therefore requires that we examine the
Kenyan devolution to be able to know its form and to understand the relational
principles informing it. Article 6(2) describes the governments at the two levels as
being distinct and inter-dependent and which are required to conduct their mutual
relations on the basis of consultation and cooperation. This is therefore a devolution
not based on the principle of absolute autonomy but instead, on that of inter-
dependence and cooperation. In form therefore, it is a system that combines a certain
measure of autonomy and inter-dependence. The end result of this combination is
PROPOSALS ON OPERATIONALISING
SHARED INSTITUTIONS

Shared composition of the institutions to
secure independence
Approval of key office bearers by both
houses of Parliament
Operating mechanisms incorporating
consultation mechanisms with both levels
of government
Decentralisation of operations
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what may be called a cooperative system of devolved government. Cooperative
devolved government may be said to be founded upon three relational principles;
namely, the principle of distinctness; the principle of inter-dependence; and the
principle of oversight.
3.4.1 The Principle of Distinctness
When defining devolution it was observed that under this system of government, the
constitution creates two or more levels of government which are coordinate and not
subordinate to each other. Article 6(2) provides in this regard that the governments
at the national and county levels are distinct. This connotes a measure of equality and
autonomy among the two levels at least in the sense of each one of them being
created by the constitution as opposed to being created by another level of
government. None is created and therefore can be abolished by another level of
government. However, as will be noted when discussing other principles, this is not
complete autonomy as the governments are also inter-dependent.
Distinctness in this sense rules out the concept of hierarchy as a relational principle.
In effect, the levels of government must have the freedom to make decisions in the
functional areas assigned to them by the constitution without interference from the
other level of government.
At the relational level, this principle calls for a certain measure of mutual respect
among the two levels of government. Article 189(1)(a) in this regard requires
government at either level to perform its functions, and exercise its powers, in a
manner that respects the functional and institutional integrity of government at the
other level, and respects the constitutional status and institutions of government at
the other level and in the case of county government, within the county level.
3.4.2 The Principle of Inter-dependence
When defining devolution, it was observed that this is a system which combines self-
government at the local level and shared government at the national level. Because of
this concept of shared-ness the system in its relational functioning becomes inter-
dependent. Inter-dependence is necessitated by a number of factors. Firstly, is the
fact that the consumers of the services rendered by the two levels of government are
the same citizens of Kenya although located in different parts of the country.
Secondly, in the distribution of functions, quite a number of functions are concurrent
in nature. Thirdly, others functions are assigned on the basis of national government
formulating national policy and setting national standards while the county level is
assigned the implementation functions. Inter-dependence then becomes the
foundation of the concept of cooperative government.
Although Article 6(2) provides that the governments at the national and county levels
are distinct, it also goes further and adds that they are also inter-dependent. Because
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of this, Article 6(2) further adds that, as such, the governments should conduct their
mutual relations on the basis of consultation and cooperation. According to Article
189(1)(b) & (c), Inter-dependence in this case requires that the two levels of
government not only assist, support and consult each other and, as appropriate,
implement the legislation of the other level of government; but also liaise with each
other for the purposes of exchanging information, coordinating policies and
administration and enhancing policy. At the relational level, cooperative government
therefore requires that there be intergovernmental dialogue on the basis of
consultation and cooperation which may even lead to the setting up of joint
committees and joint authorities.
It has already been noted that in the assignment of functions one approach that is
often used is to assign to the national level of government the functions of
formulation national policies and setting of the national standards while the county
level of government is assigned the function of implementing those policies and
standards. Because of this the policy formulation and the standards setting functions
of the national government must include a certain measure of monitoring and
evaluation, which creates an oversight relational aspect.
From this perspective and the fact that the national government legislates for the
whole country while the counties are expected to operate within the framework of this
national legislation, the national level of government is conferred with a measure of
oversight. But it must be noted that this does not create a hierarchical relationship
between national and county levels of government since the national legislature is a
shared institution. This gives the county levels of government a role in the
formulation of policy and the setting of standards at the national level. Oversight
does not therefore oust the principles of distinctness and inter-dependence.
Cooperative devolved government will require that as a country, we move away from
our usual adversarial approach to issues and embrace a system of consultation,
negotiation and consensus building in the running of the affairs of state. A new
meaning of consultation and negotiation must be embraced. Intergovernmental
relationships between and among governments therefore, should be based on and
informed by these principles of cooperative government. The vertical relationships
between national and county governments must be on the basis of cooperative
government.
Similarly, the horizontal relationships among various county governments must be
based on the principles of cooperative government. Article 189 already referred to
above elaborates on this concept of cooperative government. It requires either level of
government to observe a number of things.
First, government at either level should perform its functions, and exercise its
powers, in a manner that respects the functional and institutional integrity of
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government at the other level, and respects the constitutional status and institutions
of government at the other level and, in the case of county government, within the
county level.
Secondly, government at either level is required to assist, support and consult and,
where appropriate, implement the legislation of the other level of government.
Thirdly, government at either level should liaise with government at the other level
for the purpose of exchanging information, coordinating policies and administration
and enhancing capacity. Fourthly, government at each level, and different
governments at the county level, are required to co-operate in the performance of
functions and exercise of powers and, for that purpose, may set up joint committees
and joint authorities.
3.5 OBJECTS AND PRINCIPLES OF DEVOLUTION
In settling for and establishing a devolved system of government, the new
constitution at Article 174 identifies a number of things as the objects of devolved
government. These are the promotion of democratic and accountable exercise of
power; the fostering of national unity by recognizing diversity; the giving of powers of
self-governance to the people and enhancing of the participation of the people in the
exercise of the powers of the state and in making decisions affecting them; the
recognizing of the right of communities to manage their own affairs and to further
their development; the protection and promotion of the interests and rights of
minorities and marginalized communities; the promotion of social and economic
development and the provision of proximate, easily accessible services throughout
Kenya; the ensuring of equitable sharing of national and local resources throughout
Kenya the facilitation of the decentralization of state organs, their functions and
services, from the capital of Kenya; and the enhancement of checks and balances and
the separation of powers.
On the other hand Article 175 sets out a number of principles meant to guide the
operations of the devolved governments. The county governments are required to be
based on democratic principles and separation of powers. They must be availed
reliable sources of revenue to enable them to govern and deliver services effectively
and they must ensure that each of the two genders have at least a third of the
members of representative bodies in the county.
3.6 ARCHITECTURE AND DESIGN OF DEVOLUTION IN KENYA
The Success of devolution depends on a proper architecture and design of the system.
A properly designed system will necessarily have the following characteristics:
1. Constitutional creation of two or more levels of government with each having
sovereignty and directly impacting upon its citizens. The first design question
one must therefore address is that of the total number of orders or levels of
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government one would like to create. A well designed devolved system would
normally have three levels of government; namely, the national, sub-national
and local government. Many of the old federal and good devolved systems are
designed in this manner. The USA for instance, has the Federal, State and
County or local government levels; Germany has the Federal, Lander and local
government levels; and South Africa has the National, Provincial and
Municipal levels of government. In most of these systems the third level of
government is normally the traditional local government level which has
developed into two streams of rural and urban local government.
2. Constitutional creation of geographic units of governance at the sub-national
level into which the country is to be divided and the clear delineation of their
boundaries. The second design question one has to confront is the
determination of the total number of geographic units of devolution into which
the whole country should be divided. A number of scholars have suggested
certain factors which may need to be taken into account when addressing this
question. The scholars observe that the more comparable the constituent units
are in size, institutional structure, administrative capacity, economic viability
and financial strength, the more stable the system will be as a whole. It is
emphasized that a proportion be observed between the total territorial size and
the number of the constituent units. The larger the territory, the greater the
number of tolerable constituent units that can comprise the devolved system.
Efforts ought to be made to avoid the reality of operational dangers of having
too many constituent units.
3. A formal constitutional distribution of governance and development functions
of each level of government clearly delineated and ensuring some areas of
autonomy for each. In the assignment of functions, it will be observed in a later
chapter of this report that a number of principles are relevant. These include
the principles of subsidiarity, transferability and the three categories of
functions; namely, the exclusive, concurrent and residual functions.
4. Constitutional provisions setting out clear rules for the allocation of resources
among the levels of government ensuring that each level of government has
sufficient resources to enable it discharge its responsibilities. The main
operational principle in this respect is that resources must follow and match
responsibilities.
5. Constitutional establishment of governance institutions at each level of
government with designated representation of distinct regional views within
the national-policy making processes and institutions. Notably, the concept of
shared decisions necessitates the creation of some shared institutions.
6. A supreme written constitution that is not unilaterally amendable by any one
level of government, but instead, requires the consent of a significant
proportion of the constituent units. Since we have noted that the protection of
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the two levels of government is rooted in the fact that each is created by the
constitution; the functions they perform are assigned by the constitution; and
the resources the use are provided for by the constitution, it would undermine
devolution if only one level of government were to be empowered to amend the
constitution. To do this would enable such level to use constitutional
amendments to abolish or adversely adjust the position of the other level of
government. Chapter sixteen which deals with amendments to the constitution
has taken this into account and ensure that only one level of government can
alone amend the constitution. Through the bicameral parliament the county
levels of government have been given an opportunity to participate in
constitutional amendments.
7. A constitutionally entrenched system of cooperative government with
constitutional processes and institutions for facilitation of intergovernmental
cooperation and collaboration for the areas where governmental
responsibilities are shared or inevitably overlap.
8. A constitutionally entrenched system of intergovernmental relationship with
provision for dispute resolution, and provision for an umpire, such as the
Constitutional or Supreme Court to rule on any disputes between
governments.
These factors which go into the architecture and design of a good devolved system
will be discussed in detail in some of the subsequent with efforts being made to set
out the ideal and general approach in many other places; followed by an analysis of
how the constitution of Kenya has handled them. But before this discussion is done
one needs to appreciate that devolution cannot be properly implemented in isolation
from other very important aspects of the constitution. The constitution is a
comprehensive totality that is interlinked, interlocked and interdependent. Indeed,
devolution permeates all the other parts of the constitution. Identified among these
very important aspects is the concept of the value foundations of the constitution.
These are very important because they are overarching and permeate all other
aspects of the governance system, including devolution.
3.7 THE VALUE FOUNDATIONS OF THE CONSTITUTION
The new constitution is founded on a very strong value system. It seeks to identify,
and establish certain values as the foundation of the governance system that the
Kenyan people have put in place. These values, it is expected, should lead to a system
of good governance. It will be argued that the implementation of devolution and the
operation of the county governments ought to be informed by these values. There are
various chapters and Articles of the constitution which can be said to be focused on
putting in place a value system providing a framework within which the governance
institutions are expected to operate.
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Articles 2(6) and 21(4) lay the basis for the application of obligations arising from
treaties, conventions and other international instruments to which Kenya is
signatory. Thus in implementing devolution, all proposals must reflect on
implications of these obligations on policies, laws and regulations that will impact on
the implementation of devolved government
24
. However, in applying them it must be
ensured that these are not inconsistent with the Constitution of Kenya 2010. One of
the key challenges then is to review all of these and the implications they could have
on devolved governments, especially in respect of implications they have on the
manner in which power is devolved and assigned to lower levels of government in
promoting democracy and good governance.
Article 10 which provides for the national values and principles, of governance is
foundational in this respect. First and foremost, the Article identifies patriotism,
national unity, sharing and devolution of power, the rule of law, democracy and
participation of the people. Secondly, the Article also identifies human dignity,
equity, social justice, inclusiveness, equality, human rights, non-discrimination and
protection of the marginalized as another set of national values. Thirdly, good
governance, integrity, transparency and accountability are also identified as another
set of core values. Finally, the Article identifies and sets apart sustainable
development as a central value in this new system. A number of core values
considered as overarching and applying to both national and county government can
be identified. These are the concept of government in the service of the welfare of the
people normally incorporated in the principle of republicanism; the need for servant
leadership founded on high integrity; the concept of participation, inclusiveness and
protection of minorities and marginalized groups; the respect and promotion of
human rights as a basis of governance; and the very important role of political parties
in governance.
3.7.1 The Fundamental Values and Principles of Good Governance
One of the most important values which runs through and must inform the entire
governance system is the concept of government as an instrument in the service of
the welfare of the people. This value stems from the concept of a republican system of
governance. Historically the theory and concept of a republic is said to have
originated in Rome where it was introduced in opposition to Gaius Julius Caesar and
where it was referred to as Res Publica, meaning public business or public property.
It referred to a system of government meant for the common good.
In the various attempts that have been made to define republicanism and explain
what is constituted by the concept, a lot of emphasis has been put on mans rejection
of misery and the pursuit of his own welfare as being at the core of republicanism.
Republicanism is given a definition that rejects not only slavery but also monarchy as
a system of governance. The people rejected oppression, dictatorship and monarchy
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in preference to self-determination and self-rule. Republicanism is therefore
presented as a system of self-rule in which the people play a central role in two ways.
One, the people emanate all the authority which the leaders exercise on behalf of the
people. Two, all governments are established, instituted and meant to serve the
welfare of the people. The concepts of social contract, the will of the people and the
sovereignty of the people exemplify this theory of republicanism; of self-rule and self-
determination.
In recent modern times, James Madison in his Federalist paper No. 39 defines
republicanism as being a system of government in which, all authority to govern
derives from the people directly or indirectly. Those who administer that authority on
behalf of the people, do so during the pleasure of the people, during a limited period
of time and during their good behaviour. The essence of republicanism, therefore, is
that all authority derives from and belongs to the people.
When the people through the social contract theory establish governments and
delegate some of these authority and power to them, they do so for only one purpose;
service of the welfare of the people. Republicanism recognizes that governance is
representative in nature and therefore, demands for servant leadership. It calls for
leadership that does not usurp the power of the people and use it for their own
personal aggrandizement, but instead focuses on service to the welfare of the people.
Leadership is not supposed to use the authority and power of the people to
impoverish and destroy the people but to serve their welfare. Because governance is
representative, the challenge of contemporary constitution making is how to secure a
leadership of integrity which will focus all its efforts on serving the welfare of the
people and avoid a conflict between personal and public interests.
The constitution of Kenya establishes a governance system which recognizes a
number of the core values and principles of governance. These are one, the
sovereignty of the people as the source of all authority to govern. Two, that all
governments are established and instituted by the people to serve the welfare of the
people. Three, that those to whom authority of government is delegated to administer
on behalf of the people; do so during the pleasure of the people; during a limited
period of time; and during their good behaviour. Four, that openness, transparency,
and accountability as opposed to secrecy in governance is central. Five, that
leadership ought to be based on the principles of integrity and service to the people. It
is for this reason that Article 35 of the constitution makes provision for a right of
access to information held by the state. Similarly, Article 211(2) obligates the Cabinet
Secretary responsible for Finance to table in Parliament information about the level
of public indebtedness whenever the house so resolves.
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3.7.2 Sovereignty of the People
Article 4 declares Kenya a sovereign republic, which shall be a multi-party democratic
state founded on the values and principles of governance referred to in Article 10. The
preamble to the constitution on the other hand recognizes the concept of the
sovereignty of the people. It notes that we the people of Kenya are sovereign and
have an inalienable right to establish and determine the form of governance of our
country. Article 1 declares that all sovereign power belongs to the people of Kenya
and shall be exercised only in accordance with the constitution. The people are
therefore sovereign and they normally express their will about how they would like to
be governed through the constitution.
When they do so, the constitution then becomes the supreme law. Sovereignty
therefore lies with the people and supremacy with the constitution as the expression
of the will of the people. Indeed, Article 2 provides for this supremacy, and declares
that no person may claim or exercise state authority except as authorized by the
constitution.
Article 94 establishes the legislative authority of the Republic and recognizes that this
authority derives from the people. Sub-Article 94(1) provides that legislative
authority of the Republic is derived from the people and, at the national level, is
vested in and exercised by Parliament. Sub-Article (2) on the other hand emphasizes
that Parliament manifests the diversity of the nation, represents the will of the
people, and exercises their sovereignty. Similarly, the chapter on the executive
describes executive authority as deriving from the people. Article 129(1) declares that
executive authority derives from the people of Kenya and shall be exercised in
accordance with this Constitution.
The chapter on the judiciary also establishes judicial authority as an authority
deriving from the people. Article 159(1) notes that judicial authority is derived from
the people and vests in, and shall be exercised by, the courts and tribunals established
by or under this Constitution. The constitution of Kenya therefore establishes a
governance system that recognizes the sovereignty of the people as an important
governance value. Devolved government must be implemented within a framework
which subjects government to the will of the people.
3.7.3 Service to the People
Once again, the preamble recognizes that in establishing and determining the form of
government, the Kenyan people intended it to serve only one purpose; the nurturing
and protecting the well-being of the individual, the family, communities and nation.
The executive chapter puts emphasis on this concept of service to the welfare of the
people and declares at Article 129(2) that Executive authority shall be exercised in a
manner compatible with the principle of service to the people of Kenya, and for their
well-being and benefit.
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Chapter six, which deals with leadership and integrity, recognizes this concept of
service to the people. Article 73 describes authority assigned to a State officer as a
public trust and provides that, such authority vests in the state officer, the
responsibility to serve the people, rather than the power to rule them.
Notably, service to the welfare of the people is done through proper management and
development of the resources to generate more and the equitable distribution of the
same to ensure that all the members of the society get their due share. The preamble
in this respect points out that we the people of Kenyan are respectful of the
environment, which is our heritage, and are determined to sustain it for the benefit of
future generations. For this reason, Article 60 establishes principles of land policy
that require that land in Kenya be held, used and managed in a manner that is
equitable, efficient, productive and sustainable.
The chapter on Public Finance also establishes very elaborate principles and
framework for public finance management. Article 201 sets out these principles in a
manner that would ensure that public finances are well managed for the benefit of the
Kenyan people to whom they belong. The chapter on Public service at Article 232 also
establishes very elaborate values and principles of public service.
These values also focus on delivery of public services in a manner that lays emphasis
on the principles of the welfare of the people. Similarly, the principles of national
security provided for at Article 238 focus on the same issue of service of the welfare of
the people. Sub-Article (1) declares in this respect that national security is the
protection against international and external threats to Kenyas territorial integrity
and sovereignty, its people, their rights, freedoms, property, peace, stability and
prosperity, and other national interests.
In all these cases emphasis is put on transparency, openness and accountability to the
people of Kenya. So as to be able to serve the welfare of the people, this system of
governance calls for responsible government and leadership. It calls for servant
leadership that is selfless, honest and committed to the service of the people.
Republican leadership must be a leadership of very high integrity and willingness to
deny itself for the sake of the people. The Kenyan constitution therefore sets out
certain integrity standards to be observed by its leadership.
3.7.4 Leadership and Integrity
If a republican system requires that those who administer the power of the people do
so during the pleasure of the people; during a limited period of time; and during their
good behaviour, a good constitution then ought to set out integrity standards against
which the behaviour of the leaders can be evaluated. Chapter six of the constitution
seeks to do this. It identifies and sets out certain integrity standards that, it is
believed, if well observed would lead to the proper service of the welfare of the people
by the leaders.
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Article 73(1) establishes these standards in the form of responsibilities of leadership
by pointing out that any authority assigned to a state officer is a public trust meant to
benefit the people. The Article emphasizes that it is a public trust to be exercised in a
manner that is consistent with the purposes and objects of the constitution;
demonstrates respect for the people; brings honour to the nation, to the office; and
promotes public confidence in the integrity of the office. The Article further declares
that the authority vests in the state officer the responsibility to serve the people,
rather than the power to rule them.
Sub-Article (2) then sets out the guiding principles of leadership and integrity. They
include selection on the basis of personal integrity, competence and suitability, or
election in free and fair elections; objectivity and impartiality in decision making, and
in ensuring that decisions are not influenced by nepotism, favouritism, other
improper motives or corrupt practices; selfless service based solely on the public
interest, and demonstrated by honesty in execution of public duties. Such selflessness
would also be demonstrated by the declaration of any personal interest that may
conflict with public duties. Also included in the principles of leadership and integrity
is accountability to the public for decisions and actions and discipline and
commitment in service to the people.
Chapter six also prescribes a standard of behaviour expected from a leader whether in
public and official life, in private life, or in association with other persons. Article 75,
demands that a state officer avoids any conflict between personal interests and public
or official duties; compromising any public interest in favour of personal interests; or
demeaning the office the officer holds.
On the other hand Article 76 addresses material and financial matters of the state
officer. Any gifts he receives while on an official occasion belong to the state and
should be turned over to the state. Similarly, state officers under Article 76(2) are not
allowed to maintain bank accounts outside Kenya except where legislation permits
them to do so. Article 77 establishes further integrity standards which restrict the
activities of a state officer. While in full-time employment, he is not supposed to
participate in any other gainful employment.
Appointed state officers cannot hold office in political parties. If retired and receiving
pension, they cannot hold more than two concurrent remunerative positions as
chairperson, director or employee of a company owned or controlled by the state or a
state organ. Article 78 restricts appointment and election to office to citizens.
On the other hand, Article 75(2) sets out the consequences for a person who
contravenes the integrity standards set out in this chapter. These include disciplinary
action relevant to the office and the contravention; and dismissal or otherwise
removal from office. The most important consequence however, is being disqualified
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from holding any other state office if a person has been dismissed or removed from
office for contravention of the integrity standards.
Under Article 80, parliament may enact legislation that provides for additional
penalties. This could include legislation for tracing and recovery of proceeds of crime.
Research indicates that the most effective way to fight serious economic crime is to
take the profit out of the crime. Legislation may also establish the Ethics and Anti-
corruption Commission to ensure compliance with these integrity standards.
At the architecture and design level, many constitutions seek to capture these
republican values and principles by providing for periodic elections, impeachment,
vote of no-confidence, power of recall, limited terms of office and any other manner
and method of removal from office for misbehaviour. Indeed, chapter six of the
constitution, which deals with leadership and integrity, is one of the design
mechanisms for giving effect to these fundamental values and principles.
A reading of the constitution indicates some of these values are provided for, in
respect of government at the national level. It will be important to bear in mind that
these values are relevant and meant to apply even to government at the county level.
In proposing policy and legislation to implement devolution, these values should be
regarded as overarching and be provided for in respect of county government.
3.7.5 Participation and Inclusiveness
Another very important value to pay attention to at both levels of government is that
of participation, inclusiveness and protection of minorities and marginalized groups.
The constitution is providing a major paradigm shift from a system of extreme
exclusion and marginalisation to a system that puts emphasis on inclusion and
participation of all sectors of the society in the affairs and benefits of governance.
Article 10 which sets out the values and principles of governance that bid all State
organs, state officers, public officers and all persons whenever they apply or interpret
the constitution; enact, apply or interpret any law; or make or implement public
policy decisions identifies participation and inclusiveness as being among these
values. Participation and inclusiveness should not be ends in themselves but means
to an end. They should not be restricted to playing a role in decision making but also
being involved and included in the benefits of governance and the sharing of
resources. That is why the Article also makes reference to equity and social justice as
values.
Participation, inclusiveness and protection of minorities and marginalized groups
should be recognised as binding both levels of government. They should be
understood as overarching values which must inform governance at both levels of
government. These values will need to be mainstreamed in many parts of the
constitution such as budgetary processes, planning processes, policy formulation
processes among others. Policy and legislative proposals in these areas will therefore
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make recommendations about how these values will be achieved at both national and
county levels of government. But because of the importance of this subject the
Interim Report has a separate chapter discussing the concept and mechanics of these
values.
3.7.6 The Important Role of Political Parties
Political parties are identified by the constitution as playing a very important role in
governance. They are an important vehicle for mobilization of the people and public
opinion. They nominate candidates for election to various elective and appointive
offices. Marginalized groups and women gain representation and participation to
certain important institutions such as parliament and the county assemblies as well
as the cabinet and the executive committee at the county level through nomination by
political parties. The parties will form governments at both levels of government and
will therefore drive the process of formulation of the governance and development
policies and priorities. Yet experience shows that political parties in Kenya are not
formed on the basis of ideology. They have not themselves developed principles of
democracy and good governance. Internal discipline and democracy are lacking. If
these maladies of political parties are not addressed in the process of the
implementation of devolution, the successful implementation of devolution will
suffer.
As proposals are made on devolution it should be borne in mind that there is need to
address these problems of political parties to ensure that the gains of the new
constitution are not undermined by the poor practices of political parties. As we
implement leadership and integrity, we should place some obligations on political
parties to ensure that in nominating candidates to leadership positions, they play a
role and ensure that the country and the counties get leaders of very high integrity
standards.
3.8 CONCLUSIONS
Kenyans have put in place a Constitution that affirms one nation, organised at two
levels of cooperative, independent and
interdependent governments. This by
and large implies that the relations
between the two levels will have to
respond to these imperatives.
The next chapters discuss in greater
operational details the architecture and design of devolution as envisaged in the
Constitution of Kenya.

OUTSTANDING ISSUES

Review of the implications of international
treaties and conventions on devolved
government
Identification of other shared institutions
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4 LEVELS AND UNITS OF DEVOLVED GOVERNANCE
4.1 INTRODUCTION
This chapter discusses the Kenya design of devolution which has two levels, National
and County governments, with a major focus on further decentralisation highlighting
units of County governments. Apart from this introduction, the chapter begins by an
overview of local governance highlighting the principles of local governance,
including decentralization followed by a discussion of the two levels of government.
This is followed by a section discussing cities and urban areas as units of governance.
The sub section presents the role of cities in development, context, classification, and
the city of Nairobi. The third sub section discusses the challenges of the 47 counties,
while the fourth sub-section pulls out policy and legal gaps and provides options and
recommendations. The last sub section concludes and highlights outstanding issues.
4.2 LOCAL GOVERNANCE
Governance debates revolve around centralization and decentralization highlighting
both the advantages and disadvantages of each of the governance systems. While it
has been acknowledged that experiences of decentralization irrespective of whether it
takes a devolution or de-concentration form have not been very successful, there is
consensus on potential benefits of decentralization, which include delivery of
improved services nearer to those being served and improving accountability.
Decentralisation, in particular devolution shifts points of service delivery from central
government to local governments resulting in significant changes in budget
allocations as well as service delivery.
4.2.1 Principles of Local Governance
Decentralisation, in particular devolution is assumed to facilitate cross sector
development tailored to local needs, but its impact on development varies
considerably depending on the circumstances of each case including the level of
devolution, and the local government capacity to implement services among others
(JICA 2008). Policies and regulations are important for ensuring orderly
development including growth of cities and urban areas. However, considering
different backgrounds, needs and governance structures of local governments,
principles of subsidiarity and local responsiveness; economies of scale, externalities,
equity, access and accountability are useful for planning and assessing service
delivery.
The principle of subsidiarity requires decision making to be carried out by the level of
government that is closest to individual citizens (EU 1992). It is an important
principle for efficient allocation of resources, accountability, and responsiveness.
Economies of scale occur where the per unit cost of producing particular service falls
as the quantity of the service provided increases; while externalities occur in cases
Page | 45
where a specific service in one local government jurisdiction spill over on to residents
of another jurisdiction. One way of dealing with such externality is to design
government jurisdictions large enough to include all those that benefit from a
particular public service. This internalizes the externality and ensures that all those
that benefit pay for services. Examples of such services include water, roads and
public transport.
Taking into consideration the existing inequalities within regions, including cities and
urban areas, and the Constitutional principles in the Bill of Rights, the principle of
equity has to be applied. This means either taxing the wealthier areas and using some
of the proceeds to subsidise the poor, or shifting the redistributive function to
national government if the equalization grant is not adequate. The principle of access
and accountability gives prominence to local residents, including city and urban
residents who should have access to local government in order to influence urban
processes including policy. Ways of ensuring this include: public meetings, hearings,
elections, and direct contacts with officials. Smaller government units provide the
average citizen with greater àccess to local decisions and as the levels of
consolidation and concentration in local government system rise, so the capacity of
the public to monitor policy makers' behaviour falls (Boyne 1992). It therefore follows
that the larger the local government, the more likely it is that special interest groups
will dominate citizen participation (Robert 2001).
Accountability follows the above principle on the basis that the more accessible
elected leaders are to their constituents, the more easily they can be held to account
for their actions. Furthermore, accountability requires a link between expenditure
and revenue decisions the body making the decisions about how much to spend
should be responsible for raising a large portion of the revenues it requires. This
creates a major challenge in dealing with the principle of equity in the context of the
County governments, including de-concentrated entities such as cities and urban
areas. This requires both policy and legal provisions, both at the National and County
Government level for addressing the issue.
Effective governance entails promotion of institutional frameworks that facilitate
efficient governance which ensures improved central and local government relations,
especially in relation to distribution and exercise of powers or functions where
mutual cooperation, including subsidiarity is a key element. Other aspects include:
cooperation between public and private sectors, including informal sector and
communities; cooperation between government and Non-Governmental
Organisations (NGOs). While these global attributes of governance have been applied
in Kenya, they have not been domesticated and translated into local policies and laws.
Effective implementation of the Kenya Constitution 2010 requires review of laws and
policies in line with the Constitution and embedding participation in all laws and
service delivery processes.
Page | 46
4.2.2 Levels of Governance
While devolution embedded in the Kenya Constitution 2010 is appreciated, the two
levels pose a challenge due to lack of Constitutional protection for lower units of
government. The Constitution provides for 47 County governments established under
Section 6 (1) with further listing of counties under First Schedule. The status,
functions, and powers of County Governments are provided for under Chapter 11,
Part 2 Section 176. Sub section 2 states that Èvery County Government shall
decentralize its functions and provisions of its services to the extent that it is efficient
and practicable to do so. While this provision allows Counties to decentralise to
lower levels, the lower entities do not have Constitutional protection and can only
operate under legislation which can be changed at the will of either the County or
National government. The decentralised units are not assigned any functions, and are
not revenue allocation centres. This implies that, they can only perform functions
transferred to them by County governments or National governments, although the
latter should be done with caution lest it is used to undermine County governments.
To examine and provide for further decentralisation, this sub section conceptualises
the decentralisation in two categories, rural areas and cities and urban areas.
Figure: 4.2 Units of County Government

Page | 47
4.3 RURAL AREAS
Further decentralisation in rural areas can be visualised in three levels (units) below
the County namely: level 1, 2, and 3. The first level is tentatively referred to as sub
county and is expected to embrace constituencies/districts, while the second and
third levels will embrace wards/locations and villages/sub-locations respectively.
While the concepts of constituency, districts, locations and villages are used, this
paper acknowledges that these geographical regions in some cases overlap with each
other. This will have to be addressed. For example, there are situations where
constituency boundaries are the same as district boundaries, while in some cases they
are not. The same case applies to wards and locations as well as villages and sub
locations (figure 4.1). Within these same regions there are pockets of population
concentration in cities and urban areas. The latter are unique and have been provided
for in the Constitution as discussed below.
4.4 CITIES AND URBAN AREAS
The Constitution provides for Urban Areas and Cities in Section 184 (Box 4.1). The
Constitutional provisions are embedded under the provision providing for devolved
government. This implies that the cities and urban areas, except for the city of
Nairobi and Mombasa will operate under County Governments. Both the City of
Nairobi and Mombasa are also Counties and will directly relate to the national
government, although Nairobi as a Capital City has a higher status. This raises
questions on other larger cities which are currently not necessarily Counties and
those that will in future grow and attain the status of the two cities. While this paper
cannot comprehensively provide direction on this matter, policy and legal provisions
as stated in Section 184 of the Constitution will provide direction as suggested in the
recommendation section of this chapter.
The Fourth schedule of the Constitution gives County Governments some functions
previously undertaken by LAs. This requires harmonization and decision on further
decentralization of functions, including policy decisions on whether de-concentrated
units should be administrative, or both political and administrative. Public hearings
across the country revealed disgust of citizens with electoral politics, which implies
that citizens prefer an administrative system which serves their interest, in particular
service delivery with minimal politics.
4.4.1 Cities and Urban Areas in Development
Urban areas are engines of economic growth and key to innovation, and any
constitutional dispensation has to provide for them. They are places where workers,
capital, institutions and infrastructure come together to provide the foundation for
economic activity. The concentration or proximity of people and firms in cities
increases social and economic interaction and results in exchange of ideas of people
Page | 48
working in different fields in the same location. This exchange of ideas is essential for
innovation. Cities are important local government entities, driving local economic
development. Their
liveability, including
availability of skilled
labour, infrastructure
and services, is
determined by the
type of governance
structure put in place.
The governance
structure and
characteristic such as
nature of services
available, the revenue
sources, size and
location relative to
state or country as a
whole, the nature of
intergovernmental
relations, the history
of cooperation with
neighbouring
municipalities
determine whether a
city attract
population and
innovation (Slack
2003). In 1999, in recognition of the importance of cities and urban areas, the UN-
HABITAT launched a global campaign on urban governance in support of the
implementation of Habitat agenda on sustainable human settlements in an
urbanizing world. The campaign includes applying the principles of good governance
in the context of challenges and realities facing cities, as well as acknowledging the
diversity of cities in terms of individual histories, types of governance and their
linkages across the globe.
In Kenya, there has been rapid urbanization since 1948 when the first census was
conducted. While in 1962, only one out of every twelve Kenyans lived in urban areas,
by 1999, the urban population had reached 34.5per cent or approximately 10 million
people. It is expected that by 2015, urbanization will have reached a national
percentage of 44.5.This urban population is destined for a 54 per cent mark, or 23.6
BOX 4.1: CONSTITUTIONAL PROVISIONS FOR CITIES
AND URBAN AREAS

184 (1) National legislation shall provide for the governance and
management of urban areas and cities and shall, in particular
(a) Establish criteria for classifying areas as urban areas
and cities,
(b) Establish the principles of governance and management
of urban areas and cities, and
(c) Provide for participation by residents in the governance
of urban areas and cities
2. National legislation contemplated in clause (1) may
include mechanisms for identifying categories of urban areas
and cities, and for their governance.
185 (2) provides that county assemblies may make laws that are
necessary for, or incidental to, the effective performance of the
functions and exercise of powers of the county government
under the Fourth Schedule.
187 (2) provides that if a function or power is transferred from a
government at one level to a government at the other level -
Arrangements shall be put in place to ensure that the
resources necessary for the performance of the function
or exercise of the power are transferred; and
Constitutional responsibility for the performance of the
function or exercise of the power shall remain with the
government to which it is assigned by the Fourth
Schedule.
Page | 49
million inhabitants in the year 2030. Overall, the rapid increase in the rate of
urbanization has seen growth in the major urban centres of Kenya, and the country is
expected to continue urbanising.
The urban sector in Kenya contributes about 70 per cent of the GDP, constituting a
very significant part of the economy. The local authorities and especially the cities
and urban areas are important engines of growth and centres of development
providing cultural, educational, management, research, commerce and political
services. They also offer employment, health facilities and boost the countrys
economy (UN-HABITAT, 2004). For instance, the City Council of Nairobi (CCN)
produces more than half of Kenyas GDP.
Urban growth in Kenya has not been managed by any policy, and both cities and
urban areas have operated under the Local Government Act Cap 265. The Act
provides a semi-autonomous status for LAs, with the central government wielding
enormous powers over LAs without any minimal policy direction. This has retarded
the development of LAs, and attempts to develop an urban policy and review the
Local Government Act have been caught up in a new constitutional dispensation,
requiring a fresh look in line with Constitutional provisions.
Cities and urban areas in Kenya face a number of challenges, including outdated legal
and regulatory framework, lack of urban development policy, inability to efficiently
provide services and poor governance. Prior to 2003 when the NARC government
took power, and began embracing New Public Management Reforms, many urban
areas had reached a breaking point. They could hardly provide services as mandated
under the LA Act. Coverage level of services such as solid waste, health and housing
was low and deplorable, with many unable to meet demand for a range of services
In spite of lack of policy on urban development, various policies and government
strategies including the Vision 2030 acknowledge the importance of urban areas.
These urban areas are part of local government system in Kenya and it is relevant to
understand their context within Kenya.
4.4.2 Context of Cities and Urban Areas in Kenya
Cities and urban areas in Kenya have been operating under the Local Authority Act
Cap 265, governing the 175 Local Authorities (LAs). The LAs fall under four
categories, namely: City council of Nairobi, Municipalities, Towns and County
Councils. The latter two are largely rural in nature and provide minimal basic services
such as markets, parks and gardens; sanitary inspection and refuse disposal; burial
grounds and crematoria; fire services and brigade; public transport and social welfare
services; basic environmental services; roads and drains, water supply, and basic
planning and development control among others. Other services are offered by line
ministries which have administrative structures originating from the central
government, through provincial to district administrative system.
Page | 50
The City Council of Nairobi and other larger Municipalities such as Mombasa and
Kisumu undertake all the above services and other higher level functions such as
health, education and engineering works. All LAs are semi-autonomous and
answerable to the office of the Deputy Prime Minister and Ministry of Local
Government, previously Ministry of Local Government. Their semi-autonomous
status has often been a bottleneck to efficient operations due to heavy reliance on
central government both for
direction and resources which
are often insufficient for
effective service delivery. The
acknowledgement of this
challenge has been addressed
through local government
reform programmes, in
particular a fiscal transfer of a
resource envelop from the
central government under the
name of Local Authority
Transfer Fund (LATF). The
fund was established in 1999 to
provide funds to supplement
LA revenues to be used in three
key areas: improvement of
service delivery; improvement
of financial management and
accountability; and elimination
of outstanding debts
4.5 CLASSIFICATION OF
CITIES AND URBAN
AREAS
Currently Kenya has a number of urban areas classified as City, Municipalities and
Town Councils, but there is no clarity on the criteria used for determining these
entities. Prior to the era of good governance and New Public Management, most of
the urban authorities got their status through political proclamations and have not
been able to deliver services to their residents. There are no universal criteria for
classifying cities and urban areas that are globally accepted. Countries tend to follow
their own unique classification logic depending on local circumstances and the
historical evolution of both their urban and local government systems.
BOX 4.2: CLASSIFICATION OF LOCAL
AUTHORITIES

Topographical and physical characteristics of the
area concerned;
Distribution, size and density of the population of
the area concerned;
Existing boundaries of local authorities particularly
the area/coverage of the human settlement the
maximum expenditure the local authority is able to
support;
Existing revenue collection and potential land use,
including industrial, business, commercial,
residential and environmental planning;
Economy, functions, efficacy and capacity to
render services within the area concerned;
Development potential in relation to infrastructure,
communication and transport facilities, availability
of sufficient land for further development
according to the spatial needs of residents of the
area concerned;
Integrated urban economy as dictated by
commercial, industrial and residential dynamics of
the area concerned; and
Extent to which comprehensive urban plans have
been prepared for the development and
management of the said subject areas.
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Towns are often classified based on their economic capabilities. They are viewed as
centres of business with population a concentration. In Kenya, there has been no
progressive way of assigning city status to towns that have exceeded the thresholds
set by many cities across the globe.
Municipalities are levels of local governments such as towns that are governed by
locally elected officials. Other concepts such as borough are used for self-governing
towns, and municipalities. The mandates of the boroughs vary across jurisdictions. In
London, boroughs are subdivision of the cities. A majority of states that have a
devolved system have clearly defined the roles and relationships between the levels of
government in legislation. For
instance, in the case of London,
the relationship between the
London Boroughs and the
Greater London Authority has
been set out in legislation. The
Constitution also provides for
areas where the union, the states,
and the federal district have the
power to legislate concurrently.
This includes tax and budget,
education and culture, and
judicial proceedings. In other
territories, the boroughs do not
give any additional powers to
the council or inhabitants of a
district.
In Kenya an attempt to classify
LAs has been done in Section 6 of
the Draft Local Government Bill
2009 (Box 4.2). The Draft
provides the following elements for classifying Local authorities as town, county,
municipal city and metropolitan councils:
4.5.1 Capital City and County of Nairobi
The City Council of Nairobi (CCN) produces more than half of Kenyas GDP, it is
important that Nairobi, being a primate city and seat of government and the
countrys capital city, be given due consideration in legislation to promote its further
economic growth, international status, planning and management.
Section 200 Sub Section 2 (a) of the Kenya Constitution 2010 allows provision to be
made with respect to the governance of the Capital city, other cities and urban areas.
BOX 4.3: PUBLIC VIEWS ON FACTORS
FOR CONSIDERATION IN ESTABLISHING
CITIES AND URBAN AREAS

Sound tax base, and ability to attract external
funding,
Population of at least 350,000 inhabitants in a
built area,
Development level, including level of
economic growth and industrialization, per
capita income, vibrant number of businesses,
Long term planning, in line with national
development plan,
Investment climate, including level of
infrastructure development, quality of
transport, water and sanitation, health, safety
and security and quality of schools,
Administrative facilities with employees
conversant and applying ICT in
communication and development, and
Topographical features
Page | 52
Although the Constitution does not mention Nairobi, it can be assumed, that the
Capital city of Kenya is Nairobi. In addition, Article 184 (1) also provides for
enactment of legislation for governance and management of urban areas and cities as
already stated.
During public hearings, the public expressed the need for cities to have long-term
plans anchored on national plans such as the Vision 2030. They emphasized that
`proper long term planning in all developing towns should be put in place before any
change of status depending on how fast an area is developing. There were many
other factors which the public considered important for establishing and classifying
cities (Box 4.3).
4.5.2 Conferring of City Status
According to article 23 of the Draft Local Government Bill (2009), the minister may,
on the recommendation of the Advisory Commission, confer City status onto a
municipality if:
a. it has notable features of historical importance or has regional, national or
international significance; and
b. demonstrates-
i. a positive contribution to the economic development of the country;
ii. proper management of its financial resources;
iii. efficient and effective delivery of services to its residents;
iv. an effective programme of environmental conservation within its area;
v. active participation by its residents in the management of its affairs;
vi. existing and potential land use, including industrial, business,
commercial, residential and environmental planning;
vii. availability of infrastructural facilities, including but not limited to
roads, street lighting, markets, and fire stations with capacity for
disaster management;
viii. availability of a functional sewerage systems in its area of jurisdiction;
ix. economy, functionality, efficiency and financial viability in its
administration; and
x. the ability to render services, including healthcare, education, waste
management and environmental conservation within its area; and
c. Presents, at a minimum, a five-year integrated development plan
25

While some of the above criteria can be used for classifying cities and urban areas, the
powers given to the Minister is not in line with the spirit of the Kenya Constitution
2010, and there is need to come up with a mechanism/body for designation of cities
and urban areas. Once a criterion is developed, the body can reassess the existing
cities and urban areas and reclassify them accordingly. In terms of procedure, urban
areas which qualify can apply to the established body for status upgrading. Most of
Page | 53
the variables highlighted by the Draft Bill are not different from those highlighted in
the Counties during Public hearings.
The public emphasized the need to have at least one urban or municipality in each
county. This preference was
demonstrated in the existing
tension around where County
headquarters should be located.
Such location was associated to
urban development and by
extension economic growth
expected to occur, once an area
is designated as city or urban.
While experience shows that
cities and urban areas can be
reporting to either County or
National government, most
citizens preferred
governors/managers of cities to
report to respective County
governors. Kenya Constitution
2010 provides for two levels of
government, National and
County, with cities and urban
areas operating under Counties
as stated during the public hearings.
In order to ensure a smooth operation among the different levels of governance
process, citizens suggested establishment of a mechanism of coordination and
communication between the various entities within the County and the County
Governor. A few others argued that, the LAs should not be disbanded but should exist
as agents of respective Counties receiving administrative instructions from County
Governments. Most of these inputs can be integrated in designing a legal framework
by the County since they do not contradict the Constitution which provides for
further decentralization and operates on the principles of cooperation and
consultation.
The citizens also noted that current cities and municipalities should be retained and
thereafter new criteria can be used. This public view might be problematic if the
Counties decide to reassess some of the cities and urban areas that currently exist and
do not have the characteristics highlighted by citizens and do not qualify under
classification criteria. In order to assist in addressing this challenge, criteria for
BOX 4.3: PROPOSED CRITERIA FOR CLASSIFYING
URBAN AREAS AND CITIES

Three categories of urban areas, all referred to as
Municipalities and differentiated by population and
services provided can be categorised;
i. Municipalities with at least 300,000 people and
above
ii. Municipalities with between 50.000 299,000
iii. Municipalities with between 30,000 49,999
Built area with high population density,
Availability of public land
Integrated development Plan,
Infrastructure and basic services,
Vibrant business environment,
Sound financial base,
Note: Other relevant variables may be included in the above
criteria as negotiated with the body charged with upgrading
and further classification. The classification further assumes
that all areas which do not have the above characteristics are
rural Municipalities
Page | 54
classifying urban areas and cities as required in Section 184 Sub Section 1 (a) is
proposed (Box 4.4).
4.6 CHALLENGES FOR FORTY SEVEN COUNTIES
This sub section begins by providing an overview of local governance in Kenya in
order to set up a framework for assessing the challenges which are likely to face the
47 Counties established by the Kenya Constitution 2010. The establishment of the
two levels of devolution is expected to pose a number of challenges besides the issues
of transfer of functions and related revenue allocation. These challenges include
structural overlaps, cross county planning and service delivery, capacity building, and
economies of scale as discussed in this sub section.
4.6.1 Overview
The Constitution makers reference to the existing Local Authorities (LAs), which
include 67 County Councils, 62 towns, and 45 municipal councils and the City of
Nairobi in schedule six, part 4, Section 18 under devolved government. It is noted
that all LAs established under the Local Government Act (Cap 265) existing
immediately before the effective date shall continue to exist subject to any law that
might be enacted. The law is likely to be the Devolution Act and policy expected to
provide for further decentralization in both urban and rural parts of Counties. The
same law should also provide direction for rationalization and fit of other prevailing
governance structures operating at County level, including Provincial Administration.
The many governance structures, including LAs, Provincial Administration, line
Ministries, Regional authorities and various programmes are all embedded in
Counties, and must conform to the Constitutional provisions. This requires functional
rationalisation and fit, giving policy directions and legal provisions for efficient
service delivery and management. Using this approach some of the service functions
of County Governments through the principle of subsidiarity will be delegated to
decentralized units, including cities, urban areas, and specialized agencies and
corporations.
4.6.2 Structural Overlaps
As highlighted in the previous sub sections, there will be some sub units of counties
which will overlap with each other, for example cities and urban areas located within
counties. Since management of cities and urban areas differ from management of
rural areas, there is need to plan for this as suggested in the sub section dealing with
cities and urban areas. In particular, transfer of functions and allocation of resources
has to take into consideration management of the three types of municipalities
proposed. In some cases municipal services will cut across counties, and inter-county
service provision mechanisms will have to be designed for effective service delivery.
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4.6.3 Capacity Building
Kenya has embraced devolution inheriting a weak local governance framework with
many parallel systems at the local level, poor infrastructure and inadequate facilities.
While more focus has been on the LAs and their capacity, including weak governance
framework, the Kenya local governance gamut goes beyond Las and embraces the
role of the Provincial Administration, which must be restructured to accord with the
requirements of devolved government. There are also line ministries which are
expected to provide services to citizens but can hardly cope with the massive
requirements of service provision due to both inadequate resources, including
shortage of staff. Some of this pool of human resource will be useful in starting off
Counties once issues relating to terms and conditions of work are clarified. The other
entity on the ground is the Constituency which until recently had no management
framework, except the Members of Parliament (MP), councillors and partisan
committees. In recent years some coordinators have been posted to manage the
Constituency Development Fund (CDF). The role of this team will have to be
redefined depending on the structure adopted as provided by National policy and
Devolved Government legislation.
Irrespective of County governance structure adopted, there is need for capacity
assessment, and training. While one can argue that Kenya has a pool of human
resource, it should be acknowledged that the Kenya Constitution 2010 requires new
thinking, including planning and engagement with citizens which will not be familiar
to even those who have been working at the local level for many years. An ideal case
requires an institution to be designated to begin undertaking the exercise prior to
rolling out the Counties. This should continue in Counties established through both
in-service and residential depending on respective county needs. Training
institutions could be at national, cross county (regional) or county level.
4.6.4 Cross County Planning and Development
Effective local economic development requires planning and management of a
number of development activities across sectors and counties. The importance of this
factor came out during public hearing with many Counties beginning to close up on
their resources, or contending that fees have to be charged for use of resources
originating from their Counties. One example of such a resource is water serving
major cities with sources outside respective cities, and by extension Counties.
Planning is aimed at achieving order, optimal and sustainable spatial distribution by
stirring up regional competitiveness to enable full resource exploitation. However
planning has faced several challenges, including functional disconnect between the
plan preparatory authorities and implementing agencies; lack of appropriate
technical and institutional capacity of Local Authorities; inadequate human
resources; absence of broad based consultation; and effective coordinating
Page | 56
framework for preparation and implementation of plans and enforcement. During
public consultations the public highlighted some of the considerations which should
be made while planning in Counties. Availability of natural resources, land and
population were among the factors highlighted (Box 4.5)
Effective cross county planning and service delivery requires cooperation and
consultation mechanism
as provided for in Article
6(2) of the Constitution.
This requires a national
legislation and policy that
will ensure that effective
participation and
management of cross
cutting resources such as
water, roads and
electricity are planned in
an integrated manner.
Section 189 (2) provides
the legal framework for
the cooperation across
Counties noting that
`different governments at
the County level, shall co-
operate in the
performance of functions
and exercise of powers and, for that purpose, may set up joint committees and
authorities.
Legal basis for cross county planning services are implied in a number of
Constitutional provisions. Article 66 (1) provides for the regulation of the use of any
land, or any interest in or right over land in the interest of defence, public safety,
public order, public morality, public health or land use planning. Articles 66 (2) gives
powers to parliament to enact legislation ensuring that investments in property
benefit local communities and their economies and Article 69 (a) and (b) obligates
the state to ensure sustainable exploitation, utilization management and conservation
of the environment and natural resources and ensure equitable sharing of the
accruing benefits.
The aspect of ensuring equitable sharing of accruing benefits is useful for cross
county resources and services such as forests and water resources. The Constitution
in Article 69 (b) further obligates the state to work to achieve and maintain a forest
cover of at least 10 per cent of the land area to Kenya. This will require cooperation
BOX 4.5: SUBMISSIONS ON FACTORS FOR
CONSIDERATION IN PLANNING WITHIN
COUNTIES

Availability of competent human resource
Availability of natural resources, land and
population density,
Availability of infrastructure, including roads and
ICT
Existence of viable plans for executing functions
On-going projects,
Environment, climatic conditions, geographical
features in the area,
Cost and service delivery,
Economic disparities, marginalized groups,
gender equity,
Presence of squatters
Poverty index,
Urbanisation,
Security issues in an area,
Page | 57
among counties, including putting in place an appropriate legal framework to
facilitate and regulate forest reserves including urban forest cover. An example can be
drawn from Karura and Ngong forests which cut across two Counties. Many other
cases of forests and others resources including water and transport networks exist in
other Counties.
Water is a good example of a service which is often provided under the cross county
concept. Currently, the water Act provides a framework for the management and
provision of the water services. Under the Act the Water Boards manage the water
services through policies and regulation, while actual delivery to consumers is done
by the water companies owned by LAs as provided by the law. The same framework
can be used where two counties or more come together to provide a service through a
common board or company. In such cases a cross county company can provide a
common service. Alternatively, a national legislation can provide a framework for a
board to provide policy framework and regulation. The membership of such boards
should include representative of the counties and national government. Apart from
water other cross county sector and services include: transport, tourism, electricity,
markets, housing, and energy.
As highlighted in the case of water, planning for transport, housing, and energy is
better done by specialized boards for and on behalf of the affected counties. This
situation becomes more necessary when specific service is being consumed across
counties or cities.
There is need to establish long term sustainable framework for social, territorial,
economic development for cross cutting resources and services. The role of such plan
will be to improve inter county development systems with due considerations to each
County and related environment. For example, land use planning and linkages with
environmental protection can be used to coordinate the spatial impacts and other
sectoral policies for an economic distribution of a regional or cross county services.
4.6.5 Economies of Scale
Section 189 (1) notes that cross county cooperation ensures and enhances articulation
and implementation of national government policy. The second provision (2)
provides for cooperation for effective service delivery. The provision states that
governments at county level are supposed to cooperate and create joint authorities
and committees with the aim of performance of certain functions. The joint
performance of functions has cost benefit effects, including economies of scale.
One of the principle considerations for intergovernmental relations is economies of
scale that accrue when providing trunk/bulk infrastructural services. This affects
provision of water, roads, bridges, power among others. This implies that the
production, provision and transmission of some services would transcend county
boundaries and have to be negotiated appropriately with the objective of enhancing
Page | 58
capacity and providing services efficiently and cost effectively. Citizens across
counties require services as a basic right as contained in the Bill of Rights. However,
some of such services may not be available within their counties. To provide such
services, it is necessary that resource mobilization is done collectively in order to
efficiently produce and deliver the services.
In line with the discussion in this section, there is need for policy direction on how
services which cut across Counties will be provided and managed. While this option
could be left to the discretion of the County governments, it will be useful for national
government to provide guiding principles to assist counties in making decisions. This
should also include providing an appropriate framework for preparation of and
implementation of integrated national, regional and local area land use plans that
meets needs of stakeholders across counties. Further, there is need for facilitation of
appropriate institutional and technical capacity building initiatives for accelerating
plan implementation at all levels.
4.7 POLICY AND LEGAL GAPS
The discussion on levels of governance, cities and urban areas reveals a number of
policy and legal gaps which have to be addressed if the Counties are to effectively and
efficiently operate. Areas which need to be addressed include: levels of further
decentralization; reporting units and mechanisms; relationship between Counties
and Constituencies; degree of autonomy in cities, municipalities and towns; and
direction on graduation of urban areas to higher level of cities. A number of these
gaps can be filled by developing a Municipal Bill outlining how cities and urban
municipalities will operate in a devolved government. Figure 4.1 shows a proposal for
decentralized County structure, while figure 4.2 further illustrates how the levels of
governance look like.
4.7.1 Areas for Further Decentralisation
The first level shall be a Sub-County composed of constituency/districts. These can be
located in either urban or rural areas. The urban municipalities can be categorized
into three, those with at least 300,000 (large) and above; between 50,000 and
299,999 (medium) and those with between 30,000 and 49,999 (small). The first two
categories will provide similar services depending on their capacity, while the last
category can provide minimal services as delegated by the County government. The
rural units of the County will have different forms of service delivery and governance.
In all the options, participation of citizens is mandatory and can, either be direct
through County representatives at the local level providing an oversight, and/or
through quarterly, biannual and sectoral participation of citizens.

Page | 59
Three options are proposed for the governance of Large and Medium Municipal areas
1. Directly Elected mayor through universal suffrage with semi-autonomous legal
framework
2. Mayor elected by electoral college of County Assembly representatives;
3. County Assembly representatives appoint a City manager to manage the
Municipal area
For smaller Municipal areas two options are proposed:
1. County appointed manager with County Assembly Representatives from
respective wards and inclusive citizen representation playing oversight role
2. Administrator with inclusive citizen representatives playing an oversight role
For Rural Areas as well, two options are proposed:
1. County appointed manager with County Assembly Representatives from
respective wards and inclusive citizen representation playing oversight role
2. County appointed manager with County Assembly representatives from
respective wards playing an oversight role
Figure 4.2 proposes an administrative structure specific to large and medium cities.
Figure: 4.2 Large or Medium City/Municipal Council (Sub-County Level 1)

Page | 60
The political and administrative structure of the City, County and Capital City of
Nairobi will be different in line with Article 200 (a) and figure 4.3 is proposed for the
governance of the capital city.
Figure 4.3: Administrative Structure for the Capital City, Nairobi

For the City Council of Nairobi, where the county and City boundaries correspond,
one option would be to combine the functions of Mayor and Governor and elections
be held as stipulated in the constitution and other applicable legislation. This would
reduce the conflicts that may arise with overlapping political structures. Electoral
wards once established will be the basic unit for political representation. It is
expected that the City/County will have Municipal Areas to be managed in a unique
manner which responds to service delivery requirements. The management of such
areas is proposed below.
Municipal Management
City Manager and Technical team appointed competitively by County
Government
City Departments established to respond to city service needs. However, there
should be recommendation of critical Departments that should be mandatory
Page | 61
Service regions/Divisions to be established composed of a number of electoral
wards. Service regions are the basic units for development planning and local
service delivery.
Municipal council to provide mechanisms for citizen participation at the
service regions/divisions
Performance management system to be adopted to ensure institutional and
staff accountability. This will include an M&E and reporting framework
providing feedback to citizens.
Role of Service Regions/Divisions
Development of Divisions development plans through participation. These
plans are then integrated into municipal plans. Frameworks for engagement
that recognise principles of efficiency, inclusive and effective service delivery
Manage service provisions in respective regions
Respond to resident service queries
Coordinate area security and response mechanisms
Service Delivery Models
Guiding principles for designing service delivery mechanisms include efficiency,
effectiveness, inclusivity and participation in the service delivery cycle as highlighted
in principles of governance and service delivery. Cities and urban areas, referred to as
large, medium and small municipal areas could adopt a number of options including
the ones highlighted below:
Utility companies: to be in charge of water reticulation, electricity
distribution and municipal law enforcement. This can be companies, fully
owned by the urban municipal. This will allow the urban municipal to generate
revenue, while providing services efficiently and at affordable cost to the public
(user fee)
Agency: These would be in charge of social infrastructure and services such as
Roads, Environment (including Parks and recreation areas), tourism and
Cultural promotion, Health, emergency services, etc. These agencies, fully
financed by the urban municipal, will ensure that public goods are available
and accessible to all, at minimal cost.
Service Board: may be formed to cater for services such as water, roads,
among others, whose production and distribution transcend county
boundaries. Service Boards will work closely with national agencies
responsible for respective services, for example water, roads, electricity, policy
coordination, service standards, and regulations.
Page | 62
Enterprises: These may be formed to commercialise the provision of services
with a social function and would be structured as individual companies, but
will focus on achieving reduced subsidies in delivery of their services.
Each of the units of governance illustrated in figure 4.2 and 4.3 will require different
form of management with regulations governing their operations. An example of a
similar management system is in United Kingdom (UK). In the kingdom, the County
Councils, Districts and Boroughs all have different managerial systems, including
County Councils being responsible for strategic-level functions including education,
social services and emergency planning. They also have established executives to
implement the broad budget and policy framework adopted by their full Council. The
boroughs on the other hand, are responsible for running all the local services in their
areas of jurisdiction such as schools and waste management. In India, the
Constitution identifies 29 matters over which rural local governments may have
jurisdiction (Constitution of India, Eleventh Schedule (1950 - amendment of 1993).
Relationship between Counties and Constituencies should also be defined to avoid
conflicts which currently exist. Elaborate other conflict area, especially the conflicts
which may arise setting up a motion which is discussed in the functional and
finance sub sections. Give other factors and conflict; CDF is not the only development
fund which require discussion. During public hearings there were heated debates on
whether any resources should be channelled to any other entity within a county, other
than the County Government. Constituency Development Fund (CDF) was a common
example. The CDF was proposed and negotiated by Members of Parliament (MPs).
However, there is need to provide policy direction on all funds going to the Counties,
including resources channelled to constituencies within counties.
Although there were mixed reactions on elected leaders, with many citizens having
problems with how MPs manage CDF resources, a significant number still preferred
cities and urban areas to be governed by elected leaders, including having mayors
elected by all voters within a city or urban jurisdiction. There was consensus that all
elected leaders should report to the County Government, and should restrict their
role to policy making. Reporting to County Governor is expected to address the
challenge the LAs have been facing in reporting and dealing with the central
government. Similarly, theres need for decision on the employees of Local
Authorities which will cease to exist immediately the County governments are
elected. Besides, the counties having constitutional mandate to define their own
structures, among other discretional powers provided for by the constitution, there is
need to for decision on personnel of Local authorities.
The issue of some autonomy for sub units of County Governments is going to be a
major challenge in rolling out the Counties. Embedded in Counties are entities that
have been operating with some autonomy such as the Local Authorities, and line
Page | 63
ministries which have totally different reporting mechanisms. Some of the
considerations would be for counties to define levels and nature of de-concentration
to lower levels, whereby the counties retain overall supervision over the sub-county
units, based on the principle of subsidiarity. While it is acknowledged that most of
these entities will cease to exist once the County Governments are established, there
is need to provide policy direction for the interim period taking into consideration
Constitutional provisions, and the status which these entities have held in the
previous jurisdiction and the powers they wield on the ground. Their power is too
rooted, and some of the positions held by the public which contradict the provisions
of the Constitution were partly influenced by this fact.
The issue of graduation to a higher level status also requires attention. Depending on
the nature of further decentralization, if a threshold is set, especially for urban areas,
there will be need to provide policy direction on what happens once an entity reaches
a threshold. Kenya is coming from a context of hierarchical thinking and operations,
and unless policy and regulatory measures are put in place, status conflicts may be
too many to manage. This was demonstrated during public hearings in the
competition on where County head-quarters should be located. While this was not
one of the concerns of the TORs of the Task Force on Devolved Government, the
public in most Counties pushed the issues into discussions, showing the importance
they place on the issues.
National policy direction and legislation on these issues by the National Government
followed by relevant Acts developed by respective Counties will assist in providing
direction, and cushioning the Counties from unnecessarily challenges during infant
years. One option is to have both policy and national legislation which guides County
governments and ensures a threshold of good practices across counties. The other
option is to leave Counties to come up with their own policy directions and legislation
depending on the decision of respective County Assemblies. Consideration should be
given to development of model laws based on national policies, which counties would
have the discretion to adopt.
It is prudent to design administrative decentralized units using a functional approach
in line with the size and growth of cities and urban areas. Such entities can be
managed by qualified personnel recruited either through the city authority public
service in cases of cities which double up as Counties, or by Counties for cities and
urban areas which operate under County jurisdictions.
4.7.2 Policy Options and Recommendations
The Constitution provides for further decentralization without specification, although
Section 176 (2) of the Constitution provides à decentralization of functions and
provision of services to the extent that is efficient and practicable. This leaves the
County Governments to determine what is efficient and practicable, an option which
Page | 64
might result in different interpretations, although this should be done in line with the
spirit and principles in the Constitution.
There is more clarity on cities and urban areas since a provision is provided for
through National legislation. However the Constitution does not provide how these
entities should be structured for effective service delivery and management of
services. It is therefore recommended that:
(1) National Guiding Principles for Further Decentralization be developed
The principles should include efficiency, effectiveness, accountability, and equity in
service delivery. Further, the objects of devolution highlighted in Section 174 and
principles of devolved government outlined in Section 175, in particular effective and
inclusive delivery of services must be ensured. Ensuring Section 174 (c), by giving
powers of self-governance to the people and enhancing the participation of the people
in the exercise of the powers of the state and in making decisions affecting them is
paramount. The latter can be done through representation and participation and
ensuring that resources follow functions in all plans of the County. The guiding
principles anticipated in this section should allow room for Counties to be innovative,
competitive and efficient in service delivery.
(2) National Cities and Urban Areas Legislation be developed
Components of this legislation should include
Definitions (Sub-County, cities, urban, Municipal, Service Boards, etc)
Structure of governance
Classification of municipals
Types of Municipals
Overlap of jurisdiction and service delivery
Criteria for Municipal graduation
Functional Responsibilities
Nature of staffing
Financing
Powers and Privileges
Service delivery models
The rationale for setting principles and having legislation is based on a number of
factors, in particular the likelihood of Counties opting to take different measures,
including others deciding to re-centralize at County level. Should this happen the
whole principle of devolution will be lost and communities which have suffered in the
past will continue to suffer. Embedded in centralization is the control of County
resources, without further decentralization County communities will not have the
opportunity of ensuring the principles of decentralization which include efficiency,
effectiveness, accountability and equity. Further, Kenya is coming from a history
Page | 65
where there have been many parallel governance institutions and centres of resource
allocation which is costly and unless some direction is provided this is likely to
continue.
The Constitution does not give independent powers beyond the Counties, including
municipalities and municipal authorities. This can be addressed through the
suggested legislation. This is necessarily because whatever powers and
responsibilities are delegated to decentralized entities by Counties can be changed,
removed or added at the countys governments discretion. The National policy and
legislation will provide a threshold for all Counties and give them room for further
legislation depending on County needs determined by the County Assembly in
consultation with residents.
At the County level, Counties should operate under a Devolved Government Act
which will need to be operationalised by County policies and legislations. For
example legislation securing decentralized entities, including cities and urban areas
including providing for a Department of Municipal Affairs. The purposes of the Act
could include:
Giving broad authority to Municipals, including authority to pass by-laws,
Respecting the right of councils to govern municipalities in whatever way they
consider appropriate within the jurisdiction given to them,
Enhancing the ability of councils to respond to present and future issues in
their municipalities,
Recognizing that the functions of the municipality including:
o Ensuring effective and inclusive governance
o Providing services and facilitating other things that are, in the opinion
of the council, necessary or desirable for the municipality
o Developing and maintaining safe and viable communities
4.8 CONCLUSIONS
This chapter has discussed levels and units of devolved government at the County
level and made proposals for further discussions. Below is a summary and
conclusions on key areas of focus, which include policy, legislation, governance,
restructuring and outstanding issues.
4.8.1 Policy
There is need to develop National guiding principles for further decentralization in all
County Governments. The guiding principles will assist counties in making decisions,
and could include directions on:
Urban development
Page | 66
Whether further decentralised units should be administrative, or both political
and administrative
Funding of further decentralised units
Training in counties, including prior to rolling out the Counties
An appropriate framework for preparation of and implementation of
integrated national, regional and local area land use plans, that meets needs of
stakeholders across counties.
Mechanisms for facilitation of appropriate institutional and technical capacity
building initiatives for accelerating plan implementation at all levels of further
decentralisation.
Financial management of all funds going to the Counties.
Establishment of long term sustainable framework for social, territorial,
economic development for cross cutting resources and services.
Long term planning in counties including in further decentralised entities,
especially in developing areas such as small towns and rural areas
Cross county planning framework and regulation
Relationship between Counties and Constituencies should also be defined to
avoid conflicts which currently exist.
Effective participation and management of cross cutting resources
4.8.2 Legislation
Effective implementation of the Kenya Constitution 2010 requires review of laws and
policies in line with the Constitution and embedding participation in all laws and
service delivery processes. This chapter has recommended three legislations:
1. Devolution Bill, 2011
2. National Cities and Urban Areas Bill, 2011
3. County Municipal Structure Bill, 2011
The Devolution Act and policy is expected to provide for further decentralization in
both urban and rural parts of Counties among others. The same law should also
provide direction for rationalization and fit of other prevailing governance structures
operating at County level, including Provincial Administration and line Ministries.
National Cities and Urban Areas Act should provide for classification, structures,
management and relationship with decentralised units and the County.
The County Municipal Act should provide a mechanism/body for designation of cities
and urban areas. Once a criterion is developed, the body can reassess the existing
cities and urban areas and reclassify them accordingly. In terms of procedure, urban
areas which qualify can apply to the established body for status upgrading.
Page | 67
4.8.3 Governance
Beyond the two levels of governments provided by the Constitution, the chapter has
proposed three levels of further decentralisation:
1. Sub County level, which can be constituencies/districts. The Constituencies are
already delineated, while the districts might have to be realigned.
2. Location/wards. These will
go along the existing
entities or realigned
locations/wards.
3. Village/Sub locations
Proposals are also made on
governance of Municipal Areas,
with separate proposals for Large
and Medium Municipal Areas,
Small Municipal Areas, cities
which also double up as Counties
and rural areas.
Large and Medium
Municipal Areas
1. Directly elected mayor
through universal suffrage
with semi-autonomous
legal framework
2. Mayor elected by an
electoral college of county representatives;
3. County representatives appoint a City manager to manage the Municipal area
Small Municipal Areas
1. County appointed manager with County Representatives and inclusive citizen
representation playing oversight role
2. Administrator with County Representatives and inclusive citizen
representatives playing an oversight role
Rural Areas
1. County appointed manager with County representatives and inclusive citizen
representation playing oversight role
2. County appointed village coordinators and Assistant coordinators with County
Assembly representatives and inclusive citizen representation playing an
oversight role
OUTSTANDING ISSUES WHICH
REQUIRE FURTHER RESEARCH AND
DECISION

Whether we opt for Constituencies or
districts as level 1 for further
decentralisation serving as Sub-
Counties and align districts accordingly;
Determination of level 2 (locations or
wards?) of further decentralisation
Financing of further decentralised units
Challenges of cross county services
Operation of Municipal Areas within
cities/counties
Situation of personnel in Local
Authorities
Engagement of National Administration
in County Governments
Operation of Counties during transition
Page | 68
Cities/Counties
1. Governor to double up as the mayor
2. Competitively appointed Municipal managers and technical team
3. Formation of service delivery models (utility companies, agencies and service
boards)
4.8.4 Restructuring
Institutions operating in the County will require restructuring in line with the Kenya
Constitution 2010, in particular:
1. Provincial Administration and line Ministries personnel: Some of this pool of
human resource with competence will be useful in starting off Counties once
functions and issues relating to terms and conditions of work are clarified.
2. The role of the team that currently manages the Constituency Development
Fund (CDF) will have to be redefined once the CDF law is reviewed in line with
the Constitution and proposals in this chapter.

Page | 69
5 STRUCTURES AND INSTITUTIONS OF DEVOLVED
GOVERNANCE
5.1 INTRODUCTION
This chapter deals with the arrangement, composition and configuration of the
county government. It spells out the working of the county government and provides
the framework for the supporting institutions. It is apparent, on the face of it, that at
the centre of the county government is the County Assembly and the County
Executive. The former playing the legislative role, while the latter carries out the
executive functions of the county. These responsibilities are undertaken within the
wide purview of good governance. For this reason, it is considered appropriate to
take a quick review of the tenets of good governance, particularly those spelt out in
the Constitution of Kenya 2010 (CoK 2010).
5.2 PRINCIPLES OF GOVERNANCE
Governance describes the process of decision-making and the procedure by which
decisions are implemented
26
. It is the dynamic interaction between people,
structures, processes and traditions that supports the exercise of legitimate authority
in provision of sound leadership, direction, oversight, and control of an entity. This is
in order to ensure that its purpose is achieved, and that there is proper accounting for
the conduct of its affairs, the use of its resources, and the results of its activities. In
Kenya, the Constitution provides the foundation and cornerstone of governance. The
Constitution defines the configuration, construction and composition of the tools
necessary for the realization of good governance
27
. It entrenches the rule of law and
ensures protection of the rights of citizens, maintaining order and limiting the power
of government.
Article 10 of the Constitution provides for national values and principles of good
governance. These are:
a. Patriotism, national unity, sharing and devolution of power, the rule of law,
democracy and participation of the people;
b. Human dignity, equity, social justice, inclusiveness, equality, human rights,
non-discrimination and protection of the marginalised;
c. Good governance, integrity, transparency and accountability; and
d. Sustainable development
It is manifest that the Constitution affirms that sovereign power rests with the people,
and this power can be exercised either directly, or through democratically elected
representatives both at national and county level.
Page | 70
This Article of the Constitution combines legal and definable principles such as the
rule of law, the sharing, devolution
of power and democracy with the
more subjective concepts of
patriotism and the participation of
the people.
Patriotism as used in the
Constitution involves the loyalty to
one's country. Patriots support, and
are prepared to serve their
country
28
. The principle also
represents an individuals
connection to their countrys
customs, traditions, pride in its
history, and devotion to its welfare.
Kenyas rich history has involved
peaks and valleys in the midst of a
plethora of customs and traditions
inherent to a nation with a varied
cultural background borne of varied
tribes and their unique cultures and
languages. An ideal patriot serves
the ultimate goal of nurturing the nation and instilling national pride within the
country.
5.3 LEGISLATIVE ARM OF COUNTY GOVERNMENTS
5.3.1 Introduction
A cardinal principle underpinning devolution is the need to decentralize
administrative, financial and political power to the local level in order to enhance the
efficiency and effectiveness of government. A decentralized government allows
greater citizen participation in local development and permits the government to
respond quickly to local needs. Currently however, there does not appear to be a
single coherent policy document that defines the intentions of decentralization in
Kenya.
This chapter seeks to define, explain and elaborate the arrangement, powers and
functions of a County Assembly established under section 176 (1) of the Constitution.
It also clarifies the relationship between the County Assembly and the County
Executive on the one hand and that of the County Assembly and the National
Government on the other.
BOX 5.1: COUNTY VISIT SUBMISSIONS
ON NATIONAL VALUES AND PRINCIPLES

There is need for upholding the principles
of accountability and transparency for the
purposes of good governance in the
counties
Promote the principle of public
participation as a way of enhancing
citizens participation in governance
particularly the County governments
Institute principle of social audits for
purposes of checks and balances for
resources
Provide oversight structures and
institutions in the counties for purposes of
good governance
Entrench the principle of prudent
management of funds through the
creation of checks and balances in the
counties
Page | 71
A County Assembly provides an opportunity for the exercise of a decentralized power
structure away from the unitary system Kenya has practiced since independence. In
this way Kenya is following in the footsteps of Malawi, Ghana, South Africa and
Nigeria which practice different shades of decentralized governments.
29

Figure 5.1: Structure of County Governments

The Constitution establishes a devolved government aimed at promoting democratic
and accountable exercise of power,
30
giving powers of self-governance to the people
and enhancing the
participation of the
people in the exercise
of the powers of the
State and in making
decisions affecting
them.
31
In so doing the
Constitution recognizes
the right of
communities to
manage their own
affairs and to enhance
their development.
32

This is meant to
BOX 5.2: COUNTY VISIT SUBMISSIONS ON COUNTY
ELECTORAL PROCESS

County Government elections should be different from the
national government to avoid the distortions or fraud
brought in by the political experts
No direct party nominations
Nomination of Speaker by PSC
Limit on budget for campaign
After nomination the list should be debated at County level
Governor to get 50% plus 1 votes
Majority of votes in at least half of the electoral wards
Page | 72
promote social development and the provision of proximate, easily accessible services
throughout Kenya
33
and also enhance checks and balances and separation of
powers.
34

The objectives of devolution emphasize recognition of the fact that state power
belongs to the people and is exercised on
their behalf by elected representatives
acting through formal institutions. It is
intended that devolved governments
augment peoples participation in
governance and self-development and
shall be based on democratic principles
and separation of powers.
35

The Constitution provides that a County
government shall consist of a County
Assembly and a County Executive.
36
County governments are providers of essential
local services.
5.3.2 Composition, Qualifications and Election of County Assembly
Members
The Constitution makes provision for the composition of the County Assembly.
Under Article 177 of the Constitution, the County Assembly shall be composed of37
a. members elected by the registered voters of the wards, each ward constituting
a single member constituency,
b. the number of special seat members necessary to ensure that no more than
two-thirds of the membership of the Assembly are of the same gender;
c. the number of the marginalized groups, including persons with disabilities and
the youth, prescribed by an Act of Parliament ; and
d. The Speaker, who is an ex officio member.
5.3.3 Qualifications for Election as a Member of a County Assembly
Under Article 177(1) of the Constitution, a member of a County Assembly shall
represent a ward. To qualify for election into a County Assembly a person must be a
registered voter
38
and is either nominated by a political party or is an independent
candidate supported by at least five hundred registered voters in the ward
concerned.
39
The Constitution is silent on the question of whether or not a person
must be a registered voter in the Ward in which they seek to be elected.
Under Article 193 (1) (b) of the Constitution, a candidate for the position of County
Assembly member must satisfy any educational, moral and ethical requirements
prescribed by the Constitution or an Act of Parliament. Under Chapter Six of the
Constitution, certain leadership and integrity standards are required of any person
OUTSTANDING ISSUES

Whether the IEBC should conduct
political party nominations
Whether the deputy speakers
position ought to be a permanent
or ad hoc position.
Page | 73
aspiring to be a State officer. These prerequisites also attach to persons seeking the
office of County Assembly
Member. A candidate for
the office of County
Assembly representative
must be a person
manifesting personal
integrity, competence and
suitability for that
position. They should
possess the ability to act
objectively and impartially
without prejudice on
account of nepotism,
favouritism or corruption.
They must at all times be
guided by a desire to
render a selfless service
based on public interest
and be disciplined and
accountable to the public.
The success of the
functions of County
Assemblies will largely
depend on the capacity of
the persons elected to sit
in these institutions. The
value of house debates,
planning of development
activities and overall
supervision over the
County Executive will be
subject to the competence
and ability of the County
Assembly Members to
understand their roles and
to fully engage with the
other County government institutions. A robust County Assembly shall provide the
necessary checks and balances over the County Executive. Unless members of the
County Assembly possess the right aptitude to undertake their duties the Assemblies
BOX 5.3: COUNTY VISIT SUBMISSIONS ON PROPORTIONAL
REPRESENTATION

Lists should be developed by party grass roots leaders, with
strict vetting of all interested candidates with special
consideration of all vulnerable groups, without interference from
party headquarters and then presented to the party for
confirmation
Give the list of nomination before elections, so there is fairness
Make the lists public and if possible publicized.
Vetting should be done for party nominated leaders
Party branches give the names to the electoral commission
Through the National Delegates Conference, each party will then
present the party list for presentation.
This should be left to the political parties and their leaders to
determine.
Follow the political parties act on developing the list, e.g. party
members come up with a list
Guided by the party constitution, consider all the ethnic groups,
interest groups, geographical locations and special communities
Each party to have its own nomination procedure
A committee consisting of members of the public should vet the
candidates
IIEC should conduct elections of all political parties to ensure
fair representation and curb malpractices during party elections
IIEC should do the nominations in only one day for all political
parties
There should be a vetting committee at the County level and a
further vetting by IIEC and then approval by the County
Assembly
The National Elections Commission should ensure that every
political partys manifesto has a structure or system of
nomination clearly defined.
Have party vetting committee at County level
There should be an independent commission for making party
lists
Current way of nominations should be retained
The lists should be proportional in all locations or sub locations
according to the party strength
When developing the lists, political parties should put in to
consideration the marginalized and the minorities
Parties give members a chance to take part in making this list
women, etc. be included
The National Elections Commission should ensure that every
political partys manifesto has a structure or system of
nomination clearly defined.
Have party vetting committee at County level
There should be an independent commission for making party
lists
Current way of nominations should be retained
The lists should be proportional in all locations or sub locations
according to the party strength
When developing the lists, political parties should put in to
consideration the marginalized and the minorities
IIEC should conduct elections of all political parties to ensure
fair representation and curb malpractices during party elections
Page | 74
will not deliver and may be a weak cog in the implementation of the principles of
devolution.
During the public
consultations, a variety
of views have been
expressed on the
qualification, leadership
qualities and experience
of candidates for the
office of County
Assembly member. It is
evident that the
recommendations are as
varied as the proposers.
5.3.3.1 Educational
Qualifications
On educational
qualifications, it has
been suggested that a
County Assembly
member should have a
minimum education
standard of a primary
school certificate. Others
have proposed that the
candidate should be a
holder of a form four
certificate, a diploma or
a university degree.
Clearly the suggestions
have been coloured by
the educational
qualification of the
person making the
recommendation and the
expectations and
awareness of the objects of devolved government. Persons who have attained a higher
educational status seem to think that a County Assembly member ought to be one
who has made a substantial advancement in formal education. Further, those
BOX 5.4: COUNTY VISIT SUBMISSIONS ON QUALIFICATIONS OF
GOVERNOR, DEPUTY GOVERNOR, SENATOR, COUNTY ASSEMBLY
MEMBERS

For all the positions candidates must be: Adults of sound mind,
respectable persons in society , registered voters in the County with
high integrity, no criminal record, corruption free, and visionary, team
player, not bankrupt and must declare their wealth, KACC cleared and
God fearing.
Continuous residency in the County 5/10 years/ native of the County
Educated minimum form four level, competencies in English and
Swahili, with managerial skills
Senator:
Should not have been a politician / Politician with Five years of
experience
Law Degree holders
Should not have worked in the present government
Elected by majority, not simple majority
If the Senator is a man the governor should be a woman
Ex-officio Member of County Assembly, to facilitate linkage
Responsibilities/Accountability
Regular consultations between Senate and Governor
Legislate: Senators address the County Assembly and quarterly
public consultations
Attend Quarterly meetings with the County Executive
County Speaker
Legal background/a lawyer
County Speaker should be elected by County Assembly Members
Should be of opposite gender from the County Governor
If Speaker is male then Deputy is female
County Assembly Members:
Resident, political knowledge and experience
Serving Councillors
7% of County Assembly seats should be set aside for those with
disabilities
Proportional representation for marginalized groups in counties
Participatory Governance/Accountability
County government to get public views for projects
County forums for airing complaints
County hansard
Feedback mechanisms
Each County should establish a TV and FM radio stations broadcast
County Assembly proceedings
Removal
The national government full powers to suspend non-functioning
Counties
Establish Commission to run the County government for the duration
of suspension
Intervene where this is misuse of resources, inability to perform
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exposed to the objects of devolution and have high expectations on self-governance
prefer stringent qualifications and experience.
Strong views have been expressed on the need to recognize that if the position of
County Assembly Member is to remain the basic unit of representative democracy
then it should be available to all citizens notwithstanding lack of any meaningful
formal educational attainments. The power of this argument is based on the fact that
other leadership qualities may be possessed of persons who may not be literate or
may not have advanced in formal education, and that participatory democracy should
not be inhibited by prescriptions that deny the right to be to be a candidate.
The debate as to whether there should be a set of minimum educational standards for
a member of a County Assembly may need to be examined against previous attempts
to legislate on this matter, Constitutional provisions and the demands on sustainable
functioning of County Governments. In the Bomas draft report which informed the
failed 2005 proposed Constitution, there was unanimity of public opinion that a
member of a County Assembly should be literate; holding a minimum of a Form 4
Certificate. It is proposed that this should be upheld. It cannot be denied that
educational progression has an impact on the quality of contributions that a member
will make in the Assembly and therefore a parallel link with democracy and good
governance.
5.3.3.2 Ethics and Integrity
The public paid considerable attention on the moral standing of County Assembly
members. It was proposed that County Assembly members should be persons
without a criminal record and who have earned the respect of the community. It is
suggested that before receiving the Election Management Bodys go ahead to
campaign candidates must be vetted by the Kenya Anti-Corruption Commission
(KACC) and issued with a clearance certificate. They should possess a measure of
management experience in their fields of expertise and should be residents of the
County in which they seek to be elected. It does not appear that residency in the Ward
which one seeks to represent is a critical consideration.
There has however been a desire to restrict membership of the County Assembly to
the age bracket between 25 to 45 years. This is a view that finds accommodation
amongst the youth is, however, not shared by the elderly. The elderly members of the
society would rather that there is no age limitation.
5.3.3.3 Election of County Assembly Members
The election of members of County Assemblies is governed by Article 90 of the
Constitution which provides that provides that elections shall be on the basis of
proportional representation through the use of party lists. The Independent Electoral
and Boundaries Commission is mandated to supervise these elections. The choice of
Page | 76
using the proportional representation methodology is to ensure that the views of a
cross-section of society are represented unlike the winner takes all approach where
the votes going to a losing candidate are simply lost along with the priorities and
concerns of those voters. As a result of this approach there is a more diverse range of
representation that allows more women, marginalized groups and minorities to be
represented.
The closed party list as is a variant of party-list proportional representation40 where
voters vote for a party as opposed to an individual. Because closed party lists are
impersonal, there is a higher degree of party proportionality which further ensures
the objectives of women and the priorities of other marginalized groups and
minorities and otherwise are not reliant on winning. Regardless of the direction the
election takes, there will be some seats or representatives of these groups.
Furthermore the list is predetermined thus ensuring that no political power struggles
and conflicts ensue post-elections further compromising the position of marginalized
groups.
Figure 5.2: Elections and Electoral Processes at the County Level

The members in a closed party list are not faced with intra-party competition, which
lessens the likelihood of negative campaigning and a governing environment driven
by "politics of personality." As such it is the objectives of the party rather than the
individual politicians that take priority thus ensuring the priorities of all voters are
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taken into account even if they do not represent the majority of voters as is the case
with marginalized groups. A closed list also discourages manipulation of voters in
favour of any one candidate thus even a less popular candidate that promotes less
glamorous priorities such as minority rights has a voice. In a nation such as Kenya
where the politics is largely personality oriented, this electoral strategy in the
counties is sure to see a boost in the circumstances of marginalized groups.
Voting for a closed list will discourage corruption from the party members as
compared to the open where individuals use money in influencing voters. The parties
will have to come up with a party list that is attractive enough, consisting of very
competitive members in order to be able to win the confidence of voters. In operating
a closed party list the minorities and marginalized communities rights will be
protected unlike in the case where we have an open list the minority are marginalized
and their voice does not prevail after voting for the party.
The closed party list discourages the existence political parties on ethnic, racial, or
religious lines in order to be able to have the good will of the diverse groups hence
discouraging marginalization for some groups.
The closed list representation is most preferred because it takes into account the
interests of the voters and there are no changes that can be made on the party list
after the elections have been done hence making the voters expectations as they voted
for the party to prevail.
The marginalized and minority groups are likely to receive proper representation at
the County level by offering a candidate to a given party which they intend to vote for.
It is proposed that legislation should provide the number of members of marginalised
groups, including persons with disabilities and the youth who should be represented
in the County Assembly.
5.3.3.4 Disqualification from Elections
The Constitution sets down certain specific criteria disqualifying persons from being
election as members of a County Assembly.
41
A State officer or other public officer,
other than a member of a County Assembly, or a person who has within five years
immediately before the date of an election served as a member of the Independent
Electoral and Boundaries Commission, or is of unsound mind or an undischarged
bankrupt cannot be elected as a member of a County Assembly. Further, a person
who is serving a sentence of imprisonment of at least six months or has been indicted
on an offence for misuse or abuse of a State office or public office or who has
contravened the principles of leadership and integrity under Chapter Six of the
Constitution is also ineligible. The legal disqualifications on account of being found
guilty by a court of law do not hold unless all review or appeal options have been
exhausted.
42

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5.3.3.5 Election of the Speaker of the County Assembly
The Constitution provides that each County Assembly shall have a Speaker who will
be elected by members from amongst persons who are not members of the
Assembly.
43
The Speaker shall preside over the sittings of the Assembly.
44
In the
absence of the Speaker the Assembly shall elect one from amongst themselves to
preside.
45
The Speakers office is endowed with considerable power as the holder also
performs other administrative and procedural functions.
Article 178(3) of the Constitution empowers Parliament to enact legislation providing
for the election and removal from office of Speakers of County Assemblies. The Fifth
Schedule to the Constitution requires this to be done within one year of the effective
date. The election of the Speaker should not provide any challenge as the
Constitution provides that on the first day of each new Assembly, each party
represented in the County Assembly, or a coalition of parties should provide a
candidate to be voted on. If only one candidate is nominated, they should be
declared elected. If there is more than one candidate, and if no consensus is
obtained, the members should vote and the candidate with the highest number of
votes declared so elected.
The Speaker assumes the position of the contact person for the Assembly and serves
for the period of the Assembly. There is unanimity of thought that a County Speaker
should be a person knowledgeable in law, well experienced and versed with the
process of law making.
5.3.3.6 Management of Elections
Under Article 88 (4) of the constitution, the independent electoral and boundaries
commission shall be responsible for the conduct and supervision of referenda and
elections to any elective body or office established by the constitution or any Act of
parliament. Subsequently the commission shall carry out all elections in the counties.
Under article 90 the commission shall be responsible for determining which persons
shall be nominated to the County Assembly by use of the party lists. In accordance
with article 177 (1) (b) the commission shall undertake the computation of the special
nomination seats necessary to ensure that no more than two thirds of one gender
occupy the County Assembly.
5.3.4 Mandate and Functions of the County Assembly
The County Assembly is the voice of the residents of the County. The Assembly
provides legitimacy for and accountability over the County Executive. The Assembly
holds the legislative authority of the County. A well-structured and suitably managed
County Assembly shall enact County laws,
46
direct and limit the power of the
Governor and the County Executive and, while respecting the principle of separation
of powers, exercise an over-sight role in all the activities within the County.
47
County
Page | 79
legislation deals with matters that are within the jurisdiction of the County. It may be
preferable that model legislation be developed on matters that are common to
counties that wish to deal with similar issues. This will remove uncertainty and
confusion on domestic County laws on comparable subject matter.
A County Assembly is charged with the responsibility of receiving and approving
plans and policies for the exploitation and management of the Countys resources and
the development and management of the Countys infrastructure and institutions.
48

In the discharge of its functions a County Assembly shall be bound by national and
county legislation. For the better running of its functions a County Assembly may
work through County Assembly Committees.
5.3.4.1 Other Functions of the County Assemblies
The Constitution makes room for the County Assembly to discharge other functions
for instance enacting legislation that may set out the structure and framework for the
better administration and management of County governments.
49
Accordingly it is
proposed that County Assemblies be given power to undertake other responsibilities
including:
Approval of and oversight on budgets
Approval of development projects
Supervision of other units within the County through political authority,
guidance, and direction
Monitoring the execution of projects under approved development plans and
assesses and evaluates their impact on peoples development.
Approving investment decisions.
Approving of loans.
The County Assembly should be able to control and direct the economic activities
within the County and ensure an equitable and acceptable development and the use
of resources and to guarantee that taxation policies and levels do not inhibit trade
and industry and yet be sufficiently flexible as to permit collection of adequate
resources to advance the interests of the County.
One of the traditional functions of the County Assembly will be the scrutiny of the
County Executive Article 185 of the Constitution vests legislative authority in the
County Assembly; this includes law making an oversight over the Executive
Committee. This requires the enactment of laws that enable the County Assembly to
exercise oversight functions through for instance scrutiny of the budget whereby the
Executive is required to justify its policies.
The law will be enacted to provide for a wide range of instruments to scrutinize the
work of the County Executive and County Organs. This should include; budgetary
Page | 80
powers of the County Assembly the submission of written questions to the County
Executive which will require direct answers to County Members at questions-and -
answer session with the County Executive Committee members, debate on topical
matters.
5.3.4.2 Proposed Duties of Members of the County Assembly
It is proposed that Parliament legislate on basic obligations for a member of a County
Assembly. It is assumed that such legislation will enhance performance and
accountability on the part of individual members of the County Assembly and on the
County Assemblies as corporate entities. Presently members of Parliament and those
serving in local authorities have no job description that directs or governs their
vocation. This nebulous and unformulated environment leads to the exercise of
labour on uncoordinated activities which do not contribute to public benefit. Public
views suggest that a member of a County Assembly should at all times;
Maintain close contact with and consult the people of their ward on issues to
be discussed in the Assembly and to collate their views, opinions and
proposals.
Present the views, opinions and proposals of the people of his ward in the
County Assembly
Draw attention in general debate to national policies which are relevant to the
debate in the house.
Actively participate in the work of any sub-Committee appointed to
Maintain frequent liaison with organized productive economic groupings in
the County.
Take part in community activities.
Appraise the electorate on the workings of the Assembly and debates and
decisions passed.
5.3.5 Removal from Office
Once elected, a member of a County Assembly holds office for a period of five years
unless the member dies
50
or is absent from eight sittings of the Assembly without
permission, in writing of the Speaker, and is unable to offer a satisfactory explanation
for the absence.
51
Such absence will necessitate that the member forfeits his seat. A
member may also resign in writing,
52
or may lose his seat if he resigns from the
political party that sponsored his election,
53
or if an independent, joins a political
party.
54

Page | 81
Article 104 of the Constitution gives an electorate the right, to recall a Member of
Parliament before the end of an electoral term subject to legislation on procedure.
There is abundant public support to have this right extended to cover County
Assembly representatives. It is suggested that legislation defines with sufficient
exactitude the failures which would give rise to the exercise of this radical power.
Perhaps a performance contract or a delivery scorecard would control arbitrary
discretion in the employment of this clause making it available in the very limited
occasions when a County representative is clearly underperforming and
disadvantaging the electorate.
5.3.6 Size and Population of
a County Ward
The Constitution requires the yet
to be established Independent
Electoral and Boundaries
Commission to review the
number, names and boundaries
of wards periodically.
55

Ordinarily, delimitation of wards
and constituencies must be
completed twelve month before a
general election. This
requirement is waived with
respect to a review of wards and
constituency boundaries
preceding the first elections
under the new Constitution. This
means that the yet to be
established IEBC may proceed to
delimit boundaries of wards for
the 2012 elections even if the
same was done inside the twelve
month period.
A critical issue for consideration
is the determination of the
criteria to be used to determine
the size and number of Wards in
Kenya, and consecutively, the determination of Wards per each County. The public
consultation s has elicited various views on the size and population of a County
Assembly ward.
WARDS

Size:
Baseline survey be done before deciding on the
number of wards and whether the existing ones are
sustainable, if weak they be merged.
Local elders who understand the County be involved
deciding on the size
Size, not less than 500 square kilometres/20 square
kilometres, 10 square kilometres, size of a location,
split some to be the size of a sub location.
Size to be guided by: economy, historical and
geographical patterns
8 wards in every constituency
Composition of 10 villages
All existing wards should remain and more can be
added
Two locations to make one ward, a location and sub-
locations be made into wards
Population:
Population should not be used to determine wards
A sub location for densely populated areas and a
location for sparsely populated areas
Should be divided according to a population quota to
ensure efficient service delivery
Should not consider population size in North Eastern
due to low population occupying very big area
Population of a ward not more than 1000 registered
voters/5000-20,000 people in a ward
Maximum population of a ward in urban centres must
not be more than 50,000 people.
For sparsely populated areas and 20000 people for
densely populated areas, not less than 5000
registered voters
The small wards to be merged to get 5,000 people
Registered voters, 5,000 voter, 250 km
Max 30,000 people
Public Participation:
Ward Citizen Forums (WCF) for citizen engagement
WCF right to access all official records for sectoral and
County departments
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It has been suggested that the Task Force should recommend a minimum and
maximum number of wards for each County and seek to distribute these wards
based on the criteria set out in sections 89(5) and 89(6) of the Constitution
56
.
The other approach is to take cognizance of public views that suggested that the
present boundaries of wards for municipal and County councils should be maintained
and translated into County Assembly wards. Yet others felt that these units would
proliferate into numerous unsustainable County wards and which may be a saddle
and a financial burden for the counties. In any case, this amounts to only maintaining
current local authorities, less County councils. For this reason it was suggested that
County wards should be demarcated to follow the administration units commonly
referred to as locations. This would largely pay obeisance to the age old regard for
community of interest and historical ties of the people. It is proposed that the
delimitation of wards must consider the interests of the minority and marginalized
groups.
On the question of population, the public proposals range from a population figure of
5000 residents to a population of 25000. The predominant view being is guided by
the need to offer a close and effective representation as well as a desire to maintain
sustainable units that will not be a mere drain on scarce resources. Whether using the
current location boundaries will reduce unsustainable wards and fulfil the desire for
effective fiscal management remains debatable. A more enlightened approach would
be to observe and borrow Constitutional requirements on Parliamentary
representation boundaries formula that may lead to some merger of current local
authority wards so as to establish more realistic boundaries for the County wards.
In terms of geographical size, there appears to be a commonality of thought that
highly populated areas should enjoy a dimension shrink while areas that are thinly
populated should suffer a land mass pull out in line with provisions 89(6) of the
Constitution.
Whatever alternatives are available, it cannot be conceived that the present number
or territorial extent of the Wards that feed into the local government units be
transformed into County Assembly Wards. That would retain the current local
government system of numerous Ward entities that would be expensive and
uneconomic for the County governments to maintain. There is a need for
ascertainment of a formula which will be used to collapse the existing units into
viable and feasible components. There is also need to provide guidelines and criteria
to the Independent Electoral and Boundaries Commission so as to inform the
delimitation of wards this should specify the impact the delimitation may have on:
appointments, limits of de-centralisation, structure of governance and marginalized
groups.
Page | 83
5.3.7 The Asymmetrical Transfer of Legislative Functions
Devolution is the transfer of power, specifically legislative power to governing bodies
at a sub-national level. However the transfer of power is neither always uniform nor
identical across the sub-structures created by devolution. In this instance I am of
course referring to the 47 counties created by devolution in Kenya. Asymmetrical
transfer means that some distinctions would be made between the various counties.
Thus different (counties would) possess different powers: one or more of the
(counties would have) considerably more autonomy than the other(s)
57
even though
their Constitutional status would remain the same.
This is actually a natural requirement or progression of the devolution process for no
two states can be said to be identical. Each one has different needs and capacities be
it from an infrastructural perspective or a social perspective. It is for this reason that
devolution is such a practical construct as it allows each County to individually
innovate and develop their unique resources and achieve their full potential. Some
counties will already possess the necessary capacity to assume a greater proportion if
not complete legislative control over their region. Other regions in Kenya will have to
lean far more on the legislative power of the central government as they will lack the
necessary capacity to generate and indeed effect legislative change independently.
5.3.8 County Assembly Legislation
The Constitution permits a territorial, intra-County power of legislation to individual
County Assemblies except as the issues touch on nationwide policies. The intention
of the Constitution is to allow County legislation if the same does not contravene
national laws. The equilibrium is set on a scale of comparison as to whether the
matter in contention is one of local or national jurisdiction. The guiding principle
seems to be a balance between the national good and County aspirations.
Whichever view one takes, due consideration should be given to the Constitutional
vision of permitting County Assemblies to steer legislation on County matters. A
significant consequence flows out of this principle; County legislation does not apply
outside the County territory. This means that different sets of laws may apply in
different countries on matters that are almost similar.
The County Assemblys power is confined to matters that are within the County
governments functional jurisdictional competence as listed the Fourth Schedule thus
Counties will be enacting legislation on the same issues and thus it is important to so
as to ensure cohesiveness in specified areas and to avoid inconsistencies with national
policies.
As it is may be difficult to determine the type of capacity the 47 County Assemblies
will have to enact legislation, and given the time and resources required to enact
legislation that conforms with the modern drafting rules and principles, it is proposed
Page | 84
that the Law Reform Commission be mandated to develop a generic or framework
legislations (draft model laws) on the common issues identified in the Fourth
Schedule which the Counties can then use and adapt to suit the circumstances in their
own Counties.
On the process of enacting laws, it is recommended that the legislative procedure
adopted by County Assemblies should be less elaborate as compared to the
Parliament so as to enable the process of enacting legislation in the counties be faster
and less costly to the tax payer It is also proposed that all Bills passed by County
Assemblies should be passed by Governor is the one who assents to bills emanating
from the House of Assembly.
The specifics of legislative procedures should be enacted in legislation so as to cater
for issues such as; Proposed that County Assembly Rules of Procedure and Standing
Order be enacted to provide for; Debate of County Public Bills, Private Bills, Sessional
Papers, Three Readings for Bills, Questions, Motions, Voting and establishment of
Committees.
5.3.9 Conflict of Laws
The Constitution makes specific provisions for the resolution of conflict of laws
between National and County governments in matters falling within the concurrent
jurisdiction of both levels of government.
58
National legislation overrides County
legislation in situations in which the National legislation is of a country wide
application
59
and the matter in contention cannot be properly regulated by each
individual County because of the need to establish norms and standards or national
policies.
60
A further important consideration for dominance of National over County
legislation is when the National legislation is required for the maintenance of
national security, economic unity, and the protection of a common market in respect
of mobility of goods, services, capital and labour. Moreover, if National legislation
entails the promotion of economic activities across the country or the promotion of
equal opportunity or equal access to government services or the protection of the
environment, then County legislation would have to give way.
61
Finally, National
legislation shall prevail over County legislation if the former is intended to prevent
unreasonable action by a County that is prejudicial to the economic, health or
security interests of Kenya or another County or impedes the implementation of
national economic policies.
62

5.3.10 Policy Issues and Recommendations on Legislation
A reorganization of the political and administrative structures is a pre-requisite to
changing the character of Kenyas democratic configuration.
County Assemblies should be strong institutions which represent the collective
aspirations of the ordinary citizens, acting in the interests of the community.
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There should be Political decentralization where political power and authority
is transferred to the County Assemblies, blended with a strong participatory
framework and autonomy for the success of County governments.
It is also proposed that Governor be granted powers to assent to all Bills
passed by County Assemblies.
County Assembly members should have as minimum, O level / Form four
academic qualifications and relevant experience.
It will be necessary to enhance the ability of elected leaders with technical
capacity through either nomination or appointment of persons with expertise
so as to enrich County Assembly debates.
Local civil society groups and the public should actively participate in the
County Assemblies public function so as to promote responsive and
accountable local governance and this right to participate should be
guaranteed through legislation.
County Assemblies should have various sub-Committees:- finance &
administration, health education,
social welfare etc.
Proposed legislation: County
Assembly Rules of Procedure and
Standing Order and Powers and
Privileges Bill
It is proposed that the
procedures for enacting County
legislation should be less elaborate
than that of Parliament so as to
save time and resources.
It is proposed that County Assembly Rules of Procedure and Standing Order
be enacted to provide for legislative procedures and:
Under Article 200 (1) of the Constitution, Parliament is empowered to enact
legislation to give effect to all matters appertaining to implementation of the devolved
system of government. Such legislation will provide for;
The number of wards in the County Assemblies
The educational, moral and ethical requirements for members of the County
Assemblies, the governor and the speaker
The procedure for election and removal from office of speakers of the County
Assemblies and the Governors
Powers, privileges and immunities of County Assemblies, their committees and
members
BOX 5.6: COUNTY VISIT SUBMISSION ON
THE PROCEDURES FOR ELECTION OF
COUNTY SPEAKERS

Democratic process to be established
Competitive hiring from within or without the
County
Interviewed by a panel of competent lawyers
Names of Two selected candidates sent to the
County Assembly for election
Elections to be managed by the IEBC
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Protection of minorities within the counties
Guarantee cultural diversity in the County Assembly and the County Executive
the County executive
County Assembly oversight over the County executive
Basic duties and obligations for a member of the County Assembly and the
Executive committee.
5.4 EXECUTIVE ARM OF GOVERNMENT
Kenya has historically experienced personalized and highly centralized governance
systems and practices. The search for inclusive, involving, and participatory
governance has taken the path of devolution. Political and administrative reforms
that have been going on since the 1990s, have sought to break with the past through
decentralization of powers to lower local governments. Devolved government was
found to be the most suitable mode through which greater participation of
communities in governance as well as oversight and ownership would be ensured.
Key principles of devolution are that County governments shall be based on
democratic principles, separation of powers, and that no more than two thirds of
members of representative bodies in the County shall be of the same gender
63
.
5.4.1 Composition and Structure of the County Executive
The Constitution provides for a County government for each County, consisting of a
County Assembly and a County Executive. The Executive authority of the County is
vested in and to be exercised by a County Executive Committee consisting of a County
Governor, deputy County Governor and members appointed by the County Governor
with the approval of the County
Assembly, but who should not be
members of the County Assembly
64
. The
equivalent of a presidential system has
been adopted for the County government,
whereby the Governor is the chief
political Executive of the County is
directly elected by the populace and
possesses the sole power to appoint
members of the Executive Committee.
Although the Executive normally refers to the entire branch responsible for the
implementation of laws in government, in County government there is a distinction
between the political leaders in the County Executive Committee, and the
administrative hierarchy. This distinction is necessary because it is only the political
leaders who will have political responsibility and accountability to the County
Assembly and citizens. The Constitutional provisions on decentralisation also refer to
BOX 5.7: COUNTY VISIT
SUBMISSIONS ON STRUCTURE

County Executive Committee
District Executive Committee
Ward Executive Community
Location Executive committee
Sub-County Implementation Units
Sub-location Executive Committee
Village Elders
Page | 87
decentralisation of functions and service delivery, and no provision is made of
creation of new political structures. It would therefore not be possible to create new
structures, but we have made recommendations on how Executive functions can be
decentralised in a later part of this section.
On the issue of distribution of Executive powers between the national and county
governments the Constitution envisages a situation where national legislation can be
implemented by the County Executive. This is meant to avoid unwieldy and expensive
bureaucracies at County level and calls for cooperation, coordination and
communication between the national and County Executives. There will also be need
for compromise and consideration of the interests of both governments. It must
however be pointed out that the need for compromise and coordination can make
decision making difficult and gridlocks are likely to arise. We recommend that the
legal framework in addition to providing for mechanisms of coordination and
communication also provides for solutions in the event of lack of compromise.
The provision for decentralisation of functions is in the interests of efficiency and
practicality. We recommend two ways of decentralising Executive functions. The first
is by way of delegation of functions to Executive Sub-Committees with the
responsibility of analysing proposals and recommending appropriate action to the
Executive Committee. These sub-Committees can be statutory or non-statutory and
with specific mandates. The Chair and Vice Chairs of all Sub-Committees will be
required to be members of the Executive Committee and other members can be co-
opted on the basis of their specific expertise.
The second is by way of legal provision for transfer of Executive power to other semi-
government agencies (parastatals or Boards) through corporatization, or to the
private sector through privatization. Corporatization refers to the reshaping of a
publicly owned organization to operate on private sector corporate principles.
Privatization refers to the transfer of a function entirely to the private sector. This can
be by contracting out with the County government maintaining some control
mechanisms or "getting out" of the function entirely, leaving provision of goods and
services to the marketplace.
Agency structures are preferable where the delivery of a function: should not
be subject to direct influence of the Executive committee or public servants e.g.
quasi-judicial functions
requires more operational flexibility
Page | 88
requires close and continuous participation of the public or private sector.
Corporatization and privatization have important implications in that they may
provide for more efficient local decision-making but not necessarily local governance
or local democracy. Membership of local Committees of parastatal organizations
usually reflects special
interests and expertise
rather than the
community as a collective
of people. Membership is
mostly appointed rather
than elected from and by
the community. Their role
in decisions is important
but will not inevitably
reflect wider community
opinion and values. This
may be local decision-
making, not necessarily
local governance
Accountability is required
to the local community
through rigorous
consultation and
reporting.
Key aspects that the
legislation will need to
address with respect to
agencies are:
The purposes,
roles, powers and duties of
the agencies
The relationship of
the agencies with other
County government
structures to ensure there
is no duplication, gaps or
overlaps in service delivery or authority
The responsibilities of the Executive committee for policy and administrative
decisions
EXECUTIVE COMMITTEE
Members of County Committee Qualifications:
Appointed from location level, representing each location,
vetted by the County Assembly and approved by the
Governor
70% of County civil service should be residents of County
Service delivery should be community driven through
committees such as County Education Committee
Hiring:
All appointments to get clearance from KACC
Should publicly declare personal wealth
Advertiseinterviewselectionnominationvettinghiring
Approval by Assembly and removal by 2/3 County Assembly
majority vote
Executive team should be geographically distributed from the
whole region
Removal
Use the County Service Committee
Have an Impeachment committee to remove them not
County public commission
County committee to investigate and recommend their
removal
Special Committee to evaluate them then recommend to the
governor in appointment and sacking
Vetting committee consisting of members of public should
recommend their removal
The removal should be done by the County Assembly
members upon justified under performance
By 51% of County Assembly members/ Resolution of two
thirds or 75% of County Assembly, either by motion
originating from County Assembly or from the petition from
the public
The Public Officer Ethics Act 2003 (POEA)
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The reporting relationships and requirements of the agency to the County
government structures
The size, composition and appointment process and procedures for the
members of the governing board of the agency.
5.4.2 Election, Appointment and Qualifications of the County Executive
The County Governor is directly elected by registered voters in the County, and
he/she nominates a qualified person as the deputy Governor who is declared elected
once the Governor is elected. The direct election of the Governor increases the degree
of accountability to voters. Electoral systems and processes used will influence the
effectiveness of democratic governance in the counties in many ways. First, the
legitimacy accorded an incumbent Governor will be shaped by the Governors
apparent scope of victory, which is influenced by the election method used. Second,
the interaction of the methods used for electing Governors and County Assembly
members will affect the extent of party fragmentation and the percentage of the
County Assembly seats controlled by the Governors party. Both of these factors will
affect the ability of the Governor to obtain legislative support for their policy
initiatives. Through its effect on the number of parties able to obtain representation
in the County Executive structures and County Assembly, the electoral system also
influences the fairness of political representation. Party systems also respond to the
realities of local politics and electoral systems, and produce corresponding structures
at the local levels.
5.4.2.1 Leadership and Integrity
The governance challenge under the new Constitution revolves around how to
cultivate an ethical leadership in both the political arena and the bureaucracy.
Leadership primarily refers to the ability to influence others to act towards a desired
goal. Ethical leadership refers to leadership that is founded on values and that
advances the public interest for the benefit of the majority. The main the guiding
principles of leadership and integrity as provided by the Constitution include:
selection on the basis of personal integrity, competence and suitability, or
election in free and fair elections;
objectivity and impartiality in decision making, and in ensuring that decisions
are not influenced by nepotism,
favouritism, other improper motives or corrupt practices;
selfless service based solely on the public interest, demonstrated by honesty in
the execution of public duties; and
the declaration of any personal interest that may conflict with public duties;
accountability to the public for decisions and actions; and
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discipline and commitment in service to the people
The Constitution seeks to reverse the governance paradigm by institutionalizing a
leadership with integrity. It does this primarily by: establishing an enabling
normative framework and setting parameters within which leadership will be
exercised under the new Constitution including: the responsibilities of leadership;
conduct expected of state officers; financial probity; restriction of certain activities by
public officers; and the requirements of citizenship for leaders. The Constitution
provides for the establishment of an ethics and anti-corruption commission for the
purposes of implementing the provisions on leadership and integrity.
Ethical behaviour and personal integrity in public life means that public officials act
in ways that they and society have accepted as right conduct and that this behaviour
is consistent with their personal values and commitments. Most people in public
office enter public service with honourable intentions, but there are enticements in
public life that can lead honourable individuals to make ethical misjudgements. To
curb the temptations of power and position, ethical laws are created that set limits on
public action. Ethics laws are usually created in response to some act that lawmakers
feel was of questionable ethical conduct.
Ethics legislation is only one way to set standards of ethical conduct by which public
officials should operate. Ethical government means much more than laws. It is a
spirit, an imbued code of conduct, an ethos. Laws and rules can never be fully
descriptive of what an ethical person should do. They can simply establish minimal
standards of conduct. Official judgment and discretion in the public interest must
also be governed by personal responsibility and knowledge of the consequences of
their actions. In the end, personal integrity will determine the level of ethical
behaviour in government. We recommend that there be an ethics laws to provide
some basic standard for ethical conduct and consequent penalties for unethical
behaviour. This law will address the following aspects: conflicts of interest, gifts,
financial disclosure, (gifts and financial disclosure are subcategories of conflicts of
interest), ethics oversight and vetting procedures.
Conflicts of Interest
Individuals serving in public office, whether elected, appointed or civil servants, all
have histories that may include other interests. This situation can sometimes create
difficult choices between an individuals personal interest and the interest of the
public. Conflicts of interest are often defined in terms of receiving a personal benefit
as a result of ones position or decision, particularly a financial benefit. Conflicts may
arise as a policymaker receives gifts or honorariums, in representing clients, or in
doing business with the state in which they make decisions on public policy. The law
will also require individuals not to vote in situations where a potential conflict of
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interest exists. The policymakers must state the conflict prior to a vote and ask to
excuse themselves.
Personal Financial Disclosure
The requirement of public leaders to disclose their personal financial interests
includes details on their occupation, any financial interest in businesses or other
sources of income, any leadership or board positions with corporations or properties
they hold. This information is to help determine whether a conflict of interest might
exist if these interests come into conflict with decisions made in the public trust. This
information is also required of the leaders spouse and dependent children.
Gift Restrictions
The category of gifts received from political lobbyists or supporters is one of the most
common areas restricted in ethics laws. Most states allow some level of giving gifts,
recognizing the difficulty of defining what is a gift and trying to assess the value of
such gifts. Options include zero tolerance which strictly prohibits gifts of any kind
or value. Another option is to place a specific monetary value on gifts received or total
amount from a supporters or lobbyist in a given year. A third option is to restrict gifts
only if they are viewed as influencing official action.
Oversight
There are two basic mechanisms for overseeing ethical conduct in government:
constitutional commissions and committees. The ethics and integrity commission is a
constitutional commission composed of citizen or public officials or other public
leaders who oversee political leaders and public employees compliance with ethics
laws and rules. Commissions investigate ethics complaints and determine penalties
or give advisory opinions. They may also adopt regulations to administer ethics laws,
provide ethics training, and receive financial disclosure and lobbyist reporting
documents.
Ethics committees are generally self-regulating bodies whose members are
legislators. This is a means of internal oversight provides for by legislators who
determine compliance with ethics laws and rules. These committees deliberate on
accusations of ethical violations of County government members and prepare codes
of ethics for the members. Procedures for the Ethics Committees are the usually as
follows:
A complaint is submitted in writing to the chair of the committee.
Following a preliminary investigation, if necessary, there is a formal hearing.
The committee can then make a recommendation to resolve the conflict.
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The recommendation is then sent to the legislative body for a vote. The
legislative body can accept, dismiss, or alter the recommendation. If the
recommendation is for expulsion or removal, it requires a 2/3 vote.
5.4.2.2 Vetting Processes
To hold public office, we recommend that individuals not only have to be competent
but also need to be persons of integrity. The qualities of public officers fall into two
basic categories, capacity and integrity. Capacity refers to the qualities that enable
personnel to fulfil the technical tasks of the institutions mandate. This is evaluated
by a persons qualifications, such as general education and professional training,
professional experience and competence, as well as her or his physical and mental
aptitude. Integrity relates to the qualities that enable a person to fulfil his or her
mandate in accordance with fundamental human rights, professional and rule-of-law
standards, including a persons financial propriety.
Vetting is an important aspect of determining capacity and integrity. Vetting can be
defined as assessing integrity to determine suitability for public employment.
Integrity is measured by a persons conduct. Vetting processes should, therefore, be
based on assessments of individual conduct. Vetting processes aim at excluding from
public service persons with serious integrity deficits in order to establish civic trust
and legitimize public institutions. The citizens are unlikely to trust and rely on
individuals with serious integrity deficits, which would fundamentally impair the
Countys capacity to deliver its mandate. We recommend that the legislative
framework on the vetting process should provide for vetting by the Ethics and
Integrity Commission of all persons seeking to be elected or appointed to the County
Executive Committees and provide for the basis of the assessment, in terms of
requirements and parameters of integrity standards and the vetting mechanisms and
procedures.
The legislation should provide for the following to enable effective vetting:
The classification of information, assets, and sites, and exempts the vetting
procedure from principles of the privacy law.
Entitlement to the ethics and integrity commission to collect personal
information not only from vetting candidates themselves, but also from other
people and organizations. Such disclosures by others of personal information
about the candidate should not be a breach of law
A set of administrative directives and guidelines that give standard procedures
to be used across County governments
The rights of candidates including to be informed of the results of the
background check and if a clearance has been denied of the grounds of a
criminal record, or as a result of financial inquiries, the candidate should be
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shown the information on which the decision was based, and should have the
opportunity to correct any inaccuracies
The right to appeal in case of denial of clearance
5.4.2.3 Qualifications for Election/Appointment
A person is eligible for election as a member of a County Assembly or Governor/
Deputy Governor if the person is registered as a voter; satisfies any educational,
moral and ethical requirements prescribed by the Constitution or an Act of
Parliament; and is either nominated by a political party or is an independent
candidate supported by at least five hundred registered voters in the ward concerned.
The Constitution has introduced measures such as allowing independent candidates
to run in local elections
65
, and the principle that no more than two thirds of members
of representative bodies in the County shall be of the same gender, and limiting the
length of term for the County Executive Committee to two five year terms.
There were varied submissions on the nature of educational and other qualifications
required of the Governor, Deputy Governor and County Executive Committee
members. One of the arguments that has been put forward is that setting educational
qualifications would be unconstitutional since the Bill of Rights provides that every
citizen has a right to be a candidate for public office, or office within a political party
of which the citizen is a member and, if elected, to hold office
66
. The Constitution
however does allow for limitation of rights to the extent that it is reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom, and political rights are not among those rights that cannot be limited
67
.
Secondly the Constitution expressly provides that qualifications for election include
any educational moral and ethical requirements prescribed by Parliament or
legislation
68
. It is important here to note that the requirements of competence and
suitability which is one of the principles of leadership and ethics can only be
operationalised through educational and professional qualifications. These
qualifications must also be read in the light of the functions that the County Executive
will be required to perform which are elaborated in a separate section of this chapter.
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It is our recommendation that the minimum educational and professional
qualifications of the Governor, Deputy Governor and Executive Committee members
be as follows:
Must be holder of at least a first degree from a recognised university
Fluent in Kiswahili and English
Meet the requirements of leadership and integrity of the Constitution
Have
knowledge and
experience and
have a
distinguished
career of not
less than five
years in fields
not limited to
public
administration,
finance,
management,
law, economics,
human rights,
social
development or
governance.
In addition the
Governor and
Deputy
Governor
should not be
from the same
gender, and no
more than two-
thirds of the Executive Committee should be from one gender.
5.4.2.4 Election of Governor
The Constitution currently provides for elections for County Governors and County
Assembly members on the same day as those for the President and members of
Parliament the second Tuesday of August of every fifth year. Separating elections of
national and county political leaders presents logistical difficulties, but has the
advantage of allowing for local concerns to predominate during the County electoral

Governor:
Degree: in public administration, economics, humanities, social
sciences, community development
10 years experience
Elected by majority, not simple majority
Headed a government department and show what unique
contribution has been done in that department
Responsibilities/Accountability
Link between County and national government
Monthly statements by the governor
Formation of a vetting committee headed by the governor
Question answer sessions with the public, County speech at
legislated time
Information section in the governors office
Have a spokesman to tell people over the radio on the goings-on
in the County.
Through chiefs when disseminating information
Have face to face forums with the governor to answer public
questions
Deputy Governor:
At least 5 years experience in public or private sector,
nominated by governor and approved by County Assembly,
demonstrated past success in project management,
Computer savvy,
proven track record of involvement in community projects,
Should be a technocrat
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cycle and County leadership to function more independently of higher authorities,
and also generally raises the profile of County government.
If the local electoral system does not secure a real competition among local
politicians, devolution might end up strengthening the hands of local political
strongmen. Political competition among local politicians increases the chances for
vulnerable groups to be included into the decision-making processes. More
importantly, greater and more meaningful political competition for local political
offices also results in increased level of uncertainty among local political elites, in that
citizens have a means of control over elected officials through the presence of viable
electoral alternatives, and this enhances the responsiveness of these elites to the
concerns of the citizenry.
The extent to which citizens voices are effective through the electoral system at
County level will also depends on factors beyond the citizens control. Representative
democracy provides citizens with an opportunity to vote, but without certain
mitigating features, citizens are often forced to accept the agendas set by political
parties. Party system features in a particular County will mainly depend on elements
such as the number of parties competing in the County elections, rules governing the
financing of parties, rules governing the participation of disadvantaged groups, such
as women or certain minority groups, and the availability of parties based on
ethnicity or religion. The representation of a broad range of groups and interests in
governments and political processes more generally, is not only symbolically
important, but it also improves the quality and legitimacy of decisions.
The general principles that therefore should guide design of electoral system, as well
as the process of choice itself are
69
:
Representation
The basic task for an electoral system is to translate votes into seats; to transform the
expressed will of the voters into people who will represent it. There are many views of
what fair representation is geographic representation, descriptive representation,
ideological or party political representation but regardless of the view that is taken
in each country, representation as a principle is a key guide when designing the most
suitable electoral system.
Transparency
It is important that the mechanisms of the electoral system be as transparent as
possible and known to both voters and political parties and candidates well in
advance in order to avoid confusion and distrust in the results they produce at
elections. The process through which the choice of electoral system is arrived at also
benefits from transparency for the same reasons. If stakeholders arguments and
influence over the process of review, reform or adoption are presented in an open
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way, the process and the electoral system arrived at will have a greater chance of
being seen as legitimate.
Inclusiveness
The electoral system will have a greater chance of being accepted as fair and
legitimate if it is considered to work in an inclusive manner. This means not only that
the electoral law allows as many as possible citizens to vote (including inclusive
suffrage, making sure that the system is easily understandable, and assuring access
for all to the polling station), but also that the mechanisms of the electoral system do
not overtly discriminate against any one group in society, minority or otherwise.
From the views given by the public on election of the Governor, it was clear that there
was consensus that a plurality/majority system was preferred. The principle of such a
system is that after votes have been cast and totalled, the candidate with the most
votes is declared the winner. However, there were differing views as to whether the
majority that was required is a simple majority or an absolute majority. The First Past
The Post (FPTP) system is the simplest form of plurality/majority system, using
single member districts and candidate-centred voting. The voter is presented with the
names of the nominated candidates and votes by choosing one, and only one, of
them. The winning candidate is simply the person who wins the most votes; but not
necessarily an absolute majority of the votes.
Majoritarian systems
70
try to ensure that the winning candidate receives an absolute
majority (i.e. over 50 per cent). The systems in essence makes use of voters second
preferences to produce a winner with an absolute majority if one does not emerge
from the first round of voting. The first round is conducted in the same way as a
single-round plurality/majority election using FPTP. A candidate or party that
receives a specified proportion of the vote is elected outright, with no need for a
second ballot. This proportion is normally an absolute majority (over 50%) of valid
votes cast, although a different figure can be used to ensure majority. If no candidate
or party receives an absolute majority, then a second round of voting is held and the
winner of this round is declared elected. The details of how the second round is
conducted vary in practice from case to case. The most common method is for it to be
a straight run-off contest between the two highest vote winners from the first round;
this is called majority run-off. It produces a result that is truly majoritarian in that
one of the two participants will necessarily achieve an absolute majority of votes and
be declared the winner.
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Table 5.1: Advantages and Disadvantages of the Simple and Absolute Majority Electoral Systems
ADVANTAGES DISADVANTAGES
Simple Majority (FPTP) Absolute Majority Simple Majority (FPTP) Absolute Majority
FPTP systems are particularly praised for being
simple to use and understand. A valid vote requires
only one mark beside the name or symbol of one
candidate. Even if the number of candidates on the
ballot paper is large, the count is easy for electoral
officials to conduct.
It promotes a link between constituents and
their representatives, as it produces a legislature
made up of representatives of geographical areas.
Elected members represent defined areas of cities,
towns, or regions rather than just party labels.
It allows voters to choose between people rather
than just between parties.
It gives a chance for popular independent
candidates to be elected. This may be particularly
important in developing party systems, where politics
still revolves more around extended ties of family,
clan, or kinship and is not based on strong party
political organizations.
It advantages broadly-based political parties. In
severely ethnically or regionally divided societies,
FPTP is commended for encouraging political parties
to be broad churches, encompassing many elements
of society, particularly when there are only two major
parties and many different societal groups.
It provides a clear-cut choice for voters between
two main parties. The inbuilt disadvantages faced by
third and fragmented minority parties under FPTP in
many cases cause the party system to gravitate
towards a party of the left and a party of the right,
alternating in power. Third parties often wither away.
It gives rise to single-party governments and
coalition governments are the exception rather than
the rule.
It gives rise to a coherent opposition in the
legislature.
It excludes extremist parties from representation
in the legislature. Unless an extremist minority partys
electoral support is geographically concentrated, it is
unlikely to win any seats under FPTP.
can encourage diverse
interests to coalesce
behind the successful
candidates from the first
round in the lead-up to
the second round of
voting, thus encouraging
bargains and trade-offs
between parties and
candidates. It also enables
the parties and the
electorate to react to
changes in the political
landscape that occur
between the first and the
second rounds of voting.
allow voters to have a
second chance to vote for
their chosen candidate, or
even to change their
minds between the first
and the second rounds.
lessen the problems of
vote-splitting, the
common situation in many
plurality/majority systems
where two similar parties
or candidates split their
combined vote between
them, thus allowing a less
popular candidate to win
the seat.
It excludes smaller parties from fair representation, in the sense that a party
which wins approximately, say, 10 per cent of the votes should win approximately 10
per cent of the legislative seats. In the 1998 general election in Lesotho, the Basotho
National Party won 24 per cent of the votes but only 1 per cent of the seats. This is a
pattern which is repeated time and time again under FPTP.
It excludes minorities from fair representation. As a rule, under FPTP, parties put
up the most broadly acceptable candidate in a particular district so as to avoid alienating
the majority of electors. There is strong evidence that ethnic and racial minorities across
the world are far less likely to be represented in legislatures elected by FPTP.
It excludes women from the being elected. The most broadly acceptable candidate
syndrome also affects the ability of women to be elected to legislative office because
they are often less likely to be selected as candidates by male-dominated party
structures..
It can encourage the development of political parties based on clan, ethnicity or
region, which may base their campaigns and policy platforms on conceptions that are
attractive to the majority of people in their district or region but exclude or are hostile to
others. This has been an ongoing problem in African countries like Malawi and Kenya,
where large communal groups tend to be regionally concentrated. The country is thus
divided into geographically separate party strongholds, with little incentive for parties to
make appeals outside their home region and culturalpolitical base.
It exaggerates the phenomenon of regional fiefdoms where one party wins all the
seats in a province or area. If a party has strong support in a particular part of a
country, winning a plurality of votes, it will win all, or nearly all, of the seats in the
legislature for that area. This both excludes minorities in that area from representation
and reinforces the perception that politics is a battleground defined by who you are and
where you live rather than what you believe in.
It leaves a large number of wasted votes which do not go towards the election of
any candidate. This can be particularly dangerous if combined with regional fiefdoms,
because minority party supporters in the region may begin to feel that they have no
realistic hope of ever electing a candidate of their choice.
It can cause vote-splitting. Where two similar parties or candidates compete under
FPTP, the vote of their potential supporters is often split between them, thus allowing a
less popular party or candidate to win the seat.
It may be unresponsive to changes in public opinion. A pattern of geographically
concentrated electoral support in a country means that one party can maintain exclusive
executive control in the face of a substantial drop in overall popular support.
Finally, FPTP systems are dependent on the drawing of electoral boundaries.
Boundary delimitation may require substantial time and resources if the results are to be
accepted as legitimate. There may also be pressure to manipulate boundaries by
gerrymandering or malapportionment.
Majoritarian systems place
considerable pressure on the
electoral administration by
requiring it to run a second
election a short time after the
first, thus significantly increasing
both the cost of the overall
election process and the time
that elapses between the
holding of an election and the
declaration of a result. This can
lead to instability and
uncertainty.
Majoritarian systems also
place an additional burden on
the voter in terms of time and
effort required to cast the vote
as the voter has to make it to
the polling station twice, and
sometimes there is a sharp
decline in turnout between the
first round and the second.
Majoritarian systems share
many of the disadvantages of
FPTP. Research has shown that
in France it produces the most
disproportional results of any
Western democracy, and that it
tends to fragment party systems
in new democracies.
One of the most serious
problems with majoritarian
systems is its implications for
deeply divided societies. Losers
in the run-off phase have little
incentive to play the democratic
opposition and this is often a
trigger for conflict e.g in Angola
and the Congo.

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There were various proposal made on the majoritarian proportions needed for the
election of the Governor from the county hearings:
1. Option One: An Absolute majority of 50% + 1 votes
2. Option Two: An Absolute majority of 50% + 1 votes and at least 25% votes
cast in half of the ward in the county
3. Option Three: At least 25% of votes cast in half of the wards in the county
What is important to note is that there are only two options: a simple majority or an
absolute majority of any of the above three variants. These options have to be
weighed in light of the advantages and disadvantages of a simple FPTP and
Majoritarian plurality system as illustrated in the Table 5.1
In order to ensure effective political competition and legitimacy, and to facilitate
political stability, we recommend that the Governor be elected either by a simple
majority of votes cast in the County or by at least 25% votes cast in more than half of
the wards in the County.
5.4.2.5 Appointment of Executive Committee Members
The composition of the Executive committee can follow two different modes: the first
is composition along party lines where the Governor chooses members mainly along
party lines and the political affiliation of the member is the principal factor taken into
account. The second mode is where the composition is prescribed by law and it is not
left to the political process or wishes of a Governor. The Constitution states that one
of the principles of governance is inclusiveness and one of the principles of
devolution is to foster national unity by recognizing diversity. It is also clearly stated
that the law must ensure that the community and cultural diversity of a County is
reflected in County Executive committee; and also protect minorities within
counties
71
. There is thus a clear constitutional requirement for a balanced Executive
committee composed of representation from different regions, ethnic or religious
groups from a County. The Constitution also requires approval of County Executive
appointments by the County Assembly.
Granting power of selection of Executive Committee members exclusively to the
Governor may lead to a situation where all members of the Executive Committee are
from the same gender, ethnicity, or regional area. In counties with multiple ethnic
groups it is less likely that members of minority groups will hold the position of chief
Executive and by extension in the Executive Committee. Approval by County
Assembly may also not fully address the requirement of a balanced Executive
committee, especially in circumstances where the majority party in the County
Assembly is also the Governors party.
We therefore recommend two additional safeguards. The first safeguard is for the
legislative framework to specifically provide for a pluralistic Executive Committee in

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terms of gender, minorities and region representation. This system will be
particularly effective where there are multiple, dominant ethnic or religious groups
because it ensures a balanced representation within the Executive Committee from
different groups. In terms of mode of appointment we do not recommend a
competitive process as this will unreasonably fetter the discretion and responsibility
given to the Governor to ensemble a team that is accountable to him or her. The
second safeguard is the specific qualifications already provided for the Executive
Committee members to ensure that appointment is based on expertise rather than
corruption, favouritism, or nepotism.
5.4.3 Mandate and Functions of the County Executive
The main intention of the provisions of the Constitution is to create an autonomous
County Executive, controlled by locally elected representatives. Executive authority is
now constitutionally vertically divided between the central government and the
County governments, ensuring political autonomy and governance for County
governments in defined geographical areas
72
. The provisions on the County Executive
will be key in implementing the governance aspects of devolution that address the
development of democracy, the legitimacy of authority, and the accountability of
political leaders at County level. The Executive arrangements will also have a key
bearing on the functional aspects of devolution in terms of ensuring efficiency in
County administration and service provision.
The Governor and Deputy Governor are the chief Executive and deputy chief
Executive of the County respectively, and the Constitution states that the members of
a County Executive Committee are accountable to the County Governor for the
performance of their functions and exercise of their powers
73
. A County Executive
Committee has the following functions:
a. to implement County legislation;
b. to implement, within the County, national legislation to the extent that the
legislation so requires;
c. to manage and coordinate the functions of the County administration and its
departments; and
d. perform any other functions conferred on it by the Constitution or national
legislation.

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COUNTY EXECUTIVE COMMITTEE
MANDATE
Link between County and national
government
Monthly statements by the Governor
Question answer sessions with the public,
County speech at legislated time
Information section in the Governors office
Have a spokesman to tell people over the
radio on the goings-on in the County.
Through chiefs when disseminating
information Have face to face forums with
the Governor to answer public questions
A County Executive Committee may prepare proposed legislation for consideration
by the County Assembly and shall provide the County Assembly with full and regular
reports on matters relating to the County. These functions of the County Executive
Committee are in relation to the functions and powers given to County governments
under the Fourth Schedule of the Constitution.
The most important consideration in
operationalising the County Executive
functions
74
is that the legal framework
should focus on the role of the
Executive Committee as policy makers
and political representatives, rather
than giving them powers and
responsibilities that will result in their
micro-managing of the County and
assuming the management
responsibilities of the County
administration.
We therefore recommend that the
roles of the Executive Committee will
be as follows: political responsibility,
decision making, policy formulation and oversight, and County administration
establishment. The key areas which the law should address in this respect are:
The Processes of Policy Formulation and Approval(including legislation)
Budget Formulation and Approval processes
Procedures for the Establishment of the County Administration
Delegation powers
Access to Information and Public Hearings
Liability
Conflict of Interest and Disclosure Requirements
5.4.3.1 Political Accountability
Political accountability arises as a result of the fact that membership in the County
Executive arises through the political process, and their primary role is to meet the
political responsibilities as representatives of those areas for which they have been
elected or appointed. The Governor and deputy Governor will be required to gain
office by putting before the people a political platform that is found acceptable by a
majority of the voter.

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Accountability is the obligation on the part of public officials to report on the usage of
public resources and answerability for failing to meet stated performance objectives.
Accountability always operates together with transparency, which is the unfettered
access by the public to timely and reliable information on decisions and performance
in the public sector. Political accountability is also sometimes referred to as
democratic accountability and refers to accounting to the electorate about the way
government business is conducted. This form of accountability usually refers to
political leaders being held accountable through local elections and impeachment
procedures, but it also refers other political aspects such as campaign finances,
performance evaluation, and so on. This will need to be regulated through the
devolution framework legislation and also by national elections and political parties
legislation.
5.4.3.2 Democratic Decision Making
The decision making duty arises once the Executive Committee is in office, and it has
to determine the wishes of the people before preparing and implementing policies
and plans for the County. Here the Governor especially will be faced with political
decisions that may not be acceptable to a section of the electorate he or she
represents, and it is his or her duty to make decisions for the betterment and
development of the County as a whole. Balancing various competing interests will be
an integral part of the decision making functions of the Executive Committee. The
following key principles in decision making need to be reflected and detailed in the
framework legislation:
The responsibilities and relationships of the Executive committee in setting
strategic direction, supervising actions required to implement the direction
and the responsibility to manage and safeguard the Countys resources.
Collective responsibility of the Executive committee for the policies,
management and actions of the County government administration.
Opportunities for public input to help identify needs and set priorities,
comment on proposed policies and provide information and feedback
Effective communication of the Executive committee decisions in a manner
that provides information with clarity and accuracy.
5.4.3.3 Policy Formulation and Oversight
Policy formulation is a major function of the Executive Committee and it is this
function that will guide political direction, internal administrative functions,
expenditures, County legislation, the Executive Committees processes and
procedures and the provision of services. Financing the operations of the County will
be a basic responsibility of the Executive Committee in implementing policies and
laws, and will include budget formulation and scrutiny as well as responsibility for all

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expenditure incurred by the County government. The operationalization of policy
making will require the following aspects to be clearly detailed in the legislation:
Policy initiation and advance consultation. This will include details on the
County structures that can initiate policy, the steps in this process and
approval mechanisms. It will also involve public input in terms of discussion
papers, public forums and advisory committees and finally progress reviews.
Preparation of the policy documents particularly the requirement for written
submissions and proposals, the analysis processes and the format of Executive
committee documents and decisions.
The processes and format of communication of the policy decisions and
documents.
5.4.3.4 Establishment and Supervision of County Administration
The Constitution has given County governments the power to establish staff positions
in the County, and to hire, discipline and remove staff in those positions. This is
primarily an Executive function and legislation will provide the standard norms and
procedures to be followed by all counties in this respect. The County administration
will be the organizational units created for the purposes of managing the functions
and services of the County. The administration will be organized in the form of
departments or other similar units. These departments or units will be in two forms:
Central agencies providing support to the County Executive and all
departments
Line departments delivering services to the County residents.
The key role of the County administration in relation to the Executive committee will
be to provide information and recommendations with respect to policies and
financial requirements, and implementing of the Executive committee decisions.
Details on the structures and legislation requirements are provided in the sections on
the County public service and administration.
5.4.3.5 Checks and Balance
The provisions of the Constitution also provide the checks and balances between the
County Executive and County Assembly. The County Executive Committee shall
provide regular reports to the County Assembly
75
, and the County Assembly may
exercise oversight and approve the plans and policies of the County Executive
76
. This
appears to be a weak definition of oversight, and we recommend that there be more
formal oversight mechanisms in the legal framework and County Assembly standing
orders to enable County Assemblies and the public to oversee Executive policy
implementation and service delivery, and hold the County bureaucracy accountable
for their performances. We also recommend that the Governor be given veto powers
over legislation passed by the County Assembly as a check against unreasonable and

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unlawful County Assembly operations. The power to veto is the power given to the
Governor to withhold assent to a
bill passed by the County
Assembly. Veto powers are
exercised if a bill passed by the
County Assembly is criminal,
illegal or in violation of the
Constitution. The Governor will be
required to return to the County
Assembly any such law so
presented to him, and may
transmit therewith any
amendments which he may
recommend. The legislation will
therefore also require the
Governors assent to all Bills
passed by the County Assembly.
5.4.4 Removal from Office
The Constitution provides for circumstances when that the office of a Governor will
becomes vacant if he or she dies; resigns, in writing, addressed to the speaker of the
County Assembly; ceases to be eligible to be elected County Governor; is convicted of
an offence punishable by imprisonment for at least twelve months; or is removed
from office for the following reasons:
gross violation of the Constitution or any other law;
where there are serious reasons for believing that the Governor has committed
a crime under national or international law;
abuse of office or gross misconduct; or
physical or mental incapacity to perform the functions of office of County
Governor.
If a vacancy occurs in the office of County Governor, the deputy County Governor
shall assume office as County Governor for the remainder of the term of the County
Governor. If a vacancy occurs in the office of County Governor and that of deputy
County Governor, or if the deputy County Governor is unable to act, the speaker of
the County Assembly shall act as County Governor and an election to the office of
County Governor shall be held within sixty days after the speaker assumes the office
of County Governor.
Legislation will elaborate on the procedure of removal of a County Governor and
since the Governor is elected through a majority direct vote and the legitimacy that
ON RECALL ISSUES

Enact provisions for non-performing
Governors
Removal by resolution of County Assembly
By the Governor upon approval by the
County Assembly.
Independent Commission to verify and make
recommendations removal.
Use the County Service Committee
Impeachment Committee
Speaker to act as Interim Governor

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this implies, it also means that removal can only be by a special procedure and
supermajority decision in an impeachment procedure. This will require an absolute
majority of the members of the County Assembly to support the impeachment of the
Governor. The framework legislation will provide for the procedures of impeachment.
If a vacancy arises in the office of the County Governor, the members of the County
Executive Committee also cease to hold office
77
. Procedures should also provide for
additional circumstances when Executive Committee members should leave office.
Considerations here include whether the Governor has the power to remove them at
will, or whether the County Assembly can pass a vote of no confidence in the
Executive Committee. There also needs to be a legitimate process for removing
corrupt and incompetent Executive Committee officials (public referenda, formal
financial reviews, and so on) for good governance. The Constitution also specifically
states
78
that the legislation will provide for the procedures for the removal of and for
suspension of County Executive Committees.
5.4.5 Conclusions on the
County Executive
The Executive will be responsible
for the implementation of laws in
the County government, and will
have political responsibility and
accountability to the County
Assembly and citizens. We
recommend two ways of
decentralising Executive functions.
The first is by way the legislative
framework providing for
delegation of functions to
Executive Sub-Committee and the second by way of legal provision for transfer of
Executive power to other semi-government agencies (parastatals or Boards) through
corporatization, or to the private sector from beginning to end privatization.
The qualities of the County Executive will fall into two basic categories, capacity and
integrity. We recommend that legislation provided for the following minimum
educational and professional qualifications of the Governor, Deputy Governor and
Executive Committee and knowledge and experience of not less than five years in
relevant fields not limited to public administration, finance, management, law,
economics, human rights, social development or governance. In addition the
Governor and Deputy Governor should not be from the same gender, and no more
than two-thirds of the Executive Committee should be from one gender.
OUTSTANDING ISSUE:

While the direct election of the Governor
increases the degree of accountability to
voters, the legitimacy accorded an incumbent
Governor will be shaped by the Governors
apparent scope of victory. We recommend
that the Governor be elected either by a
majority of 50% plus 1 votes cast in the
County or by at least 30% votes cast in more
than half of the wards in the County.

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Integrity aspects will be addressed ethics that will standards of ethical conduct by
which public officials should operate. This law will address the following aspects:
conflicts of interest, gifts, financial disclosure, (gifts and financial disclosure are
subcategories of conflicts of interest), ethics oversight and vetting procedures).
There is thus a clear constitutional requirement for a balanced Executive committee
composed of representation from different regions, ethnic or religious groups from a
County. The Constitution also requires approval of County Executive appointments
by the County Assembly. We recommend two additional safeguards. The first
safeguard is for the legislative framework to specifically provide for a pluralistic
Executive Committee in terms of gender, minorities and region representation. The
second safeguard is the specific qualifications already provided for the Executive
Committee members to ensure that appointment is based on expertise rather than
corruption, favouritism, or nepotism.
The legal framework should focus on the role of the County Executive Committee as
policy makers and political representatives, rather than giving those powers and
responsibilities that will result in their micro-managing of the County and assuming
the management responsibilities of the County administration. We therefore
recommend that the roles of the Executive Committee will be as follows: political
responsibility, decision making, policy formulation and oversight, County
administration establishment and providing checks and balances by way of veto
powers of the over legislation passed by the County Assembly.
Finally, Legislation will elaborate on the procedure of removal of a County Governor
through an impeachment procedure. This will require an absolute majority of the
members of the County Assembly Procedures in the legislation will also provide for
additional circumstances when Executive Committee members should leave office.
5.5 ADMINISTRATIVE STRUCTURES FOR DEVOLVED GOVERNMENT
5.5.1 Historical Context
Local governments like all other political organizations are supported by political,
administrative and legal structures which must be in synch if they are to deliver on
their objectives. The interplay among these structures and especially the relative
balance between political and administrative responsibilities supported by an
appropriate legal regime are vital for the legitimacy and performance of local
governments. It is in this context that a historical review of local governments in
Kenya is provided in this section.
Local governments in Kenya date back to the middle of 1920s and owed their
existence and operations to ordinances and legal notices or the royal charter in the
case of Nairobi when it was elevated to a city in 1950. The colonial system of local
governance was replaced after independence with the enactment of the Local

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Government Act (Cap 265). The independence Constitution introduced a devolved
system of government with a Senate, regional governments and regional Assemblies
designed to protect the interests of the regions. The regional governments were to
have independent public services and taxation powers. The major functions
devolved to them were agriculture, public lands, education, housing, minerals and
local authorities. The system of government barely took off before it began to be
dismantled immediately after the Kenya became a Republic in December, 1964. This
came to a head when their major functions, primary education, health and roads
services were transferred to the central government in 1969 through the Local
Government (Transfer of Functions) Act, 1969
79
.
The administrative systems of the current local authorities (LAs) are not different
from those of the colonial Councils. The town clerks remain the chief Executive
officers of Councils, and usually supported by a treasurer, health officer and the town
engineer who are in charge of the major departments. At the moment these officials
are among the few council employees who are seconded by the Public Service
Commission to LAs and are therefore transferable to across councils.
County Councils are chaired by County Chairmen, while Town and Municipal
Councils are chaired by mayors. Typically, LAs departments are established on the
basis of the major functions of the councils. In practice urban municipalities have
more functions and therefore have more developed functional and administrative
structures. Most decisions of councils are made through Committees that are usually
structured to reflect the major service delivery functions.
5.5.2 Devolution of Government
5.5.2.1 Governance Structures
Unlike the current management of LAs the Constitution establishes a clear Executive
structure for County Governments (Article 179). This comprises the Governor,
Deputy Governor and an Executive of at most 10 members who together form the
County Executive committee. While the Governor and the Deputy Governor are
elected they, unlike the elected officials in LAs have Executive powers. The Governor
is the chief Executive of the County and is responsible for the appointment and
supervision of the members of the Executive committee. The County Executive is
responsible for implementation of national and County policy, supervision and
coordination of County administration and submission of legislation to County
Assembly. The County Executive is only accountable to the citizens of the County
through the County Assembly.
The County Executive has full control of the County public servants and as provided
by Article 235(1) of the Constitution can:
establish and abolish offices in County public service

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appoint persons to hold or act in those offices, and to confirm their
appointments
exercise disciplinary control over and removal of persons holding or acting in
those offices
These powers are to be exercised, however, within a framework of norms and
standards that are to be provided by an Act of Parliament. The Act should not
infringe on the County governments to constitutional right to control their public
service. This is important because these responsibilities are essentially the elements
that signify the autonomy of counties in decision making regarding delivery of
services related to the assigned functions.
5.5.2.2 Administrative Structures
Administrative decentralization refers to decentralization of the control of staff and
human resources in general to sub-national governments. In the context of
devolution this aspect of decentralization usually receives less attention than political
and fiscal decentralization. This is a misnomer given that human resource and
institutional development ultimately have the highest impact on the performance of
County governments. It is thus important that the design and structure of the County
administration is given the due attention it deserves. In reviewing the likely
organizational structure of counties it is important to distinguish between political
structure, the supporting administration and the linkage between the County
governments and the national government.
5.5.2.3 The County Executive
In designing County administration emphasis must be placed on effective
organizational structure with well-defined responsibilities assignments. It is thus
envisaged that the Governor and the Deputy Governor will supervise the Executive
committee members and that each member will be responsible for one or more
specific departments to be created in the counties. It is expected that the Governor
will appoint one of the members of the Executive as the head of administration/ chief
Executive officer. This will be the accounting officer of the County government and
other members will report to him/her. Units under each department in the County
are expected to be headed by senior professional with qualifications that in some
cases will be prescribed through national regulations or acts of Parliament. This is
important to ensure that service delivery is according to national standards.
As the County Assemblies will be small, the professional staff that will provide
services to them is expected to be equally small. It is therefore proposed that County
Assembly staff belong to the County public service. This applies to the question of
whether each County will have its own Public Service Commission. With a small staff
there would be no need for full time Commission. It is recommended that a
Commission made up of the Executive committee member and an equal number of

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members of the public appointed by professional bodies and associations and chaired
by the Deputy Governor be established. The Commission will operate on a part time
basis under an Act of Parliament provided for by Article 235 and with terms and
conditions determined by the Salaries and Remuneration Commission.
Whereas the counties will be in full control of the establishment and abolition of
County offices, it reasonable to expect that County departments would be established
on the basis of the functions of counties provided for by the Fourth Schedule of the
Constitution. It is not necessary that names of these departments correspond to those
of the national government, but the clustering of units within each department
should be such that the head of a department have the necessary competence in most
of the areas. This view was expressed in many of the County consultations. The
establishment of the departments and creation of other positions will of course
depend on the number of Executive positions in a County and the priorities of
counties. It would be advisable, however to standardize the establishment of
departments for the purpose of efficient intergovernmental cooperation.
5.5.2.4 Decentralized County Structures
In order for County governments to effectively deliver services to their residents,
County administration must be decentralized to the lowest level possible. This should
also apply to political units. The alignment of administrative and political units is to
facilitate the supervision of the work of administrative functionaries by the elected
representatives of the people.
The question the how many units of decentralization should be established below the
County. The County consultations recommended creation of up to six decentralized
units, ranging from the village, sub-location, location, ward, district and constituency.
There was an apparent consensus that districts/constituencies should be the sub-
County unit with the rest of the units below it. It was particularly argued that the
village and locations are the basic units for delivery of services because they are
closest to the people. It was also proposed that municipalities, County councils and
town councils be maintained as decentralized units to facilitate revenue collection
and for delivery of essential services to urban residents.
The decentralised units need not be aligned to the current administrative units. It is
proposed that counties decentralize to three units below the County, namely the sub-
County and the ward County government administrative and technical staff should be
posted only to these two levels outside the county headquarters. The village elders,
the assistant chiefs and the chiefs should support the County governments and their
offices at the lowest services delivery points. At each sub-County, it is proposed that
County Assembly members constitute themselves into a committee to supervise the
County Executive at that level. Assembly members play the same role at the ward
level under legislation to be passed by County Assemblies.

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Whether any County departments will be represented at each decentralized level will
depend on the nature of the services. Some services such as health and agriculture are
the most likely candidates for decentralization to the ward level. Others such as
planning, housing or energy policy may not be decentralized at all.
At each decentralized level of the County all staff will report to an administrative head
who in turn will report hierarchically to the County. Over the medium to long term
counties should develop professional cadre of staff. This should start with
appointment on merit from the beginning and provision of competitive terms and
conditions of service, including opportunities for skills development.
5.6 RESTRUCTURING OF THE PROVINCIAL ADMINISTRATION
5.6.1 National Administration
Under the devolved system of government, the national government will continue to
be represented at the County level. Several functions among them security, education,
national statistics, sports, disaster management, public works, road traffic,
registration of persons, environment, public investment, tourism development,
among others will continue to be the responsibility of the national government at that
level. Such national functions have been coordinated in the past by Provincial
Administration on behalf of the Central Government.
Provincial Administration is one of the departments in the Office of the President. Its
origins can be traced to the colonial era where it was used by the colonial authorities
as a formal mechanism to consolidate power. During this period, its main functions
were to collect taxes, maintenance of law and order and pacification of the natives in
the colony. It also provided judicial services and participated in legislative matters in
Local Authorities. The Department was not provided for by the constitution and has
been operating under a Presidential Executive order since the 1960s. The Department
is now staffed by about 12,344 officers stationed in all counties, districts, divisions,
locations and sub-locations of the Republic.
Articles 262 (the Sixth Schedule) section 17 of Constitution 2010 provides that:
within five years after the effective date, the national government shall
restructure the system of administration commonly known as the provincial
administration to accord with and respect the system of devolved government
established under this constitution.
It is therefore proposed that a process to restructure the current Provincial
Administration in accordance with this Article be initiated. This is necessary to
ensure that as it performs its functions it does not in any way infringe on the roles of
County governments. The Provincial Administration should work with County
governments in a cooperative manner for effective delivery of services to Kenyans. In
the new constitutional dispensation, the national administration will have two roles
in the County, one of direct implementation of the functions allocated to the national

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government by the constitution and another of exercising oversight on the County
government as it implements national policies and legislation
The restructured Provincial Administration will facilitate the Presidency, as the head
of the National Executive, to fulfil, amongst other things, the Presidents
responsibilities as provided by Article 131(2). These responsibilities are to:
1. respect, uphold and safeguard the Constitution;
2. safeguard the sovereignty of the Republic;
3. promote and enhance the unity of the nation;
4. promote respect for the diversity of the people and communities of Kenya;
and,
5. ensure the protection of human rights and fundamental freedoms and the rule
of law.
To restructure Provincial Administration, the President can apply Article 132 (3) (b)
and Article 132 (4) (a) which empowers the him to direct and co-ordinate the
functions of ministries and government departments; and to establish offices,
respectively. This would be in line with the requirement that all state organs should
where necessary provide services in all parts of the country (Article 6(3). The
restructuring can also be done within the spirit of Article 189 (1) which requires that
either level of government shall:
1. perform its functions, and exercise its powers
2. assist, support and consult the other level of government
3. liaise with government at the other level for the purpose of exchanging
information, co-coordinating policies and administration and enhancing
capacity
The Provincial Administration with its expertise and other resources is able to
support the County governments. It could also provide a vital link between the
national government and County governments by disseminating information and
building capacity for policy and programme implementation. Both levels of
government will require administrative support, especially during the transition
period.
5.6.2 Functions the Proposed National Administration
It is proposed that Provincial Administration be restructured and named the national
administration. In the context of the Constitution the national administration will
perform the following functions:
1. National cohesion and integration:
a. Promotion of nationhood and statehood;
b. Conflict management and Peace building;
c. Promotion of ethics and integrity; and,
d. Promotion of national government image.

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2. Disaster management and mitigation.
3. Arbitration of disputes.
4. Civil registration:
a. Births and deaths (occurring at home);
b. Identification of persons for initial national registration.
5. Liaison between national government and County government:
a. Sharing of information;
b. Co-ordination and dissemination of national government policies and
administration;
c. Co-ordination and harmonization of national development programmes;
6. Co-ordination of national security;
7. Mobilization of citizens for national events;
8. Co-ordination of official state functions and provision of government
reception services; and
9. Printing and publishing of Government documents
These functions are not exhaustive and may change depending on the final outcome
of the restructuring. In the meantime options and time frame for restructuring
should be given priority.
Figure 5.3: Proposed Levels of the National Administration

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5.6.3 Proposed Structure of the National Administration
In terms of administration at the county level it is proposed that there be distinct
administrative structures for the two governments that is the national government
and the county governments in accordance with Article 6 of the constitution. Each
administrative structure would primarily support the implementation of the
functions assigned to the respective governments at the county level. The national
government administrative structure would also facilitate the oversight role of the
national government in the implementation of national policies and legislation.
The county administration would be structured along the structure of the county
executive. The national administration on the other hand will comprise of the
restructured provincial administration. It is proposed that the restructured
provincial administration be renamed national administration and that it be at 3
levels in order to accord with the county government as at three levels as shown in
Figure 5.3.
Ministries that have functions that need to be performed at county level will devolve
to that level. The County administrator will oversee the implementation of national
policies and legislation at the county level assisted by the sub county and ward
administrators. Several options have been proposed on the structure of the proposed
national administration.
i. Option 1: is for the national administration to exist side by side with the
county administration. This option proposes that national administration be
represented at three levels by a county administrator at the county level, a
district administrator at the sub-county and chief at the ward level. Under this
option the county government would be able to assign some of its
responsibilities under county government functions contemplated in function
14 of the county government functions. This would make it unnecessary for
the county government to establish an administration at that level and also
ensure there are no parallel systems at the point of contact with Kenyans.
Under this option the chief would report to both governments although being a
national government officer
ii. Option 2: The structure remains the same as in option 1 but the chief is part
of the county administration and therefore the national government does not
have representation at this level but its functions are carried out through
assignment to the county administration.
iii. Option 3: national government is only represented in counties by technical
officers and the heads of the technical units working and coordinating with
their equivalents in the county departments. This option does not contemplate
an administration for the coordination of national government functions.
Consultations are going on in terms of these proposals, taking cognisance that the
CoK 2010 in Schedule 6, Part 4, Article 17 provides that the national administration
shall, within five years, restructure the system of administration commonly known as

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the provincial administration to accord with and respect the system of devolved
government.
5.6.4 Security Management in the Counties
Although the constitution allocates the function of security management to the
National Government, it is important to provide for a forum where the County
Government can discuss their security challenges and present them to the relevant
National security organs for appropriate
action and feedback.
The National Police Service Bill provides
for a County Policing Authority which
will be chaired by the Governor with the
mandate to identify security priorities
and challenges within the County and
advise the National Security Organs at
the County for appropriate action.
Because national security is broader than
policing, it is important for national
security architecture to be developed within the framework of the National Security
Council to provide a platform for the County Government to discuss their security
challenges with the National Security Organs in the County. This platform should be
organized in the spirit of community partnership with police/security organs which
are critical in effective security management.
It is therefore recommended that the National Government initiates consultations
with key national security actors so as to develop a national security bill and
architecture that provides for a partnership between the National Government and
County Government in the management of security in the county.
The security architecture envisaged in the County should provide for a policy organ
chaired by the Governor and an operational security organ to take operational
decisions and action.
5.6.5 Transition Issues
The importance of administrative decentralization is that it would:
lead to alignment of administrative structure to assigned functions
ensure accountability of staff to County governments, and by extension to the
local people
promote development of capacity relevant to local needs
encourage deeper civil service reforms
OUTSTANDING ISSUES

Should we have another level of
government below the location
sub-location / village level?
Exact role of national / county
governments in security matters at
the county level

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On taking office after the first election under the new Constitution, the Governor and
the Deputy Governor will be the only executives and indeed employees of any County
government. They will thereafter nominate the other executives, who after
confirmation by the County Assembly will assume office. It is only then that that task
of establishing the County public service will begin.
In the meantime delivery of services to the public has to continue, except now the
services will be provided by employees of ministries and by those of councils some of
which may not be in existence. This state of affairs elicits many questions, for
example.
Who will be responsible for the public servants performing County during the
transition period?
In particular, who will the workers under the LAs report to in the absence of
the Councils?
What happens to excess staff at the National Government level as functions
begin to be devolved to counties?
Several options can be contemplated. In the case of national government officers
working within counties they may continue performing their functions and report as
usual until the County government is ready to assume their assigned functions.
Under the circumstances the line of reporting is clear and services delivery will not be
interrupted.
The other option is for those officials performing national functions according to the
Constitution to report to the national government; while those performing County
functions report to the Governor, but continue to be paid by national government.
This would give the county executive committees almost immediate control of some
affairs of their counties.
The case of officials of local authorities is more complicated since some of the
councils will have ceased to exist. Several scenarios could be contemplated. One is the
appointment of an independent body by the national government to make
recommendation on how the case of the officers of local authorities will be dealt with.
Salaries and other emoluments and benefits would continue to be met by resources
allocated by the government through the ministry responsible for County. This would
avoid a situation where officers remain in office without political supervision. The
drawback with this option is that it may not be politically acceptable.
The other alternative is for the LA staff to remain in place and the chief officers to
report directly to the County executive. This would require that the personnel
emoluments for this staff are met by the national government over the transition
period. To address these transitional issues the following is recommended:

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The Ministry of State for Public Service should initiate a process to address to
anticipated restructuring of public service to reflect the needs of the national
government after the devolution of functions. The ministry should also
undertake a projection of human resource requirements for counties that
would be necessary to deliver the devolved functions. These activities should
follow the costing of functions by ministries and departments and a staffing
audit by MoSPS of all public service staff. Staff audit should lead to staff
retraining and capacity building and initiation of a program that would assist
in building capacity of County government staff.
A similar process should be initiated by the Office of the Deputy Prime
Minister and Ministry of Local Government. The objective here would be to
undertake a thorough audit of staff of each LA to ascertain their numbers and
skills. This will assist in future placements and payroll management, and
capacity development.
The government should set up a body whose primary objective will be to
oversee the transition process. Some of the functions of this body would be to
undertake an audit of assets and liabilities of local authorities and to ensure
appropriates registers are opened for all identified assets. It would also ensure
that all asset registers of ministries are kept properly and are up to date, at the
initial stages work with County governments in the transfer of assets to
counties and throughout the transition period assist County governments
remove any roadblocks they may face.
The government should also create a vehicle into which the liabilities of LAs
will be transferred.
5.7 CONCLUSIONS
It has been shown that county governments unlike the current local governments
have independent powers to decide on their administrative structures, including
exclusive control of its public service for delivery of the assigned functions. The
structure is expected to be designed around functions that the counties identify as
important for their development. The structure is also expected to be cascaded to
lower administrative units, primarily the sub-county, the ward and the village where
necessary.
It is proposed that during the transition, before county governments appoint their
own staff national staff is retained in counties. This is necessary to ensure that service
delivery is not interrupted. Thereafter county governments through their Public
Service Commissions will appoint their own staff under the norms and standards
provided by Article.
In the case of the Provincial administration and the security arrangements in
counties, it is proposed that:

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A taskforce is established to restructure the system commonly known as
Provincial Administration.
An evaluation exercise is undertaken to establish the optimal staff
establishment after the proposed restructuring.
All the relevant legislation which impact on Provincial Administration are
reviewed and harmonized.
The Security Bills currently under preparation should incorporate the roles of
the proposed restructured Provincial Administration and County
governments.

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6 FUNCTIONAL ASSIGNMENT FOR EFFECTIVE PUBLIC
SERVICE DELIVERY IN KENYA
6.1 INTRODUCTION
Realization of developmental devolved government in a manner that supports the
overall objectives of the Constitution of Kenya, 2010 will require efforts aimed at
building new and strengthening existing institutions. The devolution effort will
require a clear and transparent effort to assign functions, competencies and
responsibilities to multiple tiers of government and administration, non-state actors
and private companies to fulfil them in a manner that delivers the requisite public
services. These multiple sets of acts must be configured to work in a coherent,
coordinated and cooperative manner through clear definition and appropriate
assignation of functions. This is key to effective and efficient utilization of resources
for public service delivery.
The way in which functions, competencies/responsibilities
80

81

82
are structured and
organised affects not only what lower levels of government do, but also how well each
level of government and the public sector as a whole actually responds to the needs of
the citizenry. One of the key challenges in respect of public service delivery under the
past constitutional dispensation was the lack of clarity in assigning of responsibility
as well as lack of awareness on the part of citizens as to exactly which level of
government was responsible for a service. A key unfortunate consequence of this was
discordant policy frameworks, laws that said different things about the same issue,
and multiple institutions competing for limited financial, human and other resources
to deliver the same services. This resulted in lack of adequate or non-delivery of
public services. Those that were delivered were achieved at high costs to the citizens.
Key issues in respect of service delivery based on the functional assignment are as
follows:
1. Achieve clarity in the functional assignment through unbundling them and
assigning competencies between the national and county governments;
2. Determine the service level gaps in respect of each competency;
3. Determine the expected performance level;
4. Assign funds to levels of government according to their service delivery
mandates;
5. Identify the capacity constraints;
6. Develop a short, medium to long term capacity building programme
7. Review the organisation of national government (ministries/departments) to
reflect the optimal assignment of functions as anticipated under the CoK 2010
The issues involved in closing the service delivery gap revolve around understanding
the existing service level gaps at the national, county and between county levels.

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Based on nationally accepted standards, a county level of service gap analysis is
required. The competencies to close these gaps must have assigned funding, which
must assure optimal vertical and horizontal balancing to avoid political and
macroeconomic instability.
6.2 PRINCIPLES OF FUNCTIONAL AND COMPETENCY ASSIGNMENT
6.2.1 General Principles for Functional Distribution
It is important to note that experience elsewhere suggests that functional distribution
is achieved through provisions of a constitution and clarified through laws and
regulations. Where this is not neatly done, the option is for courts to make rulings on
matters of functional and competency distribution. This route is expensive and
messy to the extent that courts are not always focused on broader policy matters, but
in sorting out the issue under litigation. Decisions by courts may not always yield
optimal outcomes. It is imperative therefore that, to the extent that is feasible, for
matters of functional and competency assignment to be sorted out on the basis of a
constitution, but also through clear policy, laws and regulations which are more
amenable to dealing with evolving circumstances.
Over the years, federal and or devolved systems have developed a number of general
principles which guide the assignment of functions to different levels of government.
Some systems use one or two of these principles in their assignment of functions. But
many systems draw from and combine all these principles in their approach to the
assignment of functions. There is no rigid rule regarding these principles and each
country may have its own reasons for settling for a particular approach. Again, many
leave the door open and over time may draw from these principles in re-adjusting the
functions. Some of the principles may be drawn from whenever negotiations are held
for transfer of functions.
6.2.1.1 Principle of Subsidiarity
The first principle guiding functional assignment is the subsidiarity principle.
Subsidiarity demands that functions be assigned to that level of government that
would best perform them. Further, that if a function is best performed at the lowest
level of government, then, it should be assigned to that level of government. Only
those functions which cannot be effectively performed by the lowest level of
government should be left to a higher level of government. It is on the basis of this
subsidiarity principle that it is argued that policy formulation and national standards
setting functions are best performed by the national level of government while the
implementation of the policies and the standards is best done by the lower levels of
government. This principle should become useful when levels of government are
making decisions regarding the functions they may wish to transfer to another level
of government.

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In the Kenyan case this principle is implied in Articles 174 200 of the Constitution
which pertain to the creation of devolved governments and the objects of devolution.
Specifically, Article 174 includes the objective of giving the power of self-government
to the people and enhancing their participation in making decisions (clause c) and
recognizing the right of communities to manage their own affairs (clause d).
Furthermore, Article 176(b) states that county governments should decentralize their
functions and service delivery to the extent that it is efficient and practicable.
6.2.1.2 Transferability of Functions
The second principle guiding functional distribution is the recognition of the concept
of transferability of functions from one level of government to another. It is
recognized that there is no permanency in the assignment of functions. Because of
this, it is possible to have one level of government transfer some of or aspects of some
of its functions to another level of government. Such transfer is not done by the
constitution but by the agreement of the different levels of government. The transfer
could be by agreement or by national legislation. Sometimes the legislation
transferring the functions may be preceded by an agreement. Article 187(1) of the
constitution recognizes this principle and provides for transfer of functions. It notes
that a function or power of government of one level of government may be
transferred to another level of government by agreement between the two levels of
government. Such transfer would be necessary first, if the function or power would be
more effectively performed or exercised by the level to which it is being transferred;
and second, if the transfer of the function or power is not prohibited by the legislation
under which it is assigned by the fourth schedule.
However, because the transfer is not by the constitution, the function constitutionally
remains the function of the level of government to which the constitution assigns it.
This means that the transferring agreement can be later cancelled or legislation
amended or repealed and the power reverted to the level of government to which the
function or power is constitutionally assigned. In this respect, article 187(2)(b) points
out that if a function or power is transferred from one level of government to another
level, constitutional responsibility for the performance of the function or exercise of
the power remains with the level of government to which the function is assigned by
the constitution in general, and the fourth schedule in particular.
A most important element of transferability of functions is the need to ensure that
functions are not transferred without resources. Since resources follow
responsibilities, any transfer of responsibilities must be accompanied by the
necessary resources to be used to perform the functions. In this respect article
187(2)(a) recognizes this need. It requires that if a function or power is transferred,
from one level of government to another level of government, arrangements must be
made to ensure that the resources necessary for the performance of the function or

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exercise of the power are transferred to the level of government to which the function
is being transferred. This is a very important factor to bear in mind to avoid the
possibility of one level of government undermining the ability of the other to operate
by simply transferring to it functions without the accompanying resources. The
importance of this must be underscored given our countries experience with the
independence constitution which was rendered dysfunctional through this kind of
mechanisms.
6.2.1.3 Policy Formulation, Regulation, Standard vis-a-vis Implementation
The third principle draws a distinction between policy and standardization functions
on the one hand, and implementation functions on the other. In an approach that
follows this principle, the national level of government is assigned and performs the
functions of formulating policy and setting national standards; while the sub-national
level and any other lower levels of government are assigned and perform mainly
implementation functions. In such systems, more legislation is done at and by the
national level of government while the sub-national level deals with the
implementation of the legislations. Ordinarily, the legislations are done in very broad
terms leaving room for each of the sub-national constituent units to be unique and
different when filling in details and elaborating the legislations.
Germany is one of the countries which follow this approach. An important feature of
a country that follows this approach is a bicameral system of the national legislature.
The second chamber of parliament is normally representative of the constituent units
to provide them with a forum for participation in the legislative process at the
national level. This gives them an opportunity to contribute to the formulation,
debate and enactment of legislation that takes in to account the concerns and
difficulties of implementation that are experienced by the constituent units.
An analysis of the fourth schedule lists of functions of both the national and county
levels of government indicates that to a large extent, this principle has been followed
in the assignment of functions. For instance, in the areas of agriculture, housing,
energy, veterinary services, health, education, protection of the environment and
natural resources, land planning, consumer protection, the national economy and
planning, labour, monetary and currency matters as well as language, the national
level of government has been assigned the function of policy formulation and setting
of national standards. Although in the area of health the national government has
been assigned the function of running national referral health facilities, the main
function in the health sector is to formulate health policy and to set the health
standards. Similarly, even though in the education sector the national government
has been assigned the function of primary and secondary schools as well as the
colleges and universities, its main role in education is the formulation of education

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policy, the setting of education standards, curricula, examinations and the granting of
university charters.
On the other hand the analysis of the lists shows that the county level of government
has been assigned the function of implementation of the policies and standards
formulated and set by the national level of government. In agriculture for example,
the county governments are supposed to engage in the actual agricultural
development in the areas of crop and animal husbandry, livestock, plant and animal
disease control and fisheries. In the health sector the county governments have been
assigned the bulk of the health responsibilities. They will be responsible for the
county health facilities and pharmacies; ambulance services; promotion of primary
health care; licensing and control of undertakings that sell food to the public;
veterinary services; cemeteries, funeral parlours and crematoria; and refuse removal,
refuse dumps and solid waste disposal. Largely therefore, this particular principle can
be said to have played a major role in the assignment of functions in the new
constitution of Kenya.
6.2.1.4 Foreign Affairs, Defence and Macroeconomic Policy
The fourth principle guiding functional assignment draws a distinction between
functions which deal with foreign affairs, defence, and macro-economic policy and
management on the one hand; and social functions on the other. Whereas the
national level of government normally deals with foreign affairs, defence, and macro-
economic policy as well as currency functions; the sub-national levels of government
are normally assigned what are referred to as social functions. Social functions
include health care, education, housing, agriculture and security. They are
sometimes referred to as the welfare functions. And it is argued that these welfare
functions being those that touch on the day to day lives of the people are better
performed at the local level where the people live and operate their day to day affairs
of survival and self-preservation. The national level of government which is normally
far removed from the people is better placed to perform those functions that may
appear to be a bit removed from the people. These are the policy formulation and
regulation functions as well as the national standards setting functions.
An analysis of the lists of functions set out in the fourth schedule indicates that to a
certain extent this principle was taken in to account in the assignment of functions.
The first part of the list assigns to the national level of government the functions of
foreign affairs, foreign policy and international trade; immigration and citizenship;
national defence and the use of the national defence services; national economic
policy and planning; and monetary policy, currency, and banking. On the other hand
6.2.1.5 Categories of Functions
The fifth principle of functional assignment recognizes three categories of functions.
These are exclusive functions which can be performed by only one level of

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government; concurrent functions which can be performed by two or more levels of
government; and residual functions which reside with the original level of
government which existed before the creation of the other levels of government.
The concept of exclusive functions or powers involves the assignment by the
constitution of certain powers and functions to a level of government exclusively. The
national level of government may be assigned certain powers in which the sub-
national levels cannot interfere or share. At the same time the sub-national level may
also have its exclusive area in which the national level cannot interfere or share. In
systems which overemphasize exclusive functions, the effect is to reinforce the idea of
autonomy at each level of government. This also has the effect of making it clear
which government is accountable for policy in that functional area. In practice,
however, even where most powers have been assigned exclusively to one level of
government or the other, experience has shown that overlaps of functional
jurisdiction are unavoidable because it is virtually impossible to define watertight
compartments of exclusive jurisdiction.
The concept of concurrent functions involves the idea of joint tasks and or overlaps in
terms of functional jurisdiction. There may be many cases in which a certain aspect of
an issue is assigned to the national level of government while another aspect of the
same issue is assigned to the lower level of government. For instance certain aspects
of the education function may fall under one level and others fall under the
jurisdiction of another level. A
good constitutional design in
this case must clearly specify
which level of government will
prevail in the event of conflict
between the two levels of
government. For example, in
the event that the two levels
legislate on the same matter
but in different ways so that
there are two laws governing
the same matter but which are
in conflict or contradiction with each other, it must be clear which one of the two laws
will take precedence over the other.
The concept of concurrent functions is necessitated by the inevitability of functional
overlaps and the reality of shared nature of governance which requires that in certain
matters decisions ought to be shared and therefore that there must be some areas of
shared jurisdiction calling for collaboration. Scholars have associated concurrent
functions with a number of advantages. First, concurrency provides a measure of
flexibility in the assignment of powers and functions, enabling the national
CATEGORIES OF FUNCTIONS

National government functions should not
undermine County governments functions
The Chief Administrator of the County shall be
the Secretary to the County Executive
A sub-county administrator to be in charge of
administration at the sub-county level and a
ward administrator at the ward level

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government to postpone the exercise of potential authority in a particular field until it
has become a matter of national importance. In the meantime the sub-national levels
of government are left with their own initiatives. Secondly, national government may
use concurrent
jurisdiction to set
national standards for
the whole country
while giving the
constituent unit
governments room to
legislate the details and
to deliver services in a
manner more sensitive
to local circumstances.
Thirdly, concurrency
also avoids the
necessity or
enumerating
complicated minute
subdivisions of
individual functions to
be assigned exclusively
to one level of
government or
another
83
.
The concept of residual
functions or powers
refers to those
functions that are not
expressly assigned by the constitution to either level of government. It is normally
necessary to know in which level of government such powers reside. In this case, it is
important to note that the greater the enumeration and assignment of functions and
powers by the express provisions of the Constitution the less significant the issue of
residual powers. Therefore, to avoid the conflicts that quite often arise when a
determination has to be made about residual powers, a good constitutional design
should seek to expressly enumerate and assign most of the powers in and by the
constitution.
In most cases the level of government in which residual powers reside is determined
by the manner in which the devolution system in a given country emerged. In
countries whose devolution system emerged in an integrative manner, by various
TRANSFER OF FUNCTIONS

Defined recruitment and vetting policy in place
Functions for county governments be transferred after
election
Legislation should provide framework for transfer of
functions
No transfer of services without resources
Mechanisms be created through legislation for the transfer
of functions to counties with capacity e.g. education
COUNTY VISIT SUBMISSIONS ON FACTORS TO
CONSIDER BEFORE TRANSFERRING A FUNCTION TO A
COUNTY

A headquarter in place with adequate infrastructure
(buildings)
Adequate human resources
Governing policies
An oversight committee
A strategic plan with within the goals of Vision 2030
Adequate infrastructure,
Financial resources,
Administrative structure
Functions to be retained by national government only
when the county government has failed in its delivery ,
there is uncontrollable conflict & state of emergency and
there is misappropriation & mismanagement of funds

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independent units coming together to form a single country the system is referred to
as integrative federalism or devolution. In such systems, it is the constituent units
which agree to release certain powers to the national or union government they
would have formed. The constitution in this case concentrates on specifying which
functions are assigned to the national or union government. In this case the functions
which the constitution has not expressly assigned to the national level of government
are residual powers of the constituent units. On the other hand, in countries where
the system emerged in a devolutionary manner, by unitary country dividing itself into
various sub-national units and the national government releasing certain powers to
the sub-national level of government, the system is referred to as devolutionary
federalism or devolution. In such system the constitution concentrates more on
spelling out functions of the constituent units. Therefore, any powers not expressly
assigned by the constitution to the sub-national level of government are residual
powers of the national level of government.
In the Kenyan case, it will be important to create a legal framework for further and
continuously clarifying the assignment of exclusive, concurrent and residual
functions in the cooperative system of government adopted.
6.2.2 Principles and Criteria for Unbundling Functions and Competencies
It has been argued that allocation of public functions and services is specified by the
assignment of expenditures and responsibilities for service delivery and is not just a
simple legal action of allocating public services from one level or unit of government
to another
84
. They say that allocation of public functions can be redesigned in many
ways, and all require several legal, fiscal, and institutional criteria, which if they are
not met, then public service delivery will be inefficient. A summary of global
experience points to the following principles that would guide effective formulation
and assignment of functions, namely
85
:
recognizing when functions need to be unbundled;
avoiding unwanted concurrency or giving parts of functions that are not suited
for the government level in question;
to the extent possible, keeping a function whole, while retaining exceptions
that help to retain a holistic formulation of functions. This is important from
two perspectives. First, it makes government more accountable and efficient
and second it makes lists of functions more readable;
avoiding the framing of functions as projects functions are the underlying
and stable mandates that give rise to projects/programs that change
considerably over time;
avoiding limiting jurisdiction by value of projects/activities;
procurement should be wrapped with its substantive function;
management functions should be implicit or mentioned as a global reference;

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avoid the use of the term scale or even level as explanatory terms as they
lead to multiple interpretations or simply do not add any information;
functions should not rigidly flow from pre-existing organizational mandates to
avoid locking in pre-existing inefficiencies, overlapping or questionable
roles/functions and bloated structures.
Over the years devolved systems have developed a number of general principles
which guide the assignment of functions to different levels of government. Some
systems use one or two of these principles in their assignment of functions. But many
systems draw from and combine all these principles in their approach to the
assignment of functions. There is no rigid rule regarding these principles and each
country may have its own reasons for settling for a particular approach. Again, many
leave the door open and over time may draw from these principles in re-adjusting the
functions. Some of the principles may be drawn from whenever negotiations are held
for transfer of functions.
In the Kenyan case, Article 186 and Schedule 4 provide for assignment of functions
and powers between the national and county governments. However, this distinction
is not always clear and has the potential for tying up governments in disputes that
would detract from actual delivery of services or could lead to wasteful expenditures.
It will therefore be important to ensure that there is clarity in terms of which
functions are exclusive, concurrent and or residual in the Kenyan case. Annex 4
provides a provisional assessment of the assignment of these functions between the
national and county governments.
It is also important to note that some functions are part and parcel of the assignation
process, but may be considered residual functions. For instance, the issue of
procurement or supply chain management may be considered a residual function,
and therefore a function of the national government. But it is fully expected that
county governments will have to procure in order to deliver their services. The key
here lies in unbundling of the procurement or supply chain management function so
that the national government is responsible for setting of norms and standards, while
the actual procurement is done by counties. The import of this observation is not on
the specifics, but rather that, beyond the provisions of the CoK 2010, there will have
to be a negotiated process leading to the actual assignment of both devolved and
delegated functions to both levels of government and their agents.
6.3 FUNCTIONAL ASSIGNMENT AND INTERNATIONAL EXPERIENCE
6.3.1 Lessons from Theory and Practice
Function assignment (also referred to as expenditure assignment) is the first step in
designing fiscal decentralization arrangements for any country. The golden rule of
fiscal decentralization is that funding should follow function (Bahl 1999) and so the
first emphasis is on identifying which functions are to be devolved, and what they

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cost. Fiscal decentralization literature includes principles that should inform
decisions about what functions should be devolved to each level, but is it less
concerned with theorizing how those decisions should be made.
In counties with a long history of devolved government, the distribution of functions
will have developed over a long time, with the result that adjustments occur mainly at
the margins. In this environment issues of function assignment usually arise in the
context of considering whether responsibility for a specific function (like quarantine,
or hospital services) should be shifted from one level to another. The concept of
function assignment as a formal process of devolution has developed fairly recently,
as a number of countries (beginning with South Africa and Indonesia) have
undertaken big bang style decentralization, where a highly centralized government
system is decentralized across the board. This approach involves many sectors being
devolved at the same time, and is considerably more complex. Recognising this
complexity, a number of these countries have adopted formal processes for managing
the process of defining functions and implementing the process of devolving them.
6.3.2 Consequences of Ineffective Functional and Competency
Assignment
In a devolved system of government functions are allocated between the various
levels. These functions are classified as being exclusive, concurrent/shared or
residual. The clear distribution of functional areas is important for effective service
delivery
86
. This is primarily to limit conflicts and the attendant litigation as well as
avoid waste amongst others.
Table 6.1: Dealing with lack of clarity in functional assignment between
different levels of government
Challenges arising from lack of clarity in functional
assignment
Strategies to address them
Duplication of services
Ineffective services
No service delivery
Unfunded services
Increased contestation
Wastage in funds expenditures
Judicial interpretation
Statutory definitions
Administrative definitions
Negotiated definitions
National definitions
Local government definitions
Source: Authors construct from various sources
Where functional assignment is not clear, effective public service delivery is affected
through duplication of services, ineffective services, lack of service delivery, unfunded
services, lack of accountability, and increased contestation over who is responsible for
what. Table 6.1 summarizes the challenges arising out of inadequate functional
assignment and the strategies that countries have adopted to deal with the same.

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6.4 FUNCTIONAL AND COMPETENCY ASSIGNMENT IN KENYA
6.4.1 The Constitutional Provisions
The preamble of the CoK 2010 as a basis for enacting it, says that the people of
Kenya, would be respectful of the environment and demand a government based on
certain essential values. This declaration is crucial to determining how services will
be delivered and which options should be chosen in doing so. Table 6.2 summarizes
the key provisions of the CoK 2010 in respect of delivery and access to services.
Table 6.2: Constitution of Kenya, 2010 Provisions relevant to Functional
Assignment and Public Service Delivery
ARTICLE THEME IMPLICATIONS FOR PUBLIC SERVICE DELIVERY
Preamble Basis for public service delivery Basis and goals for public service delivery
1 (4) (a)
and (b)
Sovereignty of the people to be exercised at
national and county levels
Main platforms for public service delivery. They must have clear
functions for service delivery
6 (3) Devolution and access to national services Duty on all national state organs to ensure access to its services
nationwide based on appropriateness and nature of service
10 National values to be reflected in all
activities of government
Basis and goals for public service delivery
11 (2) (c) Intellectual property rights Protection of indigenous property rights whilst delivering public
services
12 (1) Entitlements of citizens Right of citizens to public services subject to clearly defined
constitutional provisions
Need to be clear about what the limits of the constitution are in
respect of public services
19 Rights and fundamental freedoms of every
citizen of the Republic of Kenya
Sets the basis for social, economic and cultural rights
Need to understand what these means for physical and
economic access conditions to public services
20; 21, 22,
23, 24, 25
Application, implementation, enforcement,
authority of courts and limitations of Bill of
Rights to all state organs and all persons,
public or private and also the basis for
interpretation of Bill of Rights
Circumscribes the level of access and acceptable standards and
norms for public service delivery
26 Right to life Could be interpreted to mean that any form of public service
delivery that threatens the right to life is unconstitutional
27 Equality and freedom from discrimination Public services shall be delivered in an equitable and non-
discriminatory manner
28 Human dignity Public services shall be delivered in a manner that recognises
and protects human dignity
29 (f) Freedom and security of the person Public services should ensure people are not subjected to cruel,
inhuman or degrading conditions
30 (2)
41
Slavery, servitude and forced labour as well
as labour relations
Public services should not be delivered using forced labour
31 Privacy of every person In delivering public services, information collected from citizens
must be protected and not divulged in an unauthorised manner
32 (3) Freedom of conscience, religion, belief and
opinion
No one may be denied access to public services on account of
their beliefs or religion
33 (1) (a)
and 35
Freedom of expression and access to
information
Citizens have a right to access information used to deliver public
services
42 Clean and healthy environment Delivery of public services shall be done in manner that ensures
a clean and healthy environment both during production and
provision
43 Rights to highest attainable standard of
health care, health care services and
reproductive health care; adequate housing;
reasonable standards of sanitation; freedom
from hunger; clean and safe water; social
security; education; emergency medical
treatment
Creates an obligation to the state to deliver a minimum
acceptable bundle of services to the citizens
Need to define what this minimum bundle of services is and the
acceptable norms and standards for delivery of these services
Need to assign the required level of government; organisations,
funding to deliver
46 Obligations on providers of goods and
services to consumers
Public services must be delivered that are of reasonable quality,
including access to information to facilitate effective utilisation
by consumers of those services; protection of their health and

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safety and to compensation for loss and injury
47 and 50 Fair administrative action and Fair hearing Sets the ground rules for processes, procedures and
administrative interventions which should promote speedy
access, be efficient and effective and provide for rights of
review to decisions in a fair manner
53, 54, 55,
56, and 57
Specific application of the Bill of Rights to
children, persons with disabilities, youth,
minorities, marginalised groups and older
members of society
Lays the basis for affirmative action, where required, in delivery
of public services for these groups of the citizenry
60 and 66 Principles of land policy as well as the
regulation of land use and property
Public services in most cases have to be landed and the
principles set out under this article define how such land would
be accessed and used

61 Establishment and functions and National
Land Commission
A key institution in defining public service delivery frameworks
land use policy; registration of titles; taxation on land; oversight
of land use planning
69, 70, 71,
72
Kenyas environment and natural resources
and their utilisation
Public services in most cases have to be landed and the
principles set out under this article define how such land would
be accessed and used including measures for protecting the
environment and natural resources including requirements for
environmental impact assessments and environmentally
sensitive processes, procedures and technologies
73 to 80 Leadership and integrity of public servants Framework of personal and public behaviour and action by
public servants in delivering public services bring honour to
the nation; promote confidence to the public service
81 to 89 Electoral systems and processes including
delimitation of electoral areas
Where public services are to be delivered through elected
institutions, the framework for these processes is established
here
94 Role of Parliament Legislative authority to alter boundaries, functions as well as
define the nature and scope of policies and laws
95 Role of National Assembly Enact laws, determine allocation of national revenues,
appropriate funds for expenditure by state organs, exercise
oversight over state organs that are key to public service
delivery
96 Role of the Senate Represent counties, protect interests of cuties and their
governments, deal with matters concerning counties, determine
allocation of national revenue amongst counties (217), oversight
over national revenue allocated to county governments,
oversight of state officers in accord to Article 145
93 to 128 The Legislature its membership, structure
and operations
Size, cost and effectiveness of the legislature with implications
on the amount of national revenue going to county
governments
129 to 158 The Executive its membership, structure
and operations
Size, cost and effectiveness of the executive with implications
governments
159 to 173 The Judiciary its membership, structure
and operations
Size, cost and effectiveness of the legislature with implications
governments
174 to 200 General purpose and structure of devolved
government
Ensure equity in sharing of national resources, promote national
unity, give voice to local communities; promote accountability
and citizen participation in governance of the nation; give
powers of self-governance to communities; and ensure
proximate, easily accessible service delivery that will facilitate
socio-economic development in a manner that protects the
rights of the minority and marginalised
174 (h) Facilitate decentralisation of national
government functions and services from
Nairobi
Implies that County Governments will be the fulcrums around
which public services can be decentralised. Central Government
will move all services that must be decentralised through County
Governments

175 (b) Principles of funding public service delivery County governments shall have reliable sources of revenue to
enable them govern and deliver services effectively
What happens, if a County Government does not have adequate
revenues? Link this with nationally defined standards and
norms versus existing county government service levels?
What does this mean for asymmetrical devolution anticipated
under the Sixth Schedule, Article 15?
176 County governments Means that there shall be a county government responsible for
service delivery in each county and that each county shall

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decentralise its mandated functions and competencies to the
extent that it is efficient and practicable see also effect of the
Sixth Schedule, Article 15
Size, cost and effectiveness of the county governments with
implications on the amount of revenue available for actual public
service delivery
What happens when a service requires provision over an area
larger than a county?
183 County executive committees public service
delivery responsibilities
County executive committee responsible for operationalising
county and national legislation and report on the same to the
county assembly

185 Legislative authority of county assemblies Approval of plans and policies responsible for managing and
exploiting county resources as well as development and
management of its infrastructure and institutions
Which are county level institutions?
186 Assignment of functions between national
and county levels of government
Key to assigning of competencies between the national and
county levels of government as well as forming the basis for
effective resource sharing as well as performance management
Identify and clearly define which functions are exclusive;
concurrent/shared and which are residual?
187 Transfer of functions between levels of
government
Provides the framework for delegation of functions between the
two levels of government, either way by mutual agreement,
including the requisite transfer of resources
188 Boundaries of counties Demarcation of boundaries. Key concern is the elimination of
potential conflicts that may arise between political,
administrative and functional (service) jurisdictions
189 Cooperation between national and county
governments
Sets up the basis for cooperation defines the
intergovernmental relations arrangements including measures
for dispute resolution
Allows establishment of joint commissions / authorities key to
dealing with services with cross-county spill over effects
190 Support for county governments Provides avenues for mandatory and/or organised support and
capacity building frameworks to county governments
191 Conflict of laws Provides for resolution of conflicts in respect of matters that are
under the concurrent jurisdiction of national and county
governments
Concern that it could provide an entry point for the
marginalization of county governments
Provides for dealing with unreasonable action by counties, But
reverse does not seem to be the case? Perhaps Article 191 (4)?
196 Public participation Obliges county assemblies to facilitate public participation in the
delivery of public services
201 to 231 Public finance provisions Establishes general framework of transferring resources to
county governments to facilitate public service delivery
207 & 208 Revenue Funds for County Governments Basket fund to finance public service delivery on the basis of
clear laws and regulations
Schedule 4 provides a function for disaster management by
county governments.
It establishes a Contingency fund for National Government, but
none for County Governments.
Source: Authors construct
Reviewing the public service delivery provisions in CoK 2010, it is apparent that there
will be deliberate asymmetric devolution as anticipated under the Sixth Schedule,
Article 15. This will be critical, given the diversity, both in the nature of the political
jurisdictions and the characteristics of households, in allowing the application of
diverse service delivery approaches to ensure the achievement of similar service
levels in all counties.
It is also clear that the provisions articulated under CoK 2010 given the policy
innovations needed to effectively deliver services and remain faithful to it will
produce an unintended decentralization of power and resources. This means that

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county governments will in many instances have responsibility for more functions
and consequently more resources than, prima facie, envisaged. These must be, to the
extent possible be anticipated and provided for in the institutional arrangements to
operationalise county governments.
6.4.2 Assignation to the Levels of Government in Kenya
The constitution creates two levels of government and assigns each level specific
functions and powers to perform and discharge. Article 186 and the fourth schedule
are the main parts that address this issue of functional distribution. Sub-article (1)
provides for the functions by making reference to the fourth schedule, which has two
lists of the functions of both national and county levels of government. It states that
except as otherwise provided by this constitution, the functions and powers of the
national and county governments, respectively, are as set out in the fourth schedule.
But it is important to note that some of the functions of the two levels of government
can be found in other articles of the constitution. It is for this reason that article
186(1) begins with the phraseology that except as otherwise provided by this
constitution,. This phrase recognizes that there may be other provisions of the
constitution which assign functions to the two levels of government. For instance, the
chapter on land by vesting land in different levels of government confers certain
functions on them. By article 62(2)&(3) vesting certain land in county and national
levels of government respectively, certain functions regarding administration and
management of such land are assigned to these levels of government. Article 21 which
deals with the implementation of the bill of rights may also be interpreted as
conferring functions on both the national and county levels of government. The
article provides as follows:
21(1) It is a fundamental duty of the state and every state organ to observe,
respect, protect, promote and fulfil the rights and fundamental freedoms in the
Bill of Rights.
(2) The State shall take legislative, policy and other measures, including the
setting of standards, to achieve the progressive realization of the rights
guaranteed under Article 43.
(3) All state organs and all public officers have the duty to address the needs of
vulnerable groups within society, including women, older members of society,
persons with disabilities, children, youth, members of minority or
marginalized communities, and members of particular ethnic, religious or
cultural communities.
(4) The state shall enact and implement legislation to fulfil its international
obligations in respect of human rights and fundamental freedoms.
These clauses place certain obligations on both the national and county levels of
government and by so doing confer a certain measure of functions upon these two
levels of government. They both have a duty as state organs to observe, respect,
protect, promote and fulfil rights and fundamental freedoms, set out in the
constitution, in general and the bill of rights in particular. Similarly, both levels of

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government are included in the phraseology of the state which is required to take
legislative, policy and other measures, including the setting of standards to achieve
the progressive realization of the socio-economic rights which are provided for by
article 43 of the constitution. Indeed, looking at the functional distribution, one
notices that the greater responsibility to provide socio-economic rights falls on the
shoulders of the county government. The county level of government can therefore
enact legislative edicts and take policy measures that can give effect to these rights.
6.4.3 The Overall Architecture: Modes, Roles and Structure
The CoK, 2010 while providing for functions for the national and county
governments, also mandates them to further decentralize. Article 6 (3) imposes a
duty on all national state organs to ensure access to its services nationwide based on
appropriateness and nature of service. This access, as per Article 174 (h) suggests
that County Governments will be the fulcrums around which public services can be
decentralized. It is therefore entirely feasible that that then the national government
is obligated to decentralize its functions, at least those they would choose to be
deconcentrated, would be done through the county governments. Article 176 (2)
compels every county government to decentralize its functions and the provision of
its services to the extent that it is efficient and practicable to do so.
Figure 6.1: Functional Assignment Architecture in the Constitution of
Kenya, 2010

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Figure 6.1 suggests that both national and county governments can decentralize their
functions through deconcentration or assigning agency tasks87. As illustrated in
Figure 6.1, the national government for its exclusive functions will have a presence at
the county and sub-county levels. This presence could be through the national
ministries, state corporations and/or specific agencies. They could also, in
accordance with Article 187, delegate or transfer the functions to the County
Governments who would act as their agents.
Finally, in a number of respects the national government has been assigned policy
functions only while county governments have been given the implementation
function. Counties have the function of actual production and delivery of goods and
services to the Kenya people. A look at the agricultural, health, housing, planning,
water, environment and roads indicate that the county governments have really
power and will need to be taken seriously.
6.4.4 Unbundling of Functional Competencies
It is important to note that experience elsewhere suggests that functional distribution
is achieved through provisions of a constitution and clarified through laws and
regulations. Where this is not neatly done, the option is for courts to make rulings on
matters of functional and competency distribution. This route is expensive and
messy to the extent that courts are not always focused on broader policy matters, but
in sorting out the issue under litigation. Decisions by courts may not always yield
optimal outcomes. It is imperative therefore that, to the extent that is feasible, for
matters of functional and competency assignment to be sorted out on the basis of a
constitution, but also through clear policy, laws and regulations which are more
amenable to dealing with evolving circumstances through effective unbundling of
functions.
Most countries also find that broad-based functional assignment similar to Schedule
4 in the 2010 Constitution is insufficient for assigning responsibility for the delivery
of services that fall under a particular broad based head of power. Rather than
assigning, for example, primary education to the lowest level of government, in
practice, only certain components or service delivery functions are assigned. Hence
another intervention of functional assignment is to unbundle services within
sectors, particularly if the constitution or organic law does not define specifically
what services are contained in an assigned sector, as is the case with Kenya.
There are at least three dimensions to unbundling sectoral services. One is to
recognize that services in most sectors include a variety of specific service tasks,
sometimes involving multiple ministries. Each service activity associated with a
sector should be identified and analysed. Second and as illustrated in Table 6.3,
delivering a service involves a number of decisions, sometimes terms provision
decisions, including how the service is to be planned, financed (e.g. from fees or

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general revenues), produced (e.g. public or private sector), and managed. As
illustrated in Table 6.3, provision refers to responsibility for the delivery of the
service. The second aspect is production which refers to the actual delivery of the
service. This distinction is useful in facilitating effective delivery of the services
through enhancing participation by various players as well as enhancing appropriate
participation in the process of delivery. It is useful in the sense that it breaks down
the broad functions into discrete activities critical to the delivery of a service.
Table 6.3: Disaggregating the Competencies for Public Service Delivery
Classifying Competencies Elements
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Provision:
Responsibility for the existence of a
public service to which citizens are
entitled
1. Which level of Government is responsible for which level?
2. How is coordination achieved?
3. How is conflict mitigated?
4. Is the same framework applicable across all counties?
5. What level of discretion should be provided for?
6. How is the balance between economic efficiency, public
choice imperatives, sense of belonging to a community as well as
institutional and political constraints to be achieved?
Production:
Refers to the actual delivery of a public
service provides the window for the
private and civil society to be enjoined
in actual delivery
Source: Adapted from Parrado, 2005
Table 6.4: Suggested Definition of Competencies
COMPETENCY DEFINITION
Policy Sets out the reason why a service is provided
Designing, planning
and standard setting
The capacity of deciding the rules that determine the logistics of a service i.e.
answering the questions of what, who, when, and how a service should be provided
Regulating Rules that foster competition of economic and social activities and to protect
consumers through operational rules; collective choice rules and constitutional choice
rules
Delivering Actual management of the service delivery under clearly set out conditions of
performance, the standards and regulations that apply, how the service will be
evaluated and sanctions to punish non-compliance with regulations and standards
Controlling Encompasses monitoring, evaluating, inspecting and sanctioning from the basis of
legality, efficiency, effectiveness, equity, achievement of other stated outcomes
Financing Covering the costs for providing the service through the budget, subsidising, awarding
grants or offering loans
Source: Adapted from Parrado, 2005
Some of these tasks or competencies may be reserved for the national government
whereas others may be devolved to a lower level of government or the private sector /
other non-state actors. Finally, decisions regarding which level of government are
responsible for allocating funds to a service, i.e. budgeting, along with being
responsible for producing the service must be made. Production decisions include
responsibility over labour and non-labour inputs, overseeing and maintaining

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facilities, and constructing or reconstructing facilities. In sum, there is a wide array
of combinations possible in the assignment process.
Literature suggests that for a service to be effectively delivered there must be a policy
defining why, where and in what quantity a service should be produced. To
effectively meet the needs of the intended users, this service must then be planned for
to a predetermined standard. This service must then be produced and distributed for
acquisition by the users. Someone will then ensure that the designated service
provider provides what was promised. Table 6.4 shows suggested definition of the
competencies that would facilitate effective assignment between the different levels of
Government and also enable a focusing of capacity building efforts.
6.4.5 Functional Distribution under the Constitution of Kenya 2010
The CoK 2010 has distributed the various functions between the National and County
levels of government. Based on the interpretation of devolution as articulated in the
CoK 2010, it is apparent that over the long term, counties will be the main service
delivery points, while the national government will be tasked with national policy
setting, regulation and standard setting. Based on this understanding, a Framework
Paper to provide the basis for defining the functions, and assigning appropriate
competencies between the two levels of government should be developed for
implementation.
6.5 COSTING OF ASSIGNED FUNCTIONS AND COMPETENCIES
Once a clear understanding has been achieved as to which level of government will
perform which function and/or competency, it will be important that these functions
have costs of delivering them determined. This must be done in a coordinated
manner, with clear consultations between the entities delivering and the budgeting
units. This costing is key to ensuring achievement of the finance-follows-function
imperative. In fiscal decentralisation literature these costs related to the expenditure
assignments are key to ensuring that the function and/or competencies are
meaningfully funded.
Literature identifies a number of approaches to costing of assigned functions and
competencies. These include the Norms or Minimum Service Standards Approach
and the Production Function Approach. The norms of minimum service standards
approach requires that national standards be defined. These would include detailed
technical and policy goals. The costs of achieving these are then computed and these
form the basis for determining expenditure needs. It has potential challenges in the
sense that it creates incentives for sectors to set high standards in pursuit of
resources and also, if poorly conceived, would allow devolved units to pass blame for
poor delivery of services. The production function method is a normative method in
the sense that needs are computed from the perception of those deciding as to what is
the best way to deliver the function. In the production function approach; there is a

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need to define a service level that is expected. Next, conditions of production needs
for that service level, for each county must be taken into account. It requires a very
good and accurate data base as well as knowledge of service production possibilities
and options.
The costs could be computed by reviewing costs of similar functions in other
countries and looking at the relative shares of devolved vis a vis national government
expenditures on these functions. It is generally not a very accurate method. A second
approach would be to use historical data, gleaned from existing institutional
arrangements. It uses retrospective data to determine the monies that would be
required to deliver the same services in the new devolved environment. It is
dependent on their being good records of costs of service delivery in the pre-devolved
period. The third approach contemplates a full bottom-up calculation of the costs. It
is best applied where good costing data does not exist and there is a consensus on the
desired functional assignment and service delivery standards. A fourth approach is a
judicious combination of approach two and three. In this case previous costs from
existing arrangements would be applied as a short term measure, while full bottom-
up costing is implemented in the medium to long term. Annex 5 provides a review of
these approaches.
Figure 6.2: Options for County Public Service Partnerships in Kenya

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6.6 ORGANIZATIONAL OPTIONS FOR EFFECTIVE SERVICE DELIVERY
Once a determination of the assignment of functions has been done and costs have
been determined, it will then be required that a decision is made as to which
mechanism to use to deliver the services. The issue at hand will be to determine
which approach will deliver the service effectively, in respect of outcomes, while
doing so at the lowest possible cost. There exist a variety of organizational options in
service delivery strategies.
These include public sector
provision, private sector
provision, community sector
provision, and public-private
partnerships. The key
concern in respect of
operationalization of the
counties is the manner in
which the public sector is
organized.
Figure 6.2 illustrates the
options available for public
service delivery in terms of
partnerships with the private
sector. These are the options
that both the national and
county governments could in
addition feasibly use to
deconcentrate delivery of
public services in a manner
that is efficient and effective.
A key question would be the
interface if any with the
national administration and
the embedding of
mechanisms for effective
citizen participation. One option is the establishment of central government offices
in counties to implement national policies on behalf of the national government,
where these are not delegated to county governments. Administrative coordinating
mechanisms would need to be put in place to avoid conflict with county governments
when legitimately executing their mandates.
In respect of citizen participation, their participation in the election of service boards
as well as through referenda on key decisions, establishment of citizen juries as well
ORGANIZATIONAL OPTIONS FOR EFFECTIVE
SERVICE DELIVERY

Every constituency should be a sub-county
Departments headed by a director answerable to the
executive committee
A County Service Commission in charge of hiring, firing
and disciplining staff
County staff should be on permanent and pensionable
terms with retirement benefits
Current civil servants be absorbed by the county
Structure of the County Public Service should borrow
from the structure of local authorities
Cross border services should be under the National
Government
Regional authorities to oversee the management of
cross border services
County Public Service be structured, staffed and
managed by the national Public Service Commission
Employment of support staff be delegated to county
government
Equal representation from counties of cross border
service organisations
Effective health service delivery by counties
Children to self-advocate on issues through clubs on
radio, TV, children magazines and during sports
Establish channels for children to access quality services
and report abuse

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as rights to comment on service delivery plans should be considered. Another
question to answer is, whether in respect of public service delivery, county
governments have exclusive jurisdiction. Can the national government create under
Article 184 create cities, municipalities and other urban areas within counties?
6.7 CONCLUSIONS
Functional responsibilities are what role players governments at all levels and non-
government institutions are expected to do in the process of delivering a countrys
public services. Clarity in this framework is key to effective identification of and
allocation of other resources such as staffing and financial resources. Where
functional assignment is not properly done, public services will be inefficiently
provided and scarce resources inappropriately utilized. A major consequence of this
lies in the resultant lack of competitiveness of local and sub-national economies as
well as provision of public services in a manner that is unresponsive to the welfare
needs of citizens. It can and usually exacerbates lack of inclusiveness and can over
the long term act as a threat to national cohesion.
Figure 6.3: Implementation of the Framework Policy Paper on Functional
and Competency Assignment in Kenya

The Constitution of Kenya, 2010 has made major strides in responding to the nations
governance challenges. This notwithstanding, the assignment of functions to the
national and county governments through other provision of the CoK, 2010 and

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especially the Fourth Schedule point to the need for a unifying framework for the
progressive transfer of
functions. It is therefore
proposed that a Framework
Policy Paper on Functional
and Competency
Assignment be developed to
act as the reference point for
efforts aimed at transferring
functions in government.
This will be completed by
31
st
May 2011.
As illustrated in Figure 6.3
and to avoid a multiplicity of
uncoordinated efforts across
the public sector, it is
proposed that the Executive
lead a unified process of
distribution of functions,
competencies and
responsibilities between the
national and county
governments in the first
instance. This process
should be, in the first phase,
be largely administrative
and guided by the Cabinet
Committee on
Implementation of the
Constitution as the final
policy decision point. This
committee will be supported
by a mirror committee of Permanent Secretaries, who will in turn work through a
Technical Working Group (TWG). The TWG will guide actual implementation
through sectorally defined functional and competency assignment teams (FACTs).
The main implementation document for these teams will be the Framework Policy
Paper on Functional and Competency Assignment and their main outputs will be
Draft Sector Functional and Competency Assignment Policy Papers that
will be cascaded up to the Cabinet for approval. This will form the principal basis for
BOX 6.5: PROPOSALS FOR ANCHORING THE
FUNCTIONAL AND COMPETENCY ASSIGNMENT
PROCESS IN KENYA

1. Develop a DEVOLUTION BILL to incorporate
provisions providing for:
a. Progressive, dynamic transfer of functions and
competencies between the various levels of
government
b. Define the criteria for transfer of functions to
include:
i. When a function can be transferred
ii. Period of transfer
c. Deal with the issues related to the
management of concurrent functions
d. Conditions and mechanisms for transfer of
functions including processes
e. Obligatory/minimum service levels or
standards
f. Performance standards and recourse
mechanisms
g. Mechanisms for on-going adjustments in
functional assignment to take into account
emerging circumstances
2. Costing of assigned functions for the different
levels of governance
3. Ensure that the COUNTY FINANCIAL
MANAGEMENT BILL or the ORGANIC PUBLIC
FINANCIAL MANAGEMENT BILL ensure that there
is fit between assigned functions and funding
mechanisms, including mechanisms for ensuring
accountability
4. Review of the Kenya Joint Assistance Strategy
(KJAS) to ensure that development partners
allocate their resources (funds, technical
assistance) in a manner that responds to and
respects the functional assignment

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transfer of functions in the
public sector. These papers
should have been completed
and approved by Cabinet by 31
st

December 2011.
In order to anchor the process
and to accord with good
international practice, it is
proposed that the Devolution
Bill be formulated to incorporate matters pertaining to transfer of functions.
In addition, this process must be supported by a targeted public communication and
engagement strategy supportive of the goals of the functional and competency
reassignment exercise.
The main outstanding issues are the finalisation of the framework policy paper for
functional assignment, its approval and implementation to rationalise functional
assignment within government.

SOME OUTSTANDING ISSUES

Finalisation of Functional Assignment
Strategy Paper
Determination of the approaches for
costing public services
Preparation of Transition Guidelines

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7 INTEGRATED DEVELOPMENT PLANNING IN THE
DEVOLVED GOVERNMENTS
7.1 INTRODUCTION
Integrated development planning is key to enhancing the efficiency and effectiveness
of public policy as a mechanism for addressing the mandates of the Constitution of
Kenya, 2010. Such planning will be instrumental in ensuring that the envisaged
development devolved government is able to leverage, in as optimal a manner as
possible, the resources available to the County Governments to address the needs of
citizens. It will be a key step in the drive towards building a more just and equal
society for the Kenyan people and their progeny. The major concern of integrated
development planning will be to address the challenge of wealth creation within the
limited resources available.
A key concern for effective and efficient integrated development planning is an
understanding of Kenyas human settlement pattern. As discussed in Figure ***,
Kenyas population is expected to reach 64 million persons by the year 2030. This
population will be largely youthful, with more than 60 percent comprising persons
aged below 35 years of age. It will also be significantly urbanized, from an estimated
29 percent in 2009 to 74 percent in 2030, but with a major rural population in terms
of the number of persons. Current population growth patterns and settlement
dynamics have a number of implications for Kenya, namely:
Settlement dynamics, in terms of the movement and settlement patterns, especially
the intense settlement in the high rainfall areas will be densely settled, puts extreme
pressure on the natural resource base of the country, critical for food security and
sustainable development. It has implications for the demand for and access to basic
services by the citizens;
The differential population growth rates and the resultant changes in population
distribution has implications for the functional boundaries for service delivery and
therefore, the demand for variations in service delivery and electoral boundaries and
consequently the system for boundary demarcation;
Rapid urbanization, in the context of a significant rural population, and emerging
local, regional and global evidence that urban areas will be the engines of successful
wealth creation efforts has implications for measures to deal with urban-rural
linkages. The growth of these urban areas beyond political-administrative areas will
mean that measures to deal with service delivery, in an economical and efficient
manner will need to be put in place.
In this context, integrated development planning will need to address issues of the
merging demographic patterns, provide for productive urban-rural linkages, deal

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with emerging challenges of urban sprawl, peri-urban areas, service provision across
county boundaries, and creation of supportive policy and institutional frameworks.
7.2 INTEGRATED DEVELOPMENT PLANNING AND EFFECTIVE PUBLIC
SERVICE DELIVERY
7.2.1 Why Integrated Development Planning?
Integrated development planning is a process through which devolved governments
can establish a development plan for the short, medium and long-term. The main
steps in producing an integrated development plan are:
An assessment of the current social, economic and environmental reality in the
county area - the current reality;
A determination of community needs through close consultation and aligning
this to the imperatives of the Constitution of Kenya, 2010;
Developing a shared and compelling vision for development in the county;
An audit of available resources, skills and capacities;
A prioritization of these needs in order of urgency and long-term importance;
Development of integrated frameworks and goals to meet these needs;
Formulation of strategies to achieve the goals within specific time frames;
Implementation of programmes and projects to achieve key goals;
Use of performance management tools to measure impact and performance
and make appropriate course corrections.
The Integrated Development Plans are comprehensive, strategic planning
frameworks to help the counties cost effectively and progressively achieve their
developmental mandate. They will assist the devolved governments to amongst other
things:
align national and devolved government development and spending priorities
through ensuring the integration of local government activities with other
spheres of development planning at provincial, national and international
levels, by serving as a basis for communication and interaction;
align their financial and institutional resources behind agreed policy objectives
and programmes; and
serve as a basis for engagement between local government and the citizenry at
the local level, and with various stakeholders and interest groups.
Participatory and accountable government only has meaning if it is related to
concrete issues, plans and resource allocations.

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7.2.2 Linking Integrated Development Planning and Effective County
Governance
Effective county governance is about facilitation of the citizens of the various counties
to realize their highest potential. Through working towards the realization of the
objects of devolution as articulated in Chapter 11 of the CoK, 2010, county governance
enhances access by citizens to opportunity. To avoid many of the challenges of
uncoordinated planning and development, there will be need to harmonise sectoral,
national, localised as well as term planning to secure effectively our development
outcomes as illustrated in Figure 7.1.
Figure 7.1: Components of Integrated Development Planning for Kenya

Kenyan counties face immense challenges in not only addressing the development
challenges arising from the demands of the new constitution. They face the
additional challenge of, in the process of raising the welfare of their citizens, acting as
the engines of growth in the move towards achieving the goals set out in Kenya Vision
2030. The imperative of building attractive and sustainable settlements which meet
the needs and improve the quality of life of local communities are major. As earlier
illustrated to meet these challenges, the counties will need to develop a clear and
compelling economic and social vision for their areas, will need to understand the
various dynamics operating within their area, deliver the appropriate services to build
liveable places strategies for realizing and financing that vision in partnership with

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other stakeholders. To do this, they will require an integrated development planning
framework to effectively and proactively harness the resources at their disposal.
7.3 OPERATIONALISING EFFECTIVE INTEGRATED COUNTY DEVELOPMENT
PLANNING
Effective integrated development planning is premised on the presence and
operationalization of an effective legal framework, as well the capacity to define and
realize the instruments for development planning.
7.3.1 Constitutional Basis for Integrated County Development Planning in
Kenya
Under the CoK 2010, development planning is anticipated at various levels. Schedule
4 of the CoK, 2010 assigns various elements of development planning to the national
and county governments. This Schedule assigns national economic policy and
planning, national statistics and data on population, the economy and society
generally, general principles of land planning and the coordination of planning by the
counties to the national government. County governments are assigned county
planning and development including statistics, land survey and mapping, boundaries
and fencing, housing, electricity and gas reticulation and energy regulation. Other
functions key to development planning assigned to counties include county transport,
country agriculture, county health services, as well as trade development and
regulation. In respect of counties, these set of functions assign primary influence on
county economic planning to the counties themselves. A major component of
development planning, namely regional planning is not mentioned. This is then
taken to be a national government function.
Other provisions of this constitution explicitly or implicitly assign objectives of
development planning and these are also clear and onerous. Table 7.1 documents the
various provisions.
Table 7.1: Key Constitutional Provisions relevant to Integrated County
Development Planning in Kenya
ARTICLE THEME IMPLICATIONS FOR INTEGRATED DEVELOPMENT PLANNING
Preamble Basis for public service delivery Basis and goals for public service delivery. These goals must be made
objects of development planning
1 (4) (a)
and (b)
Sovereignty of the people to be
exercised at national and county
levels
Main platforms for planning and must be provided clear roles in the
planning processes. One key missing aspects is that of regional
planning. This is a residual function of national government, but must
provide clear roles for counties in the development of regional plans.
6 (2) Basis of engagement between
national and county governments
Need for coordinated and informed planning between the two levels of
government
6 (3) Devolution and access to national
services
Planning as a tool for harmonising service delivery frameworks
10 National values to be reflected in all
activities of government
Basis and goals for public service delivery implying that planning
services and processes must be readily accessible to citizens
11 (2) (c) Intellectual property rights Protection of indigenous property rights whilst delivering public services.
Integrated Development Planning must protect indigenous knowledge

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12 (1) Entitlements of citizens Right of citizens to public services subject to clearly defined
constitutional provisions
Need to be clear about what the limits of the constitution are in respect
of public services
19 Rights and fundamental freedoms of
every citizen of the Republic of
Kenya
Sets the basis to social, economic and cultural rights
Need to understand what these means for physical and economic access
conditions to public services
20; 21, 22,
23, 24, 25
Application, implementation,
enforcement, authority of courts and
limitations of Bill of Rights to all
state organs and all persons, public
or private and also the basis for
interpretation of Bill of Rights
Circumscribes the level of access and acceptable standards and norms
for public service delivery
26 Right to life Any form of public service delivery that threatens the right to life is
unconstitutional
27 Equality and freedom from
discrimination
Public services shall be delivered in an equitable and non-discriminatory
manner
28 Human dignity Public services shall be delivered in a manner that recognises and
protects human dignity
Definition of human dignity should be well understood
29 (f) Freedom and security of the person Public services should ensure people are not subjected to cruel,
inhuman or degrading conditions
30 (2)
41
Slavery, servitude and forced labour
as well as labour relations
Public services should not be delivered using forced labour
31 Privacy of every person In delivering public services, information collected from citizens must be
protected and not divulged in an unauthorised manner
32 (3) Freedom of conscience, religion,
belief and opinion
No one may be denied access to public services on account of their
beliefs or religion
33 (1) (a)
and 35
Freedom of expression and access to
information
Establishes a basis for informed and obligatory citizen participation in
planning frameworks
42 Clean and healthy environment Key planning goal
43 Rights to highest attainable standard
of health care, health care services
and reproductive health care;
adequate housing; reasonable
standards of sanitation; freedom
from hunger; clean and safe water;
social security; education;
emergency medical treatment
Planning must ensure a move to the delivery of these rights to citizens
46 Obligations on providers of goods
and services to consumers
Public services must be delivered that are of reasonable quality,
including access to information to facilitate effective utilisation by
consumers of those services; protection of their health and safety and
to compensation for loss and injury
47 and 50 Fair administrative action and Fair
hearing
Planning procedures and processes must integrate a right to appeal
and/or object for citizens
53, 54, 55,
56, and 57
Specific application of the Bill of
Rights to children, persons with
disabilities, youth, minorities,
marginalised groups and older
members of society
Lays the basis for affirmative action and should guide the focus of
planning as an instrument for affirmative action
60 and 66 Principles of land policy as well as
the regulation of land use and
property
Key principles to be engendered in development planning efforts
61 Establishment and functions and
National Land Commission
A key institution in defining planning frameworks land use policy;
registration of titles; taxation on land; oversight of land use planning
69, 70, 71,
72
Kenyas environment and natural
resources and their utilisation
Planning must protect and sustain the natural environment
73 to 80 Leadership and integrity of public
servants
Framework of personal and public behaviour and action by public
servants in delivering public services bring honour to the nation;
promote confidence to the public service
81 to 89 Electoral systems and processes
including delimitation of electoral
areas
Where public services are to be delivered through elected institutions,
the framework for these processes is established here

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94 Role of Parliament Legislative authority to alter boundaries, functions as well as define the
nature and scope of policies and laws
95 Role of National Assembly Enact laws, determine allocation of national revenues, appropriate funds
for expenditure by state organs, exercise oversight over state organs
96 Role of the Senate Represent counties, protect interests of cuties and their governments,
deal with matters concerning counties, determine allocation of national
revenue amongst counties (217), oversight over national revenue
allocated to county governments, oversight of state officers in accord to
Article 145
174 to 200 General purpose and structure of
devolved government
Ensure equity in sharing of national resources, promote national unity,
give voice to local communities; promote accountability and citizen
participation in governance of the nation; give powers of self
governance to communities; and ensure proximate, easily accessible
service delivery that will facilitate socio-economic development in a
manner that protects the rights of the minority and marginalised
174 (e) Facilitate decentralisation of national
government functions and services
from Nairobi
Implies that County Governments will be the fulcrums around which
public services can be decentralised. Central Government will move all
services that must be decentralised through County Governments
175 (b) Principles of funding public service
delivery
County governments shall have reliable sources of revenue to enable
them govern and deliver services effectively
176 County governments Means that there shall be a county government responsible for county
planning in each county and that each county shall decentralise its
mandated functions and competencies to the extent that it is efficient
and practicable see also effect of the Sixth Schedule, Article 15
183 County executive committees public
service delivery responsibilities
County executive committee responsible for operationalising county and
national legislation and report on the same to the county assembly
185 Legislative authority of county
assemblies
Approval of plans and policies responsible for managing and exploiting
county resources as well as development and management of its
infrastructure and institutions
186 Assignment of functions between
national and county levels of
government
Key to assigning of competencies between the national and county
levels of government as well as forming the basis for effective resource
sharing as well as performance management
187 Transfer of functions between levels
of government
Provides the framework for delegation of functions between the two
levels of government, either way by mutual agreement, including the
requisite transfer of resources allow for transfer of planning functions
for purposes of regional planning between counties
188 Boundaries of counties Demarcation of boundaries key to establishing the spatial mandates of
counties in planning
189 Cooperation between national and
county governments
Sets up the basis for cooperation defines the intergovernmental
relations arrangements including measures for dispute resolution and
allows establishment of joint commissions / authorities key to dealing
with services with cross-county spill over effects basis for regional
planning interventions
190 Support for county governments National government support to counties for effective development
planning
196 Public participation Obliges county assemblies to facilitate public participation. Measures
must then be put in place to facilitate effective public participation in the
county planning processes
220 (2) Form, content and timing of budgets National legislation to provide for structure, timing, form and manner of
consultations in the preparation of national and county government
budgets and plans
Key amongst these objectives is the progressive realization of the provisions of the
Bill of Rights. Effective development planning must link national and county
economic planning. Recognizing that development takes place on land, and to avoid
the challenges of the past, there must be a clear connection between economic and
land use planning. In addition, recognizing that certain services are most cost
effectively provided on a large scale, there needs to be provisions for cross-county and
cross-national boundary spatial planning.

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7.3.2 Proposals for Integrated Development Planning in Kenya
In order to realize the objectives of integrated development planning, there will be
need for legal and institutional mechanisms to foster and guide the progressive
realization of a society led by planning. Evidence from other sub-Saharan African
states suggests that there is significant scope for improvements in resource
utilisation, through harmonisation of parallel planning processes, with consequent
misalignment of these and the outputs/outcomes.
Figure 7.2: Proposal for Integrating Development Planning Frameworks in
Kenya

This planning will be implemented at the national, regional, county, sub-county and
ward levels as illustrated in Figure 7.3. The instruments for achieving the anticipated
planning outcomes would be crafted in development planning policy, legislation and
guidelines.

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Figure 7.3: Operationalising Integrated Development Planning in Kenya

In this regard, it is proposed that a County Development Planning & Facilitation Bill,
2011 to provide a general framework for integrating economic and spatial planning be
passed. The objectives of this Bill shall be to facilitate and guide the development a
strategic, integrated development planning framework for counties in Kenya. In
respect of counties, it will:
provide for clear spatial objectives, including land use and settlement patterns;
require them to develop clear service delivery objectives in terms of standards
and levels of services as well as time bound plans for their achievement;
link national, regional, county, sub-county and ward level planning and
development control activities
As illustrated in Figure 7.2, there is need to provide for integrated planning linked to
a national development vision and strategy. We will require having various
coordinated plans at the national and county levels. To deal with the cross county
issues, effective regional planning will need to close the missing middle as illustrated
in Figure 7.3. The manner in which development planning is to be implemented is
implicitly anticipated under Article 6 on devolution and access to services. It is
suggested that these plans should be updated within 9 months by each incoming
County Government and translated effectively into 5-year Delivery Program for each
County Governments term of office. Each county Governor would in addition be

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required to make an annual State of the County Report that would provide
indications as to progress in achieving the plans by their administration, including a
statement of the challenges they face.
7.4 CONCLUSIONS
One of the major challenges we have faced is the lack of comprehensive and
coordinated planning. This situation was made worse by the inadequate linkages
between planning and budgeting that effectively hampered implementation. It is no
surprise that the country is renowned for developing comprehensive and strategic
development blueprints, which are never implemented. This is a challenge that must
not infect the devolved system of government. To this end, it is proposed that:
A County Development Planning & Facilitation Bill, 2011 be developed and passed.
This will form the basis for integrating economic and spatial planning at the national
and county level. It will also be the basis for identifying programmes, projects and
initiatives aimed at improving the welfare of Kenyans. All appropriations at the
county level should be based on the Integrated County Development Plan (ICDP) that
will be one of the key outputs of this will be the basis for expenditures by county
governments. In the transition process, the inaugural Governors should be mandated
to develop and have approved within the first 12 months the first ICDPs to be
approved by the county assemblies within the same period. As illustrated in Figure
7.3, the ICDP should take account of the national, county and cross-county
development imperatives. The County Development Planning & Facilitation Bill,
2010 will provide for the ICDP that will comprise the following instruments to be a
compulsory requirement for all county governments, namely:
County Spatial Plan: this will provide a spatial expression of the social and
economic development programme of the county, with clear statements of how
it is aligned to and at the regional and national level in a manner that
harmonizes the sustainable development of the county and Kenya. It forms
the basis for other sub-county plans, elaboration will be a prerequisite for
appropriation of resources. It shall contain short, medium and long term
measure programmes aimed at eliminating or ameliorating dysfunctionalities,
disparities and inequalities within the county
County Institutional Plan: this will elaborate the capacity building
measures required to strengthen County Level institutions, organisations,
laws, regulations and processes, in a manner that will lead to the effective
application of the plans;
County Human Resources Plan: will focus of enhancing the skills levels
within the county to enable adherence and achievement of county and national
development imperatives;

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County Performance Management Framework: will be designed to
facilitate the objectives of the county as articulated in the County Spatial Plan
by ensuring that it responds to the needs of individuals and communities;
prioritises actions and
activities including
resource acquisition and
utilization; promotes
accountability for public
service delivery; ensures
citizens get value for
money and motivates
county staff to strive for
enhanced performance.
To strengthen the link between
planning, financing and
budgeting appropriations of
county and national budgets
should be premised on the
The ICDP will also form the basis of the lower levels of governance development
plans.

OUTSTANDING ISSUES

Redefining the Public Policy Formulation
Process in a Devolved Environment
Drafting of the County Development
Planning & Facilitation Bill, 2011
Elaborating on the Contents of the Plans
Articulating the Planning Processes and
Citizen Participation Opportunities in those
processes

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8 INTERGOVERNMENTAL RELATIONS AND DISPUTE
RESOLUTION
8.1 INTRODUCTION
Devolution constitutes a strong anchor against concentration of power in the
Executive and engenders co-operative governance. It also accommodates diverse
interests and avails an environment of public participation by the people in the
manner they are governed.
The Constitution provides for National and County Governments as distinct and yet
interdependent levels. The principle of cooperative government regulates the
relationship between and requires integrity at each level of government. In addition,
government activities must be coordinated in order to avoid the wastage of scant
resources. Where conflicts occur, these ought to firstly, be resolved through
alternative dispute resolution processes with court action being the last resort.
Functions and responsibilities too, must be deliberately and rationally distributed in
order to enhance the efficiency and effectiveness of government as a whole.
Intergovernmental relations are institutional mechanisms for bilateral and
multilateral interaction within and between levels of government for co-ordination of
government policies and functions. They reduce incidents of conflict and facilitate
resolution of disputes that may occur.
The Terms of Reference of the Task Force include undertaking stakeholder and public
consultation to develop consensus on options of structures and institutions of
devolved government. We have, in this chapter, proposed practical mechanisms to
facilitate the requisite co-operation and co-ordination. Our recommendations are
informed not only by extensive relevant comparative experience, but more
importantly, from the invaluable views expressed by Kenyans during the public
consultations.
In setting the context, we begin with an overview of Kenyas erstwhile administrative
system. The rationale and principles for intergovernmental relations are then
addressed. We next examine the different levels, namely, national to county, inter
and intra county at which this co-operation is required and make recommendations
on the policy and legal framework.
8.2 SETTING THE CONTEXT: A BRIEF OVERVIEW OF KENYAS
ADMINISTRATIVE SYSTEM

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Kenyas administrative
system, prior to the
adoption of the new
Constitution, was
informed by its strong
centric policies within a
unitary system of
government. Central
government was
supreme and Kenyas
post-independence
administrative
experience was
characterized by
delegation of powers to
sub-national units at six
levels, namely, sub-
locational, locational,
division, district,
provincial and national.
The official rationale,
particularly during the
nineties, was that
national unity could
only be harnessed
through a strict central
ordering of politics and
the economy. In this
regard, local
government became an
effective mechanism for
limited decentralization
with the center
retaining complete
control over local
authorities. Legislative
authority was entirely vested in a unicameral house, which would delegate powers to
various state institutions and non-state actors to implement the law.
The principle of devolution, which is entrenched in the new Constitution, heralds a
complete shift from the old order. Mechanisms for vertical and horizontal co-
RELEVANT CONSTITUTIONAL PROVISIONS FOR
INTERGOVERNMENTAL RELATIONS
Article 1 (4): The sovereign power of the people is exercised at the
national level and the county level;
Article 6 (2): the governments at the national and county levels are
distinct and inter-dependent and shall conduct their mutual relations
on the basis of consultation and co-operation;
Article 186 (2): A function or power that is conferred on more
than one level of government is a function or power within the
concurrent jurisdiction of each of those levels of government;
Article 189 (1): Government at either level shall perform its
functions, and exercise its powers, in a manner that respects the
functional and institutional integrity of government at the other level,
and respects the constitutional status and institutions of government
at the other level and, in the case of county government, within the
county level;Assist, support and consult and, as appropriate,
implement the legislation of the other level of government; andLiaise
with government at the other level for the purpose of exchanging
information, coordinating policies and administration and enhancing
capacity.
Article 189 (2): Government at each level, and different
governments at the county level, shall co-operate in the performance
of functions and exercise of powers and, for that purpose, may set
up joint committees and joint authorities;
Article 189 (3): In any dispute between governments, the
governments shall make every reasonable effort to settle the
dispute, including by means of procedures provided under national
legislation;
Article 189(4): National legislation shall provide procedures for
settling inter-governmental disputes by alternative dispute resolution
mechanisms, including negotiation, mediation and arbitration;
Article 189 (5): In considering an apparent conflict between
legislation of different levels of government, a court shall prefer a
reasonable interpretation of the legislation that avoids a conflict to
an alternative interpretation that results in conflict;
Article 189 (6): A decision by a court that a provision of legislation
of one level of government prevails over a provision of legislation of
another level of government does not invalidate the other provision,
but the other provision is inoperative to the extent of the
inconsistency;
Article 96 (1): The Senate represents the counties, and serves to
protect the interests of the counties and their governments.

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operation and consultation between the National and County Governments must,
therefore, be identified and harnessed in order to avoid the centralized and unilateral
decision-making that has been the hall mark of Central Government for many years.
8.3 RATIONALE AND PRINCIPLES OF INTERGOVERNMENTAL RELATIONS
8.3.1 Rationale for Intergovernmental Relations
Article 186 of the Constitution provides for the functions and powers of the National
and County Governments respectively and the powers within the concurrent
jurisdiction of each of those levels of government. Both levels, of necessity therefore,
must co-operate.
8.3.2 Principle of Fidelity to the Nation
Article 10 (2) of the Constitution states that the national values and principles of
governance include patriotism, national unity, sharing and devolution of power, the
rule of law, democracy and participation of the people. This is the principle that
requires the people of Kenya to understand that we are united in diversity, the
operationalization of County Governments notwithstanding.
8.3.3 Principle of Unity in Diversity
In the preamble to the Constitution, the people of Kenya express pride in their ethnic,
cultural and religious diversity and declare the determination to live in peace and
unity as one indivisible sovereign nation.
8.3.4 Principle of Cooperation
Article 189 of the Constitution provides for mechanisms of cooperation between the
levels of government. The new political system requires duty bearers to work in
consultation, exchange information, and have respect for organs, institutions and
structures as the law provides. Such cooperation includes fostering national unity,
harmonizing policy formulation, coordinating of socio-economic policies,
implementing of legislation, enhancing capacity and facilitating National and County
Governments operations. This principle assumes importance in view of the need to
manage shared resources between the Counties.
8.3.5 Principle of Interdependence
Article 6 of the Constitution provides for interdependence in the operations of the
two levels of government. These are distinct and inter-dependent and shall conduct
their mutual relations on the basis of consultation and cooperation.
8.3.6 Principle of Oversight
Article 174 states that the objects of devolution of government are to promote
democratic and accountable exercise of power and, to enhance checks and balances

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and the separation of
powers. This principle
requires that both levels
play an oversight role
and as a result protect
and uphold the
Constitution.
8.4 EMERGING
KEY ISSUES
Based on the provisions
outlined in the
Constitution, the
following issues arise:
1. Mechanisms of
vertical
consultation and
co-operation
between National
and County
Governments;
2. Mechanisms of
consultation and
co-operation
between the
County
Governments and
other state
organs and
officers, namely,
o Senate;
o Senators;
o Members of
the National
Assembly.
3. Mechanisms of horizontal co-operation between County Governments;
4. Mechanisms of co-operation between the County Governments and the
citizenry;
5. Horizontal relations between the County Governments and Cities,
municipalities and urban areas.
6. Mechanisms for conflict resolution (including in situations of conflict of laws)
between the National and County Government.
GLOBAL IGR EXPERIENCES
South Africa (National and Provincial Spheres)
The Republic of South Africa has a hybrid presidential-parliamentary
system. A notable feature of the 1996 Constitution is Chapter 3
(articles 40-41) entitled Co-operative Government. This explicitly
enunciates that intergovernmental co-operation is to be the underlying
philosophy for the conduct of government and relations between the
three spheres of government: national, provincial and local.
Furthermore, to encourage intergovernmental co-operation, the
constitution empowers the Constitutional Court, if it is not satisfied that
every reasonable effort to settle a dispute by intergovernmental
negotiation has been taken, to refer a dispute back to the governments
involved (article 41(4)).The Intergovernmental Relations
Framework Act, No. 13 of 2005 (pursuant to section 41(2) of the
Constitution establishes and provides for structures and institutions to
promote and facilitate intergovernmental relations. It regularizes a
number of existing Inter Governmental Relations (IGR) fora which
include the South Africa Local Government Association (SALGA).
Another forum for co-operation and co-ordination is the Presidents
Coordinating Council (PCC). It consists of the President, the
Deputy President, the Minister in the Presidency, the Minister for
Provincial and Local Government, the Minister for Finance, the Minister
for Public Service and Administration, the Premiers of the nine
provinces, and the Chairperson of SALGA. The PCC meets twice a year.
It is, however, primarily a consultative body, its decisions not being
formally binding or enforceable.
Germany (Federal and Lander Governments)
Germany has also developed an extensive number of other extra-
constitutional bodies and procedures for intergovernmental
consultation and co-ordination. These include the Conference of
Ministers-President (Premiers), in which the Federal Chancellor (Prime
Minister) participates, and which meets at least twice a year and
Numerous Conferences of Specialized Ministers of the Federation and
the Lnder. With regard to the latter, each meets at least once every
six months, and each meeting is preceded the week before by a
meeting of the relevant state secretaries. These ministerial meetings
are significant because they make political decisions, generally on the

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7. National Government intervention and suspension of Counties.
8.5 MECHANISMS OF CO-ORDINATION AND CO-OPERATION
8.5.1 National Government and County Government
The areas of potential conflict between the two levels of Government include issues
relating to financial management and resource allocation criteria and intervention in
and suspension of Counties by National Government. There is a likelihood of abuse
of power by National Government when exercising oversight authority over County
Governments. The County Governments too, could exercise their authority recklessly
and hence fail to deliver services to the citizenry.
Mechanisms of co-operation and co-ordination must address those concerns.
Most federations, especially parliamentary ones, have found formal or informal
federal-provincial and inter-provincial councils of considerable value for facilitating
intergovernmental collaboration. In Australia, India and South Africa, the emphasis
is on effective federal-provincial councils dealing with issues of both vertical and
horizontal collaboration. The Australian experience illustrates that constitutional
underpinning is not essential. The gaps that exist in Constitutions, including Kenyas,
can be filled either through legislation or even informal mechanisms to which the
levels are committed to. In establishing formal institutions to improve
intergovernmental collaboration it will be essential to ensure that they are open,
transparent, accessible and responsive in order to avoid undemocratic practices. The
experience from South Africa, Germany, Australia and Canada in this regard, is
instructive.
8.5.2 Views Expressed by Kenyans
Design of a policy and legal framework to guide cooperation and consultation
between National and County Governments
Establish a ministry of cooperative government at the national level to manage
the affairs of County Governments
National Government should focus on policy formulation and training of
County civil service, while County Government concentrates on
implementation of projects and services
Establishment of a joint association that regularly meets with the Governor to
share information that will help in harmonizing laws between National
Government and County Government
A National Advisory Committee to help in the operations of the Counties
There is need to have a coordinator between the County and the National
Government

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Formation of
joint county
board/committees to
coordinate functions,
services and
facilitate co-
operation between
the National
Government and
County Government
The County
Executive cabinet
should reflect that of
the National cabinet
in number, function
and service
Mechanisms
to be put in place for
the Governor to brief
the President on the
matters in the
County Government
Senator should be a link or a hub between the National Government and
County Government to facilitate cooperation
There should be matching of the National Parliament with County Assemblies
on the issue of standing orders, business calendar, and committees but
legislation of the National Parliament should not affect the County Assembly
8.5.3 Recommendations
We recommend:
1. An intergovernmental relations legislation and where practicable, concrete
decision-making mandates be assigned to the designated intergovernmental
institutions
2. An intergovernmental/co-operative National Government ministry and
corresponding County departments / ministries to co-ordinate matters of
intergovernmental co-operation
3. A policy direction that National Government should endeavor to focus on
policy formulation and enhancing the capacity of the County Governments,
while the latter concentrate on implementation of projects and efficient
delivery of services
FURTHER GLOBAL IGR EXPERIENCES
Australia (Federal and State Governments)
Australia, like Canada combines federal and parliamentary institutions. With
the exception of the Loan Council, intergovernmental relations are not
referred to in the constitution. Australia has established a number of major
formal councils to deal with policy issues that have intergovernmental
implications. The Council of Australian Governments (COAG) is Australias
primary intergovernmental institution. It was established in 1992 in a
movement to reform intergovernmental relations in Australia. It is chaired
by the Prime Minister and includes all the State Premiers and Territory
Chief Ministers and the President of the Australian Local Government
Association. It generally meets at least once a year. The main purposes of
COAG are to increase co-operation among governments and to oversee
and co-ordinate the work of the Ministerial Councils. There are some 30
intergovernmental ministerial councils dealing with sectoral responsibilities
at which a minister of the Commonwealth and of each state and territory
attends. A number of these ministerial councils have decision-making
mandates assigned by legislation and have voting rules, thus making them
genuine intergovernmental co-decision mechanisms.
Canada: Federal Government Model Legislation
The Federal Government adopts a model legislation that regulates a given
field in a detailed way while allowing for the possibility of suspending its
application in a province that has a regulation deemed equivalent by
Ottawa.

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4. National
Government
provides transitional
model legislation
where practicable
pending the
enactment by the
County Assemblies
of their own context
specific legislation
5. An association of
organized municipal
authorities be
underpinned in the
intergovernmental
relations legislation
6. A National and
County coordinating
council be
established
comprising the
National President,
Deputy President,
Cabinet Secretaries,
the 47 County
Governors and the
Chairperson of the
association of the
organized municipal
authorities
7. The County
Executive ministries
be coordinates to the
national ministries
where practicable.
Sectoral
Forums/Working
Groups comprising
of Cabinet
Secretaries, the
corresponding
County Executives
be established in
order to facilitate and co-ordinate the execution of national government
Germany: Joint Co-operation between the City State of
Berlin and the State of Brandenburg

An ongoing project between the City State of Berlin and the
neighboring Lander of Brandenburg is the Berlin-Brandenburg
International Airport. The Federal Government and the two
Landers developed a joint design and set up an operating legal
entity that will manage the enterprise and pay out dividends to
the participating parties. The mutual economic benefits for the
Landers include employment creation and an expanded service
industry
France: the Inter Communality Approach

France with 101 Departments and over 36,000 Communes faces
an even greater challenge in this regard. In 1971, the Marcellin
law offered support and money from the government to entice the
communes to merge freely with each other. This system of inter
communalities had only a limited effect since only about 1,300
communes agreed to merge with others. As a result, a body
comprising elected Mayors and Councilors is currently making
proposals on the formation of mandatory viable consolidated
entities.
IGR Experience in South Arica (Provincial Sphere)

The Premier of a province is responsible for coordinating inter-
governmental relations within the province between the provincial
government and local government in the province. The
membership includes the Premier, at least the provincial Executive
Council members (MECs) for Local Government, mayors of district
municipalities and where applicable metropolitan municipalities
and a representative of organized local government. It must
periodically report to the Presidents Co-ordinating Council on
matters of national concern and progress on the implementation
of national policy and legislation within a province.
Canada: Incorporation of Legislation by Reference

A valid legislative technique is incorporation by reference,
enabling a legislature to adopt the legal standards of another
order of government on a related field. This technique and
administrative delegation has been used to uniformly regulate
issues affecting the Provincial jurisdiction, for example, in intra-
provincial transportation of goods. Under the federal jurisdiction,
inter-provincial and international transportation of goods is also
similarly regulated. This approach assists the provinces in
implementing an inter-provincial mutual recognition system
allowing users to deal with single administration. The passport
system developed by the Provincial Securities Commission enables
a registrant to access markets in all provinces once certification
has been obtained in one of them.

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functions (police
services, health,
education,
immigration and
citizenship etc)
within the Counties
8. The
Committees of the
County Assembly
coordinate to the
National Assembly
Committees where
practicable.
Working Groups be
established
8.5.4 Inter-County
Governmental
Relations
The areas of
potential conflict
between the County
Governments
include issues
related to utilization
of trans-county
shared natural resources (forests, game reserves, rivers, lakes etc), sharing of existing
assets in the provincial headquarters and developing joint infrastructure projects
(roads and water projects). This requires the establishment of joint fora for co-
ordination. In Germany, for example, the two states of Berlin and Brandenburg have
worked together closely for years, a unique situation in Germanys federal system.
Comparative experiences also show that our county component of 47 is far too large
and unless counties co-operate in the execution of their functions, the benefits
accrued from economies of scale will be lost (road construction, procurement of
machinery, medical drugs etc). Some countries with a longer devolution experience
than Kenya, have also encountered operational challenges attributed to numerous
territorial units. In this regard, Germany with its 16 Landers has already set up a
Commission to make recommendations on how to reduce these units.
8.5.4.1 Views Expressed By Kenyans
Design of a policy and legal framework to guide cooperation and consultation
between county governments
Sri Lanka: Provincial Working Groups

In Sri Lanka, for example, Provincial Working Groups have been
established. They comprise of representatives from various technical
sectors and allow participation from civil society and private sector. They
are the basis for real territorial development where needs are analyzed
and respective government plans are complemented by civil society and
private sector contribution.
Ghana: Composition of the District Assembly

In Ghana, Article 242 of the Constitution provides that a District
Assembly consists of the following members:
One person from each local government electoral area within the
district elected by universal adult suffrage;
The member or members of Parliament from the constituencies that
fall within the area of authority of the District Assembly as members
without the right to vote;
The District Chief Executive of the district and;
Other members not being more than thirty per cent of all the members of
the District Assembly, appointed by the President in consultation with
the traditional authorities and other interest groups in the district.
South African IGR (District and Inter-Municipalities)

The mayor of a district municipality must establish a district
intergovernmental forum to promote and facilitate intergovernmental
relations between district municipality and the local municipalities in the
district. It discusses and consults on draft national and provincial policy
and legislation relating to matters affecting local government interests in
the district.
Two or more municipalities may establish inter-municipality forums to
promote and facilitate intergovernmental relations between them.

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A regional consultative organ be established to co-ordinate Counties in issues
of mutual interest
Have inter-county committees meeting quarterly to discuss issues of mutual
interest
Establish a governors forum every six months to deliberate on the issues in
their Counties to enhance cooperation and inter-relations
Form a County steering group comprising County Executives, County
Senators, among others to coordinate operations within Counties
Appointment of County ambassadors/liaison officer by every County for
representation
Establishment of County line ministries that correspond to the national
ministries.
Establishment of inter-county technical agencies to manage cross-county
services
We recommend:
1. The enactment of intergovernmental relations legislation to support inter
county co-operation
2. The incorporation of legislation by reference be underpinned in the
intergovernmental relations legislation to enable Counties that are subject to
the asymmetrical devolution of the legislative function or those that are yet to
legislate a particular law to adopt the legislation of another county on a related
field
3. There be established a Council of Counties comprising the 47 Governors with
the chair on rotational basis, and shall hold a minimum of two sittings per
year. Its steering committee be composed of senior public servants responsible
for intergovernmental affairs from each county. This would report to the
National and County Co-ordinating Council on matters of national concern
and progress on the implementation of national policy and legislation within
the County
4. Additional fora to address issues of trans-county concerns be constituted on a
needs basis
5. An inter-municipality forum comprising the elected representatives to convene
at least twice a year
8.5.6 Intra County Co-operation
The County Government comprises of the County Executive and the County
Assembly. There are other elective positions including the Senators and the Members
of the National Assembly. It is also envisaged that some sub county units (cities and

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urban areas) will have elected members. It is, therefore, imperative that mechanisms
of co-operation and co-ordination be established in order to improve service delivery.
The principle that the devolution design ought to assume a broad institutional
interpretation requires that public participation including also the involvement of
non-state actors is emphasized. In this regard, also, the role of the public private
partnerships is critical.
Senators should have offices at County level and attend County executive
committee meetings as ex-officio members and address the County Assembly
on designated days
Senators and Members of the National Assembly should, through inter alia,
seminars, workshops and meetings between counties and their elected
officials, be conversant with the operations of the county government so that
they can present county views effectively
The Senators should participate in regular question and answer sessions with
the County.
The County Government should invite the Senator for quarterly meetings to
seek advice as necessary.
The Senator should organize quarterly/biannual review meetings with the
Speaker of the County Assembly to give advice on County legislation as
required.
We recommend:
1. The relationship between the Senate and the County Assembly be coordinated
by requiring the County Assembly to provide full and regular reports to the
Senate on a bi-annual basis and the Senate to in turn provide the County
Assembly with feedback on a bi-annual basis
2. An intra-County forum comprising of the Senator, Governor and Members of
the National and County Assemblies be established to hold consultative
meetings on a bi-annual basis
3. An inter-municipality forum be established between the County government
and its sub units
4. County working groups comprising representatives of Civil Society
Organizations, Community Based Organizations (to include representatives of
minorities and marginalised groups), private sector, professional associations
and respective County Executive technocrats be established

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8.6 CONSTITUTIONAL SOLUTIONS TO THE CHALLENGES
8.6.1 Concept of Cooperative Government
Article 189 of the Constitution lays the framework for cooperation between National
and County Governments. Each level of government is supposed to perform its
functions in a manner that respects the functional and institutional integrity of the
government at the other level. The government at either level is supposed to assist,
support and consult and as appropriate implement legislation of the other level.
8.6.2 Need for Joint Committees and Joint Authorities
The Constitution provides for the formation of Joint Committees and Joint
Authorities to facilitate co-operation at both levels and also inter county co-
ordination in the performance of functions and exercise of power.
We recommend that the Joint Committees and Joint Authorities be inclusive in
representation by:
Having representatives of both levels of Government and representatives for
County Governments be nominated by the Council of Counties, approved by
the Senate, and appointed by the Governor
Representatives of the National Government will be nominated by the
respective Cabinet Secretary / competent authority, approved by the National
Assembly and appointed by the President.
8.6.3 The Role of Senate
Article 96 of the Constitution provides for the role of the Senate. The Senate, inter
alia, represents Counties and serves to protect their interests and their governments.
It participates in the law-making function of Parliament by considering, debating and
approving Bills concerning counties in accordance with the Constitution. It is also
involved in determining the basis of revenue sharing in the Counties and also
exercises oversight over the same.
The effective execution of the Senates mandate requires clear mechanisms of co-
operation between the Senate and National Government. This link is expressly
established by the Constitution. The Senate participates in the oversight of the
Executive by considering and determining any resolution to remove the President or
Deputy President from office in accordance with Article 145. Senators also are
Members of Parliament to which the President reports in accordance with Article 132.
The other level of co-ordination is that between the Senate and the County
Governments. We have recommended above that the County Assembly provides full
and regular reports to the Senate on a bi- annual basis and the Senate in turn
provides the County Assembly with feedback on a bi-annual basis.

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8.7 INTERGOVERNMENTAL
RELATIONS AND
DISPUTE RESOLUTION
8.7.1 Intergovernmental
Dispute Resolution
Article 189 of the Constitution
provides that both Governments
shall exercise their powers in a
manner that respects the
functional and institutional
integrity of each level. It further
states that Governments shall
make every reasonable effort to
settle disputes by alternative
dispute resolution mechanisms,
including negotiation, mediation
and arbitration.
The potential areas of conflict
include the exercise of functions
that lie within the concurrent
jurisdiction, allocation of
resources and national
government intervention and
suspension of a County
Government. Agreements
between Governments that
exclude key partners could also
strain relations. The signatories
to such agreements also need to
be determined. Shared
resources, if not properly
managed, could occasion inter-
county conflicts and conversely,
well managed joint activities
between Counties will enhance
mutual co-operation. At the intra
county level also, poor
governance and a leadership disconnected from the citizenry could fuel
discontentment.
Ethiopia: Traditional And Legal Methods Of Conflict
Management

The violent conflicts between the Gumuz and Amhara
from 1992-1994 associated with historical, cultural and
land encroachment factors were resolved by integrating
traditional and legal methods of conflict management.
Regional authorities including joint peace committees
were tasked with responsibilities for developing joint
activities whilst the police from both states ensured that
law and order were observed. The lower peace
committees which included elders and administrative
authorities of both communities played a reconciliation
role
Nigeria: Unresolved Conflicts

The Jos Plateau State conflicts between Muslim and
Christian communities total 13,500 since 1999. Various
Committees of Inquiries set up have been unable to
provide a resolution of the conflict. A Truth and
Reconciliation model has been proposed by some
commentators as an alternative dispute resolution
mechanism.
Canada: Resolution of Disputes Arising From
Concurrent Functions

Federal-provincial agreements sometimes seek to
coordinate the exercise of shared jurisdictions. The
immigration agreements signed between the federal
government and each of the provinces are good examples
of this. These offer an asymmetrical sharing of provincial
and federal responsibilities in an area of explicit
concurrent competencies. For example, the Canada-
Quebec Accord Relating to Immigration and Temporary
Admission of Aliens gives Quebec funds and responsibility
for settlement services and a greater say in planning and
attracting business immigrants. Quebec also has the
responsibility for the actual selection of immigrants and
the control over settlement services. The Federal
Government determines national standards and objectives
relating to immigration and is responsible for the
admission of all immigrants and the admission and control
of aliens

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Article 191 provides that where a conflict between National and County legislation in
respect of matters falling within the concurrent jurisdiction of both levels of
government, National legislation prevails over County legislation if the National
legislation applies uniformly throughout Kenya or the national legislation is aimed at
preventing unreasonable action by a County that is prejudicial to the economic,
health or security interests of Kenya or another County or impedes the
implementation of national economic policy.
Effective dispute resolution mechanisms must be developed through transparent and
consultative processes which demonstrate fairness, flexibility, affordability and
efficiency. There are three possible categories of dispute settlement. Firstly, there is
the facilitative processes in which an outsider (an intervener) assists the parties to
make decisions but is not able to make binding decisions for them, for example,
mediation. Secondly, there are advisory processes in which the intervener assists the
parties to make decisions and where they are unable to do so, uses his or her
expertise to guide and advise them on possible outcomes. Thirdly, there are
determinative processes in which the intervener investigates the case, hears the
evidence and arguments on all sides, and makes a decision that is final and binding,
for example, arbitration.
It is imperative that there be early identification of and intervention in conflicts. The
initial use of low cost, internal, informal processes is also preferred and systems
designed so that processes are used in an incremental and systematic way. Protocols
and codes of conduct can provide guidance as to the appropriate role and conduct of
the respective parties. Each organ of state could have a dispute resolution manager
who is a facilitator of the dispute resolution process and would not act as judge or
umpire. Such an official would be obliged to liaise with the counterpart in the other
relevant organ. Both would crystallize the issues and agree on the nature and
parameters of the dispute.
8.7.2 Comparative Experiences of Dispute Resolution Mechanisms in
Africa
8.7.2.1 Views Expressed by Kenyans
Establish an inter-county committee to deal with disputes arising
Create a national arbitration organ
Establish a specialized ministry at the national level to deal with conflict
resolution.
Empower the Village Council of Elders
Devolve judicial functions to the lower level
Establish special courts to resolve conflicts and establish peace-conflict
committees
Boundaries of Counties be clarified

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The restructured Provincial Administration to play a role in dispute resolution
1. The intergovernmental relations legislation makes provisions for, inter alia,
a. The National Arbitration Council and dispute resolution managers
and functions assigned
b. Protocols and codes of
conduct
c. Counties submit draft
legislation to the Kenya Law
Reform Commission in
order to assure that conflict
of laws on account of
concurrency of functions is
detected early and
appropriate measures taken
to avert the potential
conflict
2. There be specification of
signatories to National and County
Government agreements and
designation of agreements that
must be approved by Cabinet,
those that are concluded on the basis of a signature by the Cabinet Secretary
responsible for intergovernmental affairs and those where the signature of the
sector Cabinet Secretary will suffice
3. A Requirement that cities and municipalities be included as signatories to
agreements concluded through municipal infrastructure programmes
4. Require that for purposes of co-ordination of the exercise of concurrent
jurisdiction, both Governments define and agree upon their respective roles
and responsibilities
5. Require that Counties enter into horizontal agreements that address trans-
border issues and clarify signatories
6. Provide for the granting of incentives for Counties to undertake joint projects
7. Provide that Counties enact legislation to guide the conclusion of inter-county
agreements
8. Devolve some functions of the Judiciary to the sub county units by
recognising appropriate existing traditional/local mechanisms and institutions
for dispute resolution subject to the Constitution
8.8 INTERVENTION AND SUSPENSION OF A COUNTY GOVERNMENT
Article 190 provides that National Government may intervene if a County
Government is unable to perform its functions or fails to operate a financial
management system that complies with the requirements prescribed by national
France: Intervention and Suspension of
Local Government

In France, the Regional Chamber of
Accounts ensures that the budget of the
Department is balanced. In the event of
either default in preparation of budget or
failure to remedy a defective budget, the
National Government intervenes through
the Prefect. If the President of the General
Council is completely unable to manage the
budget and secure the necessary majority
in Council decision-making, the Minister for
Local Government can, upon the advice of
the Prefect, dissolve the General Council
and call for fresh elections.

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legislation. Article 192 provides for suspension of a County Government upon
recommendations of an Independent Commission, the concurrence of the President
and authority of Senate. Article 192 provides for suspension of County Government
by reason of emergency arising out of internal conflict or wars or in any other
exceptional circumstances. This Article is applicable only in exceptional
circumstances when public security and order are threatened. During the County
consultations, many Kenyans expressed the fear that the National Government and
its Executive could abuse the powers under these provisions.
Intervention by National Government must therefore only occur in the most clear
circumstances. The interim arrangement during the suspension must also reflect the
oversight role of the National Executive and at the same time provide assurance to
the affected County that the object and principles of devolved government are not
eroded.
The constitutional
status of the Counties
must be jealously
guarded and
intervention and
particularly suspension
should only occur in the
most clear of
circumstances and the
functions of the affected
County must be
restored at the earliest
opportunity
The Senate to establish
a transition commission
(ad hoc Committee)
National Government undertakes the County functions
1. With regard to intervention in Counties by National Government, the Council
of Counties be consulted and involved in decision-making
2. A Commission be established to run the affairs of the County during its
suspension. Its composition includes as Chair, the Governor of a well-
managed County nominated by the Council of Counties, approved by Senate
and appointed by the President, representatives of the County Public Service
Commission (PSC), representatives of the Association of County Governments.
OUTSTANDING ISSUES

An intergovernmental relations legislation to guide
the Cooperative Government and provide for the
establishment of the relevant institutions. These
include the National and County Coordinating
Council, sectoral forums/working groups, The
National Arbitration Council, protocols and codes of
conduct, the Council of Counties, the Intra-County
Forum, the Inter Municipality Forum, the Association
of Municipal Authorities, County Working Groups
and the Village Council of Elders
An intergovernmental/co-operative National
Government ministry and corresponding County
departments/ministries to co-ordinate matters of
intergovernmental co-operation

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8.9 CONCLUSIONS
In conclusion, our principal recommendation is that Intergovernmental Relations Bill
should be enacted before the operationalization of the County Governments. The
intergovernmental institutions identified should be assigned clear statutory mandates
and concrete decision-making roles. South Africas Intergovernmental Relations
Framework Act, 2005 provides some useful guidelines. The Act sets up various
intergovernmental structures for consultation as discussed above.
Where the implementation of a policy, the exercise of a statutory power, the
performance of a statutory function or the provision of a service depends on the
participation of organs of state in different governments, those organs of state must
co-ordinate their actions in such a manner as may be appropriate or required in the
circumstances, and may do so by entering into an implementation protocol. The
implementation protocol must identify any challenges in carrying out the task
allocated and describe the roles and responsibilities of each organ in implementing
the policy, exercising the statutory power, performing the statutory function or
providing the service. The Act also provides for the settlement of intergovernmental
disputes but excludes settlement of specific intergovernmental disputes in respect of
which other national legislation provides resolution mechanisms and procedures.

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9 CITIZEN PARTICIPATION AND PROTECTION OF
MINORITIES AND MARGINALISED GROUPS
9.1 INTRODUCTION
This part of the Interim Report by the Taskforce on Devolved Government seeks to
present a conceptual framework upon which citizen participation ought to be
understood and the underlying good practices in the context of implementing
devolution and devolved governance as provided for in the Constitution.
This is done through presentation of integrated meanings, experiences and practices
of citizen participation as a core element of democratic governance in devolved
systems. The County is seen as a developmental governance unit thus the discussion,
analysis and policy proposes postulated here are benchmarked by the need to locate
service delivery as both the rationale for and the content of citizen participation at
any level of government.
The framework is underpinned by sections that provide overviews on good
governance implications of citizen participation, the corresponding strategic
objectives of citizen empowerment and operational modalities of citizen involvement
in public affairs. This is what provides the nexus between participation and
protection of marginalised groups in society. Additionally, the presentation is
complemented by infusion of best practises comparative studies and experiences,
and, most critical, the provisions of the Constitution and views gathered from the
Kenyan public that form the basis of derivation. Thus the resultant policy and
legislative recommendations embedded in sections of this part of the Taskforce
Report.
This part therefore contains wholesome sections on the conceptualisation, discussion,
analyses and proposals on citizen participation ingredients, and inclusion and
protection of minorities and marginalised groups; the resultant operational
imperatives represented by the section on communication and devolved governance,
with emphasis on augmenting transparent and accountable governance through
continuing engagement of the citizens in civic education on all facets of governmental
systems, especially the devolved system. The main aim, as stated in the body of this
section is to continuously evolve a graduated culture of responsible citizens and
accountable government.
9.2 CONCEPT OF INTEGRATED CITIZEN PARTICIPATION
This section of the Interim Report seeks to bring out, in sufficient detail, an
integrated meaning and understanding of citizen participation as a core element of a
democratic developmental County as provided for in the Constitution. But most
important it seeks to locate service delivery as both the rationale for and the core
ingredient for citizen participation at any level of government. It also seeks to provide

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a conceptual overview of the good governance implications of citizen participation,
the corresponding strategic objectives of citizen empowerment and operational
modalities of direct citizen involvement in public affairs with a view to underscoring
its cross-cutting importance for good governance in sustainable societies. But most
important the section seeks to demonstrate the crosscutting character of citizen
participation as an essential element in democratic and social development of
modern societies. Closer details are envisaged in an overarching policy framework
and corresponding statutory spin-offs from the recommendations that are embedded
in this section of the Task Force Report.
The past two or so decades have been the scene of an increasing devolutionary
pressure across the continent and, by extension, affecting a large number of countries
worldwide. Kenya has not been an exception. Right at the core of its key pressure
point, is the imperative of more direct citizen participation. Although the political
build-up of this pressure constitute a highly heterogeneous process, proceeding to
different degrees of decentralization and following different political rationales for
citizen engagement in matters of public administration, citizen participation remains
a cross-cutting concern, the operationalization of which should, at best, find
unmediated expression in as many statutory provisions as may be required for a
successful implementation of Constitutional provisions of a devolved system of
government.
With the new Constitution, Kenyans are beginning to see themselves not only as
sovereign citizens, enjoying a rich and broadened Bill of Rights, but more particularly
as free people constructing their destinies within the framework of a Constitutional
dispensation characterized by a much deeper and more disciplined understanding of
democracy. Through the lenses of the new Constitution direct citizen participation, as
enshrined in the supreme law of the land (Article 1. (1) (2) (4)), consultations with
Kenyans reveal that it is now anchored solidly in a value proposition and principle of
governance (Articles: 10. (2) (a), (b), the operationalization of which will make a
significant difference in the democratic development of the Kenyan society.
The Constitution marks a turning point in Kenyas long history of both nation
building and democratization of its state sector. The two mutually reinforcing
processes are anchored on normative pillars of: subsidiarity, patriotism, solidarity
and sovereignty of citizenship. Together and in a complementary manner, they define
the extent to which devolution will require the involvement of an active citizenship
with the capacity and democratic will to build a viable nation state, ministering the
social development interests of a harmonious society.
During the public consultations Kenyans of different walks of life may have resorted
to different ways of expressing their desire to exercise the right of participation as
citizens, particularly within the context of the new devolved system of governance.

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But common to all that they said to the Task Force regarding their basic desire to
become real public citizens through participation, is the unmistakable pursuit for
engagement in autonomous spaces of participation; spaces that offer greater scope
for reconfiguring hitherto skewed power relations and the possibility of extending
democratic practices beyond manipulation by authorities. In this particular regard,
Kenyans are unanimous in their uncompromising demand for citizen participation
away from sham involvement in invited spaces that are merely opened up by the state
sector to non-state actors for cosmetic endorsement of predetermined government
policies. This demand is borne out of real experiences with actual unitary
governmental schemes of ersatz mechanisms that are designed to pass for citizen
participation. Most of them still remember, with great disquiet, how Poverty
Reduction Strategy Papers (PRSP) merely increased their hope for real citizen
participation without bringing them anywhere near real participation in public
affairs.
The new Constitution builds on a rich and long struggle for citizen participation in
public process. At its core is the transformative agenda for democratic citizenship, as
an approach to citizen empowerment, which is increasingly becoming a vital element
of democratic theory and practice all over the world. Inspired by the spirit of the
African Charter on popular participation in development and transformation, the
basic principles underlying the practice of stakeholder engagement informs the on-
going discourse on the management of sustainable societies. As a central principle of
public policy-making, it presupposes that all levels and functions of government
should seek to build citizen and stakeholder involvement into the respective policy
making processes and activities. This means that if public participation is to be
meaningful and effective, citizens have to be involved in the design and rolling out of
the entailed process in order to guarantee optimal democratic ownership of the
outcomes.
Kenyans, in their large numbers, appreciate the fact that the main aim of devolution
is to bring public services closer to the people. But most important to engage them in
shaping their destinies in a manner that resonates richly with their democratic will
and social development needs. It is against this background that public participation
in governance has been received with near euphoric optimism and, by that same
token, acquires the necessary prominence as it informs the main thrust of devolution.
9.3 BASIC ELEMENTS OF CITIZEN PARTICIPATION
9.3.1 Citizen Participation as a Right
With the enlargement of the Bill of Rights, as one of the transformative pillars of the
new Constitution and the attendant deepening of the reach of subsidiarity beyond its
cosmetic limits, Kenyans have been keen to turn the page and begin the long journey
towards a more progressive relationship with different levels of government. Broadly,

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they share the belief that this can only come about as a result of: the historic
broadening the strategic objectives and the institutional strengthening of the
normative wirings of sovereignty of citizenship; keeping alive of the promises of a
devolved developmental state; and being ready to subvert the typical spaces of
invitation, that have been used by oppressive governmental systems to promote a
false sense of participation under conditions that have never allowed for the
construction of politically and economically sustainable societies. A great majority of
Kenyans aver that it is time for the major deficient and non-meaningful forms of
participation to give way to increased accountability, transparency and equity-
enhancing solidarity. The optimism is shared across ethnic and party-political divides
and by that same token forms the basis for driving the necessary consensus around
broadly accepted sites, modalities and policy framework/statutory requirements for
direct citizen involvement in decision making.
The democratic limits and normative deficiency of solely relying on technocratic and
bureaucratic monopoly of decision making are no longer an issue for any meaningful
debate.
The main Article in the Rio Declaration on Environment and Development 88for
instance enshrines public participation in its 27 principles. Principle 10, in particular,
states that environmental issues are best handled with participation of all concerned
citizens, at the relevant levels social organization. A rights based approach to citizen
participation requires that modalities be built into all decision making processes,
including budgeting, environmental management, development project management
etc. in order to enable citizens not only to enjoy the accruing benefits but, more
importantly, to own the whole gamut of social development agenda and process.
Whereas some of the modalities will require formal and statutory procedures at both
the County and sub-County levels others will require broad policy frameworks or
organic legislations by parliament that provide broad guidelines on citizen
participation. Depending, of course, on the distribution of governmental functions
between the national and county governments, the full import of citizen participation
can only be realized if ordinary people in the counties and sub-counties can engage
these devolved levels of government in both policy making and implementation.
Whether or not the platforms of their participation be monthly public Forums (at
sub-County level), citizen monitoring and evaluation systems, public hearings,
quarterly Revenue Expenditure Forums (at the County Level), procurement oversight
committees ( at County and sub-County levels), social budget Forums (County and
sub-County levels), environmental management Committee (at all levels from the
County down to the location), citizen driven County procurement oversight
committees etc., - the entailed citizen implementation must derive their
institutional legitimacy and normative authority from statutory and binding policy
commitment to the imperative of citizen participation at all levels of government.

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Their mandate and powers should be protected in statutes, with operational
procedures sufficiently detailed in the implementation program. Ideally they should
be tagged on to more specified service delivery jurisdictions and not turned into all-
purpose instruments and platforms for manipulation by more organized but less
democratic forces within civil society. Experience in South Africa has shown that the
few formal and statutory spaces designated for civic engagement are usually hogged
by more organized CSO, leaving individual citizens and less formally organized
sections of society excluded from participation. Yet, as far as the need for impacting
change is concerned, it is the activities of less organized, more activist oriented actors
who have registered the most impressive successes; with impacts that have brought
the most significant changes in governance in South Africa. It is therefore imperative
that such informal forms of citizen participation and their unique opportunities for
participation are equally protected by relevant policy frameworks and subsidiary
legislations.
The composition of such citizen participation formations are more effective when
they draw upon civic commitments of ordinary citizens, representative interests of
County Assembly members, technical County government officers, CSO
representatives, religious and development partners. To this particular extent citizen
participation formations should be demographically representative and socially
inclusive of all stakeholders and thus should cut across youth, women, retired
professionals, marginalized groups and faith based organizations who offer more
civic value-based contributions to upholding community interests. This is the surest
way to enhance coordination, joint learning and knowledge sharing among citizens,
and also to enhance quality and coherence in policy advocacy. With the increased
impact of action research and better communication it is expected that uptake by
policy makers will be guaranteed
All over the world, citizen participation is generally a costly affair. This is more
particularly so if the task of enhancing the capacity of the communities and
government personnel in embracing and utilizing participatory approaches remains a
core pillar of good governance. Financial support for citizen participation should
therefore be a collaborative effort between all the key stakeholders, with public
resource playing a key role. In this particular respect, the County governments should
partner with the private sector and citizens in funding citizen participation. This
should be done as a matter of obligation rather than as a means of insinuating a
controlling hand into the domain of citizen participation.
The operational modalities of the above citizen participation formations should be
dictated by the service delivery needs, sectoral/functional jurisdictions and political
auspiciousness obtaining at different levels of governance in the Counties. Going by
the experiences in South Africa, general purpose citizen platforms (as suggested by a
section of the public consultations and submissions) are appropriate for particular

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civic actions e.g., petition, public hearings, generating issues for social budgeting etc.
This should not to obscure the specificity of service delivery needs of the County
populations and, therefore, the necessary focus with which citizen intervention
should be designed and carried out on particular civic platforms. With the increasing
specialization of operational focus among CSOs, mushrooming of interest groups
among the ordinary citizens and single-issue based advocacy interventions increasing
in appeal, it is imperative that such spaces are preserved for self-articulation of
interest groups and thus catered for in both policy framework and legislation.
9.3.2 Public Participation as a Function of Transparency in Democratic
Governance
The right of access to information and the transparency that comes with it underpins
two distinctive yet mutually reinforcing principles of democratic governance:
publicity of actions and transparency of public administration. It is the strategic
conflation of these into a unified scheme of democratic social relations that completes
the circle of citizen participation and participatory/open government.
Experiences in countries like post-apartheid South Africa have produced examples
from which conclusions can be drawn to the effect that even with a plethora of formal
mechanisms of citizen participation, the bias in favour of groups with the capacity to
self-organize as opposed to those that are unable to do so continues to militate
against the possibility of public authorities benefitting from such mechanisms by
understanding and responding to the social development needs of the poor.
In our not-very-unique case the imperative of transparency in institutions and
processes of governance are believed to provide for:
Autonomous spaces and open opportunities for stakeholder engagement in
public processes in general and in decision making in particular,
Predictable instances and opportunities for enforcing and realizing the full
expression of democratic citizenship of sovereign peoples,
Direct and indirect effects and impacts of citizen inputs into consensus
building in decision making
Information rich and knowledge-bearing citizenry with the capacity to
contribute to and questions policy decisions.
In all matters relating to economic and political governance, the Constitution in
Article 201 (a) requires unqualified openness and unlimited accountability. Kenyans
have been pressing for the actualization of the underlying imperative for many years.
In the process they have demonstrated unmistakable interest in having the relevant
provisions of the Constitution implemented with the necessary fealty to the spirit of
an open society. There is no doubt that realizing this will require appropriate
legislative measures that will place unhindered freedom of information and related
citizens rights and obligations squarely within the ambit of democratic openness.

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Best practices are available all around us and can be the best sources of ideas that
should feed into an appropriate legislation which must take into serious account our
unique history and culture.
Participation enhances transparency of interaction in the public domain through such
facilities as notice board announcements of job opportunities , recruitments
information; social/participatory budgeting; opening the budget process to citizen
participation; procurement transparency and oversight committees (part of which
will be the requirement that procurement records, including a detailed
contractor/supplier profiles be made available to the public); monthly revenue and
expenditure Report; quarterly development status reports; bi-annual monitoring
report prepared through the Sub-County Citizen Forums; County and Sub-County
Assemblies ; monthly public revenue and expenditure forums; and quarterly face-to-
face question and answer sessions with the governor and senator of each County. The
legislative elements of each of these instruments and platforms for citizen
participation may vary from sector to sector and from County to County. But the
overarching national legislation should spell out the normative and ideological
foundation of the right of citizens to take part in the making of all decisions that affect
their lives. From this the counties can take cue and come up with statutory measure
that are not only consistent with relevant legislations at the national level but those
that reflect the dynamic of citizen participation needs at that level. Whatever the case
such elements must include: equality before the law, solidarity among citizens,
accountability of public authorities and citizens, transparency, publicity of actions
and intentions of the state/all its organs and state as an instrument of a balance of
social forces in society, serving it rather than lording it on the stakeholders.
The above citizen participation platforms should be complemented by less formal
(but protected by either policy frameworks and statutory promulgations) citizen
participation formations like neighbourhood associations/forums, regular or
occasional Town Hall meetings, Information bulletins, notice boards, suggestion
boxes, web based and mobile phone (SMS) service delivery monitoring, Platforms
like Fix-my-Street in England, HUDUMA in Kenya and others. In addition
communication laws will need to be changed to support and accord with the popular
need for TV, FM and community radio stations ministering to the information and
communication needs of the counties and their communities.
9.3.3 Public Participation as an Imperative of Influencing Decision-Making
The process and act of influencing decision making by citizens presupposes that:
Rule-making behavior by public authorities is subject to inputs by citizens for
purposes of popular ownership and free-willed fealty to the outcomes of the
decision making in question,

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It is mandatory as a means of improving the legitimacy and binding authority
of decision making and its outcomes,
It removes the formalistic trappings of democracy and essentially disciplines
the practice of it and thereby making it a way of life rather an imposition by
whims of a patrimonial state.
It promotes and protects inclusivity in the public life of a community rendering
it the only viable basis of democratic citizenship built on the imperative of
equity.
All this is important for eventual democratic ownership of the effects of decisions
made under the above conditions. Experience with LAPDEF in general and CDF and
LATF in particular has taught Kenyans that participation is meaningless if the rules
of engagement are unilaterally made away from popular participation and mutual
accountability. Kenyans, speaking through the consultative forums, have been very
clear that they would like to have more say in how they are governed, both within the
realm of the economy and politics. And they are ready to benefit from relevant
experiences in societies where citizen participation in decision making has borne
social development fruits.
The Constitution provides for the participation of the public in the exercise of the
powers of the state and in making decisions through indirect and direct involvement
of the people in the process of policy making (Article 232. (d) and participation in the
legislative business of the National Assembly, Senate and County Assemblies.
(Article 118 (1) (a) (b), 124.(1) (b), 124. (4) (c), 196. (1) (a) (b). The point is to fortify
the entailed Constitutional gains through practically consistent legislations.
Some, if not many, of the civic intervention opportunities and sites of citizen
participation referred to above will address a good number of the democratic
challenges facing the people of Kenya in their incremental struggle to make national
and County governments more responsive to the social development needs of all
sections of society.
9.3.4 Access to Information and the Right to Effective Democratic
Citizenship
Everywhere in the country and at every level of government citizens want to know
what is happening around them; all with a view to wanting to manage their lives in a
fairly predictable political-economic environment. They seek both general and
practical knowledge about their proximate wider environment in order to equip
themselves with all that it takes for effective participation in public affairs. This, they
averred, should include unhindered access to the minutes of the various committees
of County Assembly, Executive committee meetings Spectator sport, reserved for
passive subjects, in the way of the limitations of representational engagement with
politics and the economy, will no longer do for them. They said as much during the

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consultations with the entailed message continues to reverberate throughout the
media.
Enforcement of democratic citizenship, their messages convey, requires informed
engagement with public policy and effective citizen action. This is based on the
assumption that:
Information is power and power to influence public policy decisions is the
right of every citizen
Every citizen is, therefore, entitled to easy access to and practical use of
relevant information for society to benefit from his/her participation in its
affairs
For effective participation to benefit society it must rely on accessible, timely,
accurate and user-friendly information.
The spirit behind the above social demand is faithfully captured in the Constitution,
particularly where it states, with all the necessary clarity, that every citizen has the
right of access to information held by the State (in the Bill of Rights, Article 35).
In this particular respect it will be necessary to revisit the provisions of the Freedom
of Information Act with a view to synchronizing its legal mechanisms with the spirit
of the expanded Bill of rights in the new Constitution. The stalled bill seems to enjoy
the support of civil society in general and a wide variety of interest groups in
particular. What remains to be done is for a renewed attention and concerted effort to
be directed at first-tracking its legislation, particularly given that it is one of the most
important pillars of citizen participation.
9.3.5 Citizen Participation and Meaningful Dialogue
It is only through open and appropriate deliberative processes that the legitimacy of
decision making will justify binding policy action. This requires the creation of
autonomous democratic spaces in which citizens can freely process their social
demands and, as a necessary consequence, engage public authorities in making sure
that the outcomes of such processes resonate deeply with their social development
needs. This should end up turning them into architects of their own destinies and
makers of their own history.
On how to ensure that the quality of popular dialogue remains high and meaningful,
the Kenyan public have made suggestions that range from open neighbourhood
forums, town Hall meetings, participatory budgeting to technology assisted/web-
based monitoring and discussion platforms. New theoretical developments as well as
practical implications, based on best practices elsewhere in the world, should be the
basis upon which any legislative anchoring of these democratic innovations will need
to rest.

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9.3.6 Citizen Participation as a Condition for Accountability
With widespread impunity continuing to afflict Kenyas body politic and the
management of the economy, many Kenyans have welcomed the new Constitution
with even greater expectations in respect to better opportunities for their
empowerment against the preponderance of state patrimonialism. Most of them are
optimistic that, armed with the Constitutional provision on accountability of public
authority they are just a short distance away from slaying the legendary dragon of
impunity.
Ordinarily accountability is often used synonymously with such allied concepts
as responsibility, answerability, blameworthiness, liability, and other terms
associated with the expectation of account-giving. As a significant aspect of good
governance, it has been central to discussions pertaining to decision-making
challenges in the public sector, non-profit and private spheres. In public sector
leadership roles, accountability amounts to the acknowledgment and assumption of
responsibility for actions, decisions, policies and outcomes. This includes
the administration, governance, and implementation within the scope of the role
encompassing the obligation to own up, report, explain and be answerable for the
consequences. In order for accountability to be real, effective enforcement
mechanisms must accompany the policy frameworks, statutory provisions and by-
laws that will be required to anchor them within the domains of binding rules the
infringement of which will attract deterrent actions by legitimate authorities on
behalf of the people not for tendentious political competition.
9.3.7 Citizen Participation for Transparency
Freedom of information is the cornerstone to good governance, meaningful
participation, and efficiency-enhancing transparency. It is, therefore, recognized by a
broad majority of the people as a fundamental human right without which the claim
on and the exercise of democratic citizenry and upholding of democratic values of
equality and justice remain a pipedream. Sustainable democracy, therefore, depends
on a knowledgeable citizenry whose access to a range of information enables it to
participate more fully in public life, help determine priorities for public spending,
receives equal access to justice, and holds its public officials accountable and for that
matter more responsive to the social development needs of the entire population.
Inadequate access to public information allows corruption to flourish and breeds
unequal access to public resources; and since politics, at its most basic level, is about
resource distribution decisions and, for that matter, the red meat of politics, lack of
transparency in public affairs is, therefore, a recipe for the dark forces in society to
insinuate their malign influence over the development of appropriate social capital.
The benefits of such social capital can only be maximized if it is sustained by efficient

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management of knowledge as a conflated product of free, accessible, accurate and
timely information.
As an imperative of good governance transparency is provided for in the Constitution
by the requirement for County Assemblies to conduct their business in open manner
and to hold sittings of its committees in public and to facilitate public participation
and involvement of citizens (Article 196) (1) (a) (b) in matters of public interest.
Budget literacy, not only among the elite stakeholders in the urban areas, is a key
ingredient of effective citizen participation. Access to budget information and citizen
involvement in all stages of budget process will only be useful if the budget
information is appropriately disaggregated to ensure maximum transparency with
regard to cost per sector, County, sub County and ward basis. Only then can citizens
appreciate their direct involvement in a process that makes meaning for them.
9.3.8 Citizen Participation as a Normative Basis of Equity
Equity in its prescriptive usage and as the philosophical underpinning of democratic
governance has a close connection with ethics, morality and justice, in general, and
distributive justice in particular. From antiquity onward and for all societies on earth,
equality has been considered a constitutive feature of justice. The majority of
Kenyans agree. Throughout our history, first as colonized and secondly as a
decolonized society, emancipatory movements have used the language of justice to
pillory certain inequalities between different sections of our society. But what exactly
is the connection between equality and justice, i.e., what kind of role does equality
play in a theory and practice of justice? The role and correct account of equality,
understood as a critical issue of social justice, is itself a difficult philosophical
challenge; and one that hardly lends itself to easy understanding and measurement at
the level of outcomes, but rather as a condition that is best appraised at the level of
social inputs, such as access to all the basic social and economic services (e.g.,
education, health etc). This explains, to a large extent, neo-liberal attempts to reduce
poverty have failed nearly everywhere in the developing world. It is because the use of
poverty index and not the causes of poverty which remain concealed behind all
manner of marginalization: poor economic and social infrastructure (poor roads, lack
of good schools, no electricity, no clean water, no health facilities. In an attempt to
clarify this, philosophers have defended a wide variety of principles and conceptions
of equality, many of which are reflected in the Constitution that Kenyans have
adopted. The presumption of equality is a prima facie principle of equal distribution
for all goods politically suited for the process of public distribution. In the domain of
political justice, all members of a given society, taken together as a collective body,
have to decide democratically on the fair distribution of social goods. Applied to our
political situation and domain, the presumption of equality requires that everyone,
regardless of tribal, gender, religious, generational and regional differences, should

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get an equal share
in the distribution
of public resources
including, public
infrastructures,
employment
opportunities and
capacities (Article
10. (2)(b).
If the voices of
every section of
society, but more
particularly from
the marginalized in
society, could be
heard loud and, for
a meaningful
dialogue to ensure
and for a binding
consensus to be
driven leading to a
re-balancing of
power relations in
society in favour
equitable
distribution of
public resources
around the
principles of
solidarity, conflicts
in society would be
reduced to
manageable levels.
Research in
Scandinavia and
parts of Latin
America have established a positive correlation between popular participation, equity
and a reduction of conflicts. If citizen participation is embedded in the spirit and
practice of devolution the nation building and state-democratization challenges
Kenya has been grappling with will be things of the past.

COUNTY VISIT SUBMISSIONS ON PARTICIPATION

Develop a Legislation e.g. Participatory Act
Establish Sub County Citizens Forum (SCCF) to scrutinize county
project planning, budgeting and implementation
Forums, neighbourhood associations and Focus Group Discussions
(FDGs)
Community Based Monitoring System (CBMS)
Ward Citizen Forums (WCF) to enable citizen engagement with the
right to access all official records for sectoral and county
departments.
Establish information Centres to access all county information
County magazines/monthly newsletters/Information bulletins
Establish Commission that will ensure development
Create Ombudsman and Public complaints standing Committee
Service delivery should be community driven through committees
e.g. County Education Committee
Organize public Barazas
Establish a TV station and FM radio stations
Broadcast the County Assembly proceedings to the members of the
public
Notice boards/suggestion boxes/websites
SWAP, service charters and (social networking facilities )
County calendar of events so that citizenry is aware and can
participate
Community Development Officer who will do planning, monitoring,
act as a convener, secretary and information disseminator
Continuous liaison between the County, constituencies, locations
sub-locations and at village level
Social accountability reports
Regular consultations with children/guardians to identify needy
children, drug and sexual abuse and to include children in children
issue prioritization
The Senator should have quarterly meet the people forums to
listen to the people/State of the County address
Legislate designated days when Senator spends times listening to
the needs and concerns of County residents
The Governor to have face-to-face forums with the public to answer
their questions
There should be continuous civic education to sensitize public on the
importance of their involvement in public affairs.
Start at the micro-level by encouraging participation in school and
church committees
Citizens Assemblies at sub-county level
Customer care desks in each county

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9.4 PROCESS AND MODALITIES OF PUBLIC PARTICIPATION
Depending on status, role and station in the life of a given society and given the right
to choose in which participatory process and modality one would like to be part of,
citizens are more than likely to come up with a wide range of propositions. Whereas
some may prefer to be part of a social movement, militantly challenging the
ideological rationale of policies driving our political economy, others may choose to
take part in a public Baraza, listening to the local chief announcing security measures
to be undertaken by the Provincial administration. There are, therefore, as many
citizen participation processes and modalities as there are different sections of a
given social order and corresponding social development interests. In the Kenyan
case, it is hoped that the political and cultural dynamics which are going to play out in
the various counties will provide unique circumstances on the basis of which different
actors from civil society and the state sector will find their location and operational
modalities. Whereas it will be necessary if not prudent for a few overarching policy
frameworks and legislative measures governing the operations and management of
citizen participation spaces to come at the national level, it is advisable that ample
room be reserved for the Counties and sub-Counties to live up to the distinctiveness
afforded them by the Constitution; by being allowed to involve their communities in
the design of the architecture of citizen participation that will accord with local civic
and governance needs and challenges. A grand architecture designed from the top is
the reason why Kenyans have been engaged in a protracted struggle for re-
negotiation of a better social contract with themselves and the state.
Finally and most important, citizen engagement sites, modalities and processes like
Social Budgeting framework, Community libraries, Capacity building will need to be
disaggregated along functional and sectoral lines for appropriate statutory
institutionalization to follow. The critical elements of both policy framework and
sector-sensitive legislative measures, particularly those that need to be mainstreamed
in the various sector- and function-based statutory provisions, e.g., in the area of
environmental protection, social budgeting, health related areas of civic intervention
etc., should draw upon the knowledge of the host sector and inputs from a rich
expertise within the relevant non-profit sector. But most important is the broader
normative and framework elements of citizen participation that needs to be captured
in a broader national policy framework from which relevant organic laws addressing
the imperative of citizen participation should cascade into different legislative
measures. Such a frame work should lay the legal infrastructure for citizen
participation and bring out strategic, administrative and operational elements of the
underlying Constitutional provision. Its main elements should include: subsidiarity
as an overarching principle, dynamism of popular jurisdiction, autonomy of
individual and collective action, solidarity with others and sovereignty of the citizen.
The rest of legislations should be mainstreamed into relevant sectoral jurisdictions,

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elaborating with the necessary faithfulness to the spirit and letter of the policy
framework and the provisions of the Organic legislations that and subsidiary
legislations at the County level.
9.5 PROTECTION AND INCLUSION OF THE MARGINALISED COMMUNITIES AND
GROUPS
The Constitution of Kenya 2010 (the Constitution) provides a legal framework for the
recognition and protection of the rights of the minorities and the marginalised
communities and groups (herein after referred to as the marginalised). The
Constitution introduces a rights based approach to development, that is, an approach
where everyone is entitled to development as a right and not as a favour from the
state.
The Constitution affirms that the sovereign power belongs to the people of Kenya and
can be exercised in the two levels of government i.e. the National and County
governments.89 The Constitution under Chapter IV, the Bill of Rights, provides a
framework for affirmative action that ensures that minorities and the marginalised
are brought up to speed in social economic and cultural development.
This chapter of the paper is intended to inform laws and policies that are going to be
formulated and enacted on devolution that have a bearing on protection and
participation of minorities and marginalised groups and communities . Part one will
discuss the principles that inform the protection of marginalised groups and
communities. Part two of this section will focus on understanding the terminologies
used. Part three will discuss the problems faced by the marginalised groups. Part four
will identify the remedies provided under the Constitution and Part five will suggest
the required legal, policy and institutional measures. To enable us propose these
measures we shall give examples from other jurisdictions where applicable.
9.5.1 Principles for Protecting and Inclusion of Marginalised Groups
9.5.1.1 The Principles of Participation
The participation of marginalised groups and communities in the affairs of a state is
crucial in a democratic society. Indeed when the marginalised groups are involved in
decision making and implementation of laws and policies, they are able to influence
the governance of a state in manner that will promote the attainment of equity. Art.
10 of the Kenyan Constitution recognises public participation as a value that should
guide the interpretation and application of laws and policies in Kenya. However these
values must be made operational through established legal mechanisms and
institutions which will ensure effective participation of the marginalised in public life.
The institutions must exercise authority and responsibility to ensure that the
minority, marginalized groups and communities realise their Constitutional rights.

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To attain the principle of participation, states are expected to respect both the process
and outcome of decision making. Governmental agencies and independent
commission and offices should pursue an inclusive, transparent, and accountable
process of consultation in order to ensure that minorities and marginalised groups
and communities are catered for. There must be a monitoring and evaluation
mechanism that will ensure that the desired objectives are achieved.
9.5.1.2 The Affirmative Action Principle
Affirmative action has been defined as those actions appropriate to overcome the
effects of past or present practices, policies, or other barriers to equal employment
opportunity. 90
According to the United Sates Commission on Civil Rights,91 affirmative action is a
contemporary term that encompasses any measure, beyond simple termination of a
discriminatory practice, that permits the consideration of race, national origin, sex, or
disability, along with other criteria, and which is adopted to provide opportunities to
a class of qualified individuals who have either historically or actually been denied
those opportunities and/or to prevent the recurrence of discrimination in the future
Affirmative action can also be defined as public or private actions or programs which
provide or seek to provide opportunities or other benefits to persons on the basis of,
among other things, their membership in a specified group or groups. Affirmative
action is often used to denote a positive step taken, as well as more specifically to
denote, an attempt to reverse or mitigate past discrimination and historical
injustices.
Affirmative action is intended to address various objectives namely:
i. Remedy past discrimination
Affirmative action enables a state to relook at past discrimination meted against
marginalised groups. The intention is to erase the effects of past discrimination. This
is done by favouring the victims in a manner that will hasten their integration to the
mainstream society. The implementation is through programs that can benefit
particular individuals of a society or group that are marginalised. It can also be done
by addressing the marginalised group as a whole through reparation programs and
projects. In the former instance it can be done by employing individuals, providing
education scholarships, distributing business capital to individuals among other. On
the later, infrastructure such as roads, electricity supply, and water supply can be
used to target a group as a whole.
The Kenyan Constitution takes both the individual benefit approach and the whole
group approach. Under Art.56 individuals will be accorded education, employment
and appointment opportunities to individuals belonging to a minority group or
marginalized community and group. Under the same Article, communities are

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entitled as a group to benefits such as development of cultural values, languages and
practices, access to health services, infrastructure, water, and electricity among
others. Art 204 creates an equalization fund meant to provide basic services 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 nation, so far as possible.
The marginalized areas are supposed to be places where marginalized communities
exist as clarified by Art.204 (3) (b).
ii. Enhancing diversity.
A state will be able to grow with better values, peace and stability is diversity is
natured and appreciated. Affirmative action will help build a diverse and inclusive
society. It is therefore imperative to take deliberate measures such as favoured
consideration of companies of marginalised groups in public procurement and
allocation of contracts, school admissions, and employment among others.
iii. Increasing the political power of the marginalised.
Affirmative action can increase representation and political power of the
marginalised. This is done by creating special electoral units that will increase the
representation by marginalised groups especially the minorities. On the other hand
political appointments can be done to fill the gaps where marginalised groups may
not get a chance through popular vote. It is however important to come up with a
system that will ensure that those appointed through political parties are persons that
are desired by the respective groups.
9.5.2 Definition of Terms
9.5.2.1 Marginalised Community
The Constitution defines marginalised community as:
92

a. a community that, because of its relatively small population or for any other
reason, has been unable to fully participate in the integrated social and
economic life of Kenya as a whole;
b. a traditional community that, out of a need or desire to preserve its unique
culture and identity from assimilation, has remained outside the integrated
social and economic life of Kenya as a whole;
c. an indigenous community that has retained and maintained a traditional
lifestyle and livelihood based on a hunter or gatherer economy; or
d. pastoral persons and communities, whether they are
i. nomadic; or
ii. a settled community that, because of its relative geographic isolation,
has experienced only marginal participation in the integrated social and
economic life of Kenya as a whole;
Of the above definitions, the terms that demands further explanation is indigenous
community. This term requires critical analysis because it is not only controversial
but its use at international level has been opposed by African countries. The
argument has been that everybody in Africa is indigenous and thus there should be

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no need for having special protection of other people in the name of indigenous
persons.
9.5.2.2 What does Indigenous People or Community mean?
There is no one single definition of indigenous people. In fact attempts to have one
definition have been resisted. According to the African Commission on Human and
Peoples Rights (ACHPR), the danger of a strict definition is that many governments
may use a strict definition as an excuse for not recognizing indigenous peoples within
their territories.93 According to the Special Rapporteur on Situation of Human
Rights and Fundamental Freedoms;94
There is no internationally agreed upon definition of indigenous peoples.
Different states adopt different definitions in terms of their particular contexts
and circumstances. The term indigenous is frequently used interchangeably
with other terms, such as aboriginal, native, original, first nations or
else tribal or other similar concepts. In some states local terms might be
commonly used that are not easily translatable. In still other countries, no
formal designation exists even though there might be general agreement that
such populations do in fact inhabit certain areas of the country. And in still
other countries, the existence of indigenous groups is denied altogether and
therefore their definition becomes even more problematic, yet the absence of
an international definition should not prevent constructive action in the
promotion and protection of the human rights of indigenous peoples.
Under the existing international legal framework , there is no definition of indigenous
people or communities. But there are indicative characteristics that can define such a
group. According to the ILO Convention No. 169 Indigenous and Tribal Peoples
Convention, the following characteristics define indigenous peoples;95
Traditional life styles;
Culture and way of life different from the other segments of the national
population, e.g. in their ways of making a living, language, customs, etc.;
Own social organization and political institutions; and
Living in historical continuity in a certain area, or before others invaded or
came to the area.
Art.1 (2) of the ILO Convention provides that self-identification as indigenous or
tribal shall be regarded as a fundamental criterion for determining the groups. It is
important thus to recognise that in the Kenyan context, there is likely to be a
challenge dealing with indigenous people because the list is endless if self-
identification is to be taken as one of the criteria.
There is fear that self-identification will be used as a means of taking advantage of
Constitutional provisions while in the real sense a group is not indigenous. This can
be sorted by requiring that such group must not be the dominant in society. There are
factors that can point to the concept of non-dominance. They are;
96

Numerical inferiority;
Their ways of life and social organisation; and

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Their distinctive cultures.
It is acknowledged however that a group might be the majority but victims of
marginalisation by another group with a smaller population. In most cases,
indigenous groups are referred to as minority because in many instances there are the
numerically inferior group. However as discussed below there is a difference between
indigenous and minority
groups.
Indeed, the ACHPR has
recognized a number of
misconceptions in Africa about
indigenous rights. The first
misconception is that, to
protect the rights of indigenous
peoples would be to give
special rights to some ethnic
groups over and above the
rights of all other groups
within a state
97
. Since certain
groups have been
discriminated upon based on
their unique circumstances,
then a call to protect them is
not discriminatory but an
affirmative measure to address
injustices.
The second misconception the
Commission identified closely
related to the first
misconception is that the term
indigenous is not applicable in
Africa as all Africans are
indigenous
98
.
According to the Commission:
When some particular
marginalized groups use the term indigenous to describe their situation, they
use the modern analytical form of the concept (which does not merely focus on
aboriginality) in an attempt to draw attention to and alleviate the particular
form of discrimination they suffer from
99
.
Professor Stavenhagen
100
reinforces this point of view by stating that the definition
of indigenous people;
COUNTY VISIT SUBMISSIONS ON CRITERIA FOR DETERMINING
MARGINALISED GROUPS
less populated areas, poverty index, historical injustice, infrastructure,
baseline survey ,lack of services
Marginalised are children with special needs, women, girls and
handicapped people, displaced people, sick, aged and youth ,disabled,
unemployed, People Living With HIV/AIDS,
Can be identified by tribe, age, religion, education, widows,
ownership, elderly
Per capita income, and physical environment can be used. Objective
way of determining marginalized groups be formulated
Minorities be determined by population size, level of drought and
poverty.
Single mothers and religious groups be considered as marginalised
groups
Development level, ASALs areas, socio-economic status, census,
history of leadership, literacy level, elderliness
They are marginalised if they have no leaders in parastatals from their
county
They can be identified through the indigenous people framework
Census approach use social and economic indicators for identifying
marginalized groups or use census figures to identify marginalized
groups
Use the previous census to identify them or conduct another census
specifically for these groups and use of tribal census to determine
minorities
Marginalised groups are communities not allowed education during
colonial period and are academically now marginalized.

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From a human rights perspective is not who came first but the shared
experiences of dispossession and marginalization. The term indigenous is not
intended to create a special class of citizens, but rather to address historical
and present-day injustices and inequalities.
The third misconception identified by ACHPR is that talking about indigenous rights
will lead to tribalism and ethnic conflicts. According to the ACHPR:
101

Giving recognition to all groups, respecting their differences and allowing
them all to flourish in a truly democratic spirit does not lead to conflict, it
prevents conflict. What rather creates conflict is that certain dominant groups
force through a sort of unity that only reflects the perspectives and interests
of certain powerful groups within a given state, and which seeks to prevent
weaker marginalized groups from voicing their particular concerns and
perspectives. Or put another way: conflicts do not arise because people
demand their rights but because their rights are violated.
There are three major and crucial differences between minority rights and indigenous
rights. First, minority rights are formulated as individual rights whereas indigenous
rights are collective rights
102
. Second, unlike minorities, the indigenous groups are
characterized by their strong cultural bond to their lands, without which they would
not exist as a cultural entity and their lives would be in great danger
103
. Third, while
minorities are identified based on numerical inferiority within a state, the indigenous
identify themselves in regard to particular territorial land whether within a country
or even beyond the borders of a state.104 Indeed, they claim their rights based on
social factors that existed even before the state was established.
The UN Rapporteurs report identified indigenous people in Kenya to be the minority
hunter-gatherers and pastoralists who live mostly in the arid and semi-arid lands,
such as the Elmolo, Maasai , Endorois, Borana, Gabra, Pokot, Samburu, Turkana, and
Somali, and hunter-gatherer communities whose livelihoods remain connected to the
forest, such as the Awer (Boni), Ogiek, Sengwer, or Yaaku. Other groups such as the
Nubians consider themselves as a minority that has also been marginalized, but in an
urban context.
9.5.2.3 Marginalised Groups
Article 260 of the Constitution defines a marginalized group as a group of people
who, because of laws or practices before, on, or after the effective date, were or are
disadvantaged by discrimination on one or more of the grounds in Article 27 (4); i.e.
any ground, including race, sex, pregnancy, marital status, health status, ethnic or
social origin, colour, age, disability, religion, conscience, belief, culture, dress,
language or birth. In this case women, youth and people living with disabilities are
considered marginalised groups in Kenya.
There are various considerations that must be observed when determining
marginalised groups and communities. These are:

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Historical injustices
a. Poverty index
b. Adverse climatic conditions
c. Baseline data
d. Landlessness/ squatters
e. Infrastructure development
f. Economic status
g. Special interest groupings e.g. persons with disabilities

9.5.2.4 Minorities
There is generally no single agreed definition of minorities in international law. A
1977 study made for the United Nations defines minorities as;
A group numerically inferior to the rest of the population of a State, in a non-
dominant position, whose members--being nationals of the State being
nationals of the State--possess ethnic, religious or linguistic characteristics
differing from those of the rest of the population and show, if only implicitly, a
sense of solidarity, directed towards preserving their culture, traditions,
religion or language
105
.
According to Minority Rights Group International,106 minorities are disadvantaged
ethnic, national, religious, linguistic or cultural groups who are smaller in number
than the rest of the population and who may wish to maintain and develop their
identity.
Poland define an ethnic or national minority as a group of Polish citizens who wish to
preserve its language, culture, tradition and national (or ethnic) consciousness and
who remains in minority in relation to the rest of society
107
. To qualify as ethnic or
national minority once ancestors must have been living in the present Polish
territory for over a hundred (100) years. This definition is controversial because it
omits new cases of minorities or future minorities. In a number of counties, the
citizens emphasised that to be a minority in a particular county, you must have been
born there. Still others insisted that the County should be your ancestral land.
However this must be weighed against the need to avoid polarization and maintain
national unity.
The above creates a problem of exogenous and endogenous minority. There is need to
deal with the issues of endogenous and exogenous minorities. According to Professor
Van der Baken endogenous and exogenous minorities are defined as follows:
Endogenous minorities are those ethnic groups that have traditionally lived in
the territory of the region. Exogenous minorities are ethnic groups that have
migrated to the region in the recent past and are endogenous in another
region. We could also call them internal migrants.
108

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In most of the Counties the proposal was to afford protection in the County
Government only to those who originate from the County. People were opposed to the
protection of economic migrants. There was insistence that for a group to receive
privileges accorded to minority and marginalised groups and community in a County,
they must have substantial ties with that County.
There are two ways of defining minorities. First are minorities defined best on
national demographics and second is minority defined using demographics within
the geographical boundaries of a county. The former will accord protection to
national minorities while the later will afford protection to even those who are
national majority if they find themselves in a situation where they are a minority in a
particular county.
The specific rights of persons belonging to national or ethnic, religious or linguistic
minorities include the right to enjoy their own culture, to practise their own religion,
to use their own language, to establish their own associations, to participate in
national affairs etc. These rights may be exercised by persons belonging to minorities
individually as well as in community with other members of their group.
There are the various factors are that must be considered in determining minority
groups:
a. Poverty index
b. Numerical inferiority
c. Climatic conditions
d. Baseline data
e. Infrastructure development
f. Economic status
g. Historical Injustices
h. Special groupings e.g. persons living with disabilities
i. Language
j. Religion
k. Age

9.5.3 Problems Faced by the Minorities and Marginalised Groups &
Communities
9.5.3.1 Problems faced by the Minority and Marginalised Communities
The first and foremost, the major problems faced by minority and indigenous people
are loss of land rights, historical land injustices, exploitation of resources without
their participation or accruing the benefits. There are various examples of these
problems in the Kenyan context. In the Endorois case109 before the ACHPR, the
Complainants (Endorois) alleged violations resulting from the displacement of the
Endorois community, an indigenous community, from their ancestral lands, the
failure to adequately compensate them for the loss of their property, the disruption of

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the community's pastoral enterprise and violations of the right to practise their
religion and culture, as well as the overall process of development of the Endorois
people. Such cases are replicated in other communities like the Ogiek and Sengwer
who are under constant evictions from their ancestral lands in the desire to protect
forests.
Probably the old and most cited land problems involve the Maasai and Samburu.
Land problems among the Maasai dates back to pre-colonial period when the Maasai
signed the treaty with the British Crown known as the Anglo-Maasai Treaty in 1904.
This treaty was violated leading to the misappropriation of Maasai land. A case filed
by the Maasai was dismissed on technicalities.110 Other cases involving the Ogiek
have been instituted in Kenyan courts with no success.
111

As shown in the Endorois case, successive governments have been perpetrating the
colonial policies of depriving the minority/ indigenous communities land in the
pretext that they are protecting the environment and natural resources. Lack of
recognition of land rights has advanced the further marginalization and
impoverishment of these communities.
The second problem is the government biased development policies. In Kenya,
development has been projected as a favour that is only extended to those who have
the numbers to influence those in power to extend development to them in exchange
for votes. As a result of such policies, the problems now faced by the minority
/marginalized groups are, soaring unemployment, weak presence in the public sector,
violation of language rights and the lack of socio- economic development.
Marginalized minorities are often left out in economic development. The most
underdeveloped areas are where minorities are situated. This is in line with the past
government policies that perpetrated votes based/charity based, favour based
approach to development. Often you will hear citizens in Turkana, North Eastern, the
Sengwer, Ogiek etc complaining of being treated as second class citizens. These
groups are always faced with extreme starvation and instead of adopting long term
policies to address their plight the government has focused on short term relief
programs.
The third problem is lack political representation, recognition and participation. By
virtue of their numbers, the minority and marginalized communities are unable to
succeed having one of their representatives garner an elective office. There is also no
meaningful participation in civil service and public offices where decision making is
made. This is partly because they are not educated or have been utterly ignored.
The fourth problem is the denial of cultural rights. The minority indigenous groups
have suffered loss of culture as a result of the domination by the other communities.
The main objective of the colonial government was to erase the identity of smaller

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community and thus get them swallowed by the majority groups. The case of Sengwer
is a good example.
Kiptum and Odhiambo state:
I agree then the recommendation reported in the prescription that wherever
possible the Dorobo should become members of and be absorbed into larger
tribe which they have most affinity.112 In view of the complications that would
arise having Cherangany officially residing in two different Districts and
under two separate Provinces, he (the District Commissioner) would
reluctantly agree to the move (of Cherangany from Marakwet to West Suk)
out of sympathy with the District Commissioner Tambach, Forest Preservation
Policy, and provided that the Cherangany in question would agree to
surrender their tribal identity.....
113

With this kind of policy loss of identify, language and culture has been systematically
meted against the minority/indigenous groups.
The fifth problem is that of insecurity. The areas occupied by the minority and
marginalised communities have serious insecurity problems. Security will remain
the greatest challenge in facilitating the economic development of the marginalized
areas.
The UN Rapporteur concluded on indigenous people that their livelihoods and
cultures have been traditionally discriminated against and their lack of legal
recognition and empowerment reflects their social, political and economic
marginalization.
114
The Rapporteur further stated as follows:
The principal human rights issues they face relate to the loss and environmental
degradation of their land, traditional forests and natural resources, as a result of
dispossession in colonial times and in the post-independence period. In recent
decades, inappropriate development and conservationist policies have
aggravated the violation of their economic, social and cultural rights.
The lack of social and health services in indigenous communities is especially hard
on women and children, who suffer gender inequalities and discrimination,
especially with respect to property rights, and harmful traditional practices that
are also conducive to the increasing spread of HIV/AIDS amongst these
communities.
The minority groups are often excluded in accessing employment opportunities. In a
country that largely relies on numerical strengths, the majority groups domineer over
the minority. The latter groups have no access to education which inhibits their
ability to qualify for jobs.
9.5.3.2 Problems faced by Youth, women and disabled as marginalised groups
i. Being subjected to cultural beliefs and practices that subordinate
them.
ii. Exclusion from leadership and decision making.

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iii. L
ack of access
to property.
iv. D
iscriminative
laws and
policies.
v. L
ack of
affirmative
action.
vi. H
uman
trafficking and
prostitution
especially on
the part of
women and
young girls.
vii. V
iolence
especially
against
women and
disabled.
viii. R
estriction of
the freedom of
movement
and
expression
especially
among the
disabled.
ix. I
nequality in
attaining
citizenship
especially
among
women.

This Policy
interrogates
how the
devolved
COUNTY VISIT SUBMISSION
Awareness creation through civic education i.e. educate people on
matters of marginalizationby providinginformation on minorities and
marginalized members of community be made available at chiefs level and
displayed in public. Sensitisation of the marginalised communities themselves
to understand that they have equal rightsand setting up information
Centre's.
Publish regular reports
Public Participation & Communicationincluding participation in
development plans and inviting the public to make submissions through
open Barazas and town hall meetings. Public to have access to county
assembly debate proceedings
Regular free and fair elections
Representation e.g. Executive members must be from all areas of county,
women be included and youth be considered. Executive positions be
advertised and running mate of governor be of opposite gender. Education
should not be a basis for leadership position-marginalizes those that have
not had similar educational opportunities and those that competitively vie for
seats be considered for special seats if they are unsuccessful
County govt. should have one third positions reserved for the marginalized in
the county.(e.g Gender, people living with HIV/AIDS/disabled)
Proper representation of minorities and the marginalized in all sectors of the
government
County to form disability committee and include disabled in each county
committee and legislate for their protection
Gender consideration in county governance
Minority be given own wards
Marginalised groups be determined after elections based on communities
who have not elected any of their own to positions
Marginalised groups be determined after elections based on communities
who have not elected any of their own to positions
Disabled be involved in all county committees of which 5% of funds be given
to disabilities
Affirmative action for marginalized groups through legislation of affirmative
action in county civil service and hiring of people with disabilities as well as a
database for marginalized groups. Protection of youth through tender and
managerial positions reserved for youth
Infrastructure e.g set up an Electoral College and establish an office or body
at county level to deal with marginalised groups and set up an office and a
resource and care Centre for people with special needs/challenges. County
government should build schools for the disabled in each district.
Infrastructure be based on full implementation of the Disability Act and
engendering the legislation as a way of ensuring majority rights.
The Human Rights Commission should establish offices at the county level
Establish a Public participation and Oversight Committee
ID be given to marginalized (e.g. Endorois and pastoralists) who do not have
them.
Friendly environment to cater for disable people Chiefs and church elders
to recognise marginalised groups
Political parties cannot protect minority rights (bias)
Women friendly hours of business
Respect for minority rights
Funds: Access to equalization fund and poverty index and rates be used to
determine allocation of Equalization funds. In addition the marginalised to
determine how their funds are to be used. The poor and marginalised should
be supported
Fund be set aside for the elderly
Marginalised groups be granted equal opportunities

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system will ensure that the marginalised communities and groups plus minorities are
going to be protected and involved in governance.
9.5.4 Solutions Provided Under the New Constitution
9.5.4.1 Devolution as a Solution
It is argued that Devolution presents the best opportunity for dealing with
marginalization. According to one author commenting on the Indian system states
thus:
Federalism is no doubt, the useful answer for managing conflicts and
accommodating the diverging interests and to establish peace and order in a
pluralist democracy. Federalism is not only an effective tool for managing
conflicts but it is widely considered as an effective instrument for protecting
the democratic rights of people in the decision making process of different tiers
of the polity.
115

Though Devolution has been projected as the best solution, Professor Keating
outlines the criticisms of federalism in a divided society. He states thus:
116

a. Where the federated or devolved units represent distinct nationalities, they
will regard themselves as sovereign and self-determining, and their leaders will
merely use the institutions as a way of expanding their powers and
undermining the state. From this it follows, ironically, that federalism will only
work in homogeneous societies (where we might think that it is not needed);
b. Since the territory of a federated unit will never correspond perfectly to a
nationality group, that federalism or devolution will merely create new
discontented minorities within the new units, leading to recurrent challenges
and divisions.
In turn Prof. Keating concludes that federalism or devolution in itself thus does not
represent a definitive solution to conflicts of nationality. It may be a contribution to
accommodation, but only in the right conditions and by paying attention to issues of
institutional design.
117
Through this policy Kenya has the opportunity of adopting
laws, regulations, policies and strategies that will give the right conditions to
devolution in Kenya. It gives Kenya the best opportunity to design the right
institutions that protect the interest of the minorities, the youth, and persons with
disability, women and other marginalized groups within Counties. Failure to do this
will give birth to just another level of discrimination.
According to Prof. Keating, for one to design the right institutions you have to
understand the problems that devolution was established to solve.118 The overall
objective of devolution in Kenya as indicated in the Constitution was to diffuse power
from the centre to the counties. The Constitution of Kenya lists the specific
objectives of devolution to be among others;
119

a. to foster national unity by recognizing diversity;

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b. to give powers of self-governance to the people and enhance the participation
of the people in the exercise of the powers of the State and in making decisions
affecting them;
c. to recognize the right of communities to manage their own affairs and to
further their development;
d. to protect and promote the interests and rights of minorities and marginalized
communities; and
e. to ensure equitable sharing of national and local resources throughout Kenya.
In cases such as Federalism further decentralization is encouraged to bring
governance closer to the people. It is noted that:
Decentralization no doubt, makes the federal system more democratically and
politically balanced and establishes new institutional arrangements for
political participation of different sections of people in a society having
diversity and multiculturalism.
120

He adds:
Decentralization facilitate to articulate the choices of these different groups
and protect their cultural identity and this in turn helps to enhance the trust
and sense of ownership of the people in a multi-cultural society.
121

Further decentralization enables the people to demand and government to deliver
better services to the people and to redress social economic inequalities. Further
decentralization will take governance closer to the people and enable them to audit
and hold the government more accountable.
In India, 73rd and 74th Constitutional Amendments created Rural Local
Governments and Urban Local Governments respectively. These Local Authorities
paved way for devolution of powers and resources further within the various States.
In the Kenyan context, when the debate was raging, a number of communities were
opposed to the number of Counties, the boundaries and the composition. In Busia
County, the Sabaot were opposed to the constitution because they had been grouped
together with a large population of the Luhya community. In Elgeyo-Marakwet
County, the Marakwets were opposed to them being grouped with the Keiyos because
of past marginalisation. In Baringo County, many minority groups such as the
Pokots, Njemps, Endorois and Arror feared the other dominant Tugen communities.
In Migori County the Kuria were opposed to being grouped together with the Luo
majority. In Garissa County the abdalla clan of Ijara did not want to be grouped
together with the dominant Abudwak and Aulihan clans. In our county consultation,
these communities insisted that there has to be decentralized units known as sub-
county
9.5.4.2 Other Constitutional Solutions
The Kenyan Constitution 2010 introduces the concept of rights based approach to
development. Development is no longer a gift but a right which all citizens regardless
of their status are entitled. The Constitution recognizes the fact that there are certain

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vulnerable members of the society who need specific attention and protection. The
Constitution thus makes provisions on affirmative action to remedy the injustices
meted on the marginalized groups and communities.
To start with, Article 10 (2) of the Constitution lists national values and principles of
governance to include, human dignity, equity, social justice, inclusiveness, equality,
human rights, non-discrimination and protection of the marginalized. As a matter of
principle therefore, the people of Kenya agreed to protect the marginalized. Indeed
Article21 (3) provides that all State organs and all public officers have the duty to
address the needs of vulnerable groups within society, including women, older
members of society, persons with disabilities, children, youth, members of minority
or marginalised communities, and members of particular ethnic, religious or cultural
communities.
Article 27 (4) outlaws any state discrimination on the basis of race, sex, pregnancy,
marital status, health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth. Article 56 provides that the State
shall put in place affirmative action programmes designed to ensure that minorities
and marginalised groups:
a. participate and are represented in governance and other spheres of life;
b. are provided special opportunities in educational and economic fields;
c. are provided special opportunities for access to employment;
d. develop their cultural values, languages and practices; and
e. have reasonable access to water, health services and infrastructure.
There is need for making these provisions operational in the devolved government.
In terms of political representation, Article 91. (1) (e) requires every political party to
respect the right of all persons to participate in the political process, including
minorities and marginalized groups. Article 100 requires Parliament to enact
legislation to promote the representation in Parliament of, women, persons with
disabilities, youth, ethnic and other minorities and marginalised communities. These
positions are expected to be filled by the twelve nominees as provided for under
Article 97 (c) of the Constitution.
The Objects of devolution under Art.174 (e) of the Constitution is to protect and
promote the interests and rights of minorities and marginalised communities. Article
177 (1) (c) provides that County Assembly should consists of the number of members
of marginalised groups, including persons with disabilities and the youth, prescribed
by an Act of Parliament. Under Article 197 (2) (a) and (b) Parliament is required to
enact legislation to ensure that the community and cultural diversity of a County is
reflected in its County Assembly and County Executive Committee and prescribe
mechanisms to protect minorities within counties.
Protection of the marginalized groups is also reflected in the principles governing
public finance. Article 200 (b) (iii) provides that the public finance system shall

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promote an equitable society, and in particular that the expenditure shall promote
the equitable development of the country, including by making special provision for
marginalized groups and areas. To that effect, Article 204 (2) obliges the National
government to use the Equalisation Fund only to provide basic services including
water, roads, health facilities 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 nation, so far as possible. Under Article 204 (3) (b) the
National government may use the Equalisation Fund either directly, or indirectly
through conditional grants to Counties in which marginalised communities exist.
Under Article 216 (4) relating to the functions of the Commission on Revenue
Allocation, the Commission is required to determine, publish and regularly review a
policy in which it sets out the criteria by which to identify the marginalised areas for
purposes of Article 204 (2).
9.5.5 Recommended Legal, Policy and Institutional Interventions
9.5.5.1 Further Decentralization
Under the Kenyan Constitution, there is opportunity for further decentralization of
County functions and services. It is an opportunity thus for Kenya to think about the
best mechanism of further decentralization. How can this be done:
The urban centres to be created under the Constitution shall be avenues for
further decentralization. In the urban areas, there should be nominees for the
minority and marginalized groups. Kenya can also come up with village
councils.
Further smaller rural governments can be created to facilitate services to be
taken closer to the people. The boundaries of these authorities should take
cognizance of the interest minority and marginalized communities so that
some authorities are curved specifically for such interest groups.
9.5.5.2 Mandatory County Strategic Plans
This paper opines that through legislation, a County must come up with a County
development plan/strategic plan which shall be the basis for resource allocation. Such
a development/strategic plan shall be prepared using bottom up approach where the
views are collected from each local administrative unit. The concerns of women,
youth, disabled, marginalized communities, children, and minorities should be
captured in the County plan. The plan should be debated and adopted in the County
Assembly. The Constitution states that it is the duty of the County Assembly to
receive and approve plans and policies for(a) the management and exploitation of
the Countys resources; and (b) the development and management of its
infrastructure and institutions. The approval of these plans should also involve the
Senator, members of National Assembly from the County. But it is the County
government that will take responsibility and leadership in the process. This will be

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useful in ensuring that the County government will not ignore any region, group or
community in the process of development. This will also shield the population from
the short term interests of politicians.
As per Article 220 of the Constitution, parliament must enact legislation that
provides the structure of the development plans and budgets of Counties, the time the
plans and budgets of the Counties shall be tabled in the County Assemblies, and the
form and manner of consultation between the National and County governments in
the process of preparing plans and budgets. These are issues that shall also be
addressed from the planning and financing perspective. It suffices to note at this
juncture that the plans must be consultative.
The people have the right to determine the priorities and strategies for economic and
social development. This includes the right to determine the health, housing,
infrastructure, and other economic and social programs and, to the extent possible, to
deliver these through their participation in County government.
To ensure that these plans are catering for marginalized groups and communities,
there must be a binding monitoring and evaluation mechanism that will ensure that
the County is protecting and involving the minority and marginalized groups in
development.
9.5.5.3 Participation in Governance and Public Service
As per the Constitution, devolution legislation can reaffirm the requirement that
minorities and marginalized in the decision making and power structures. That
means that they must be adequately represented in the County Assembly and the
Executive. Their participation should include involvement in public service. These are
policy positions that County governments must report on. The legislation should
create timelines within which County government shall report on the number of
appointments made to ensure that minorities, marginalized groups and communities
are adequately involved.
The structures and decision-making processes of the counties should be made
transparent and accessible in order to encourage the participation of marginalized
groups and communities.
9.5.5.4 Community Interests, Delimitation of County Wards and
Decentralisation Units
The demarcation of the wards should ensure that minority groups are considered.
Arguments for the demarcation are based on the practice of ethnically based
devolution. Indeed, the Kenyan devolution is ethnically based. Most of the Counties
are inhabited by one ethnic majority. Although this gives national stability by making
these communities determine their own social economic development and culture, it
creates other minorities. It is for this reason that the ethnic minorities in certain

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counties have raised concerns. These Counties are like the issues of Kuria in Migori
County, the Sabaot in Bungoma County, the Sengwer/Cherangany in
ElgeyoMarakwet and Trans Nzoia Counties, the Pokot in Baringo County etc.
The challenge of official recognition of ethnicity is that with the benefit that come
with it, some groups that did not originally see themselves as separate ethnic units
may begin to see themselves as such. This is the case in places like Nyanza where the
Suba community may begin to see themselves as separate group from the other Luos.
However, this is inevitable because we have already recognized ethnically based
Counties.
The recognition of ethnic or racial minorities is not new. Ethiopian Constitution
created ethnic based federalism with nine states namely: Tigray, Afar, Amhara,
Oromia, Somali, Benishangul-Gumuz, the State of the Southern Nations,
Nationalities and Peoples, Gambella and Harar. Of the nine states, the Southern State
is multi-ethnic with most of the communities made up of small population. According
to one author:
... there are no less than 56 different ethnic groups (or - to use the official
vernacular -nations, nationalities and peoples) in the region. Some of these
groups have more than one million members (such as the Sidama and the
Gurage), but most are very small, each amounting to no more than some tens
of thousands of people. Despite the existence of some larger groups, it is
important to note that not a single group has the numerical majority
.122
Article 45 (1) of the Southern States Constitution provides a four-tier internal
administrative structure: the regional/state level, the Zonal/Special Wereda, the
Wereda level and finally the Kebele level.123 The Zones are ethnically based
territorial entity. This guarantees the representation of all ethnic groups in the
regional assembly. In the same breath, Kenya should create wards and
decentralisation units that will cater for the interest of the minorities. In Ethiopian
case there is distinction between the endogenous and exogenous minorities.
Similar territories have been created for minorities in Canada, India and Bosnia
Herzegovina where a special district called Brcko was created.
In other countries, minorities are afforded protection through non-territorial
federalism. This is meant to extend public support and privileges on a personal and
non-territorial basis to members of a specific community. This is the case in the
protection of German-speaking Belgians in Belgium.
It is therefore necessary that where minorities are concentrated territorially, single
member wards may provide sufficient minority representation.

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9.5.5.5 Kenya National Human Rights and Equality Commission (KNHREC) and
County Institutions
The Commission should be the institution that monitors the participation and
protection of marginalised groups and communities in the devolved system of
governance. Since these are shared institutions they must ensure that their offices
and functions are decentralised to all corners of the country to monitor
implementation on issues relating the protection of marginalised groups. In the Sixth
Schedule of the Constitution, the Kenya National Commission on Human Rights and
the National Commission on Gender and Development are merged and now form the
interim Kenya National Human Rights and Equality Commission. In the transition
period therefore, the KNHREC should reorganise its operations in such a manner
that entitlements of minorities and marginalised groups are secured.
The County government should designate one Executive member to deal with issues
of marginalised groups and communities. This member will report periodically to the
County Assembly Committee in charge of marginalised groups and communities on
efforts that the government is putting to address the concerns of the marginalised
groups and communities.
The County should establish advisory, Monitoring or consultative body within
appropriate institutional frameworks to serve as channels for dialogue between
County government and the marginalised. Such body might also include special
purpose Committees for addressing such issues as housing, land, education,
language, and culture. The composition of such body should reflect their purpose and
contribute to more effective communication and advancement of the marginaliseds
interests. The body will thus advise the County government through the designated
County Executive.
County governments and the commission should undertake an inventory of existing
marginalised groups to obtain a clear understanding of their current status and how
to help realise their rights
The Kenya Human Rights and Equality Commission should come up with National
Equal Opportunities Policy to guide the whole country on the issues of protecting
marginalised groups. Further, Article 59 (4) and (5) in the Bill of Rights prescribes
that Parliament shall enact legislation that may restructure KNHREC into additional
commissions. In effecting this clause it is imperative that new look Gender
Commission, Commission on Minorities and Marginalised, Commission on Persons
with Disabilities and that of Youth are established. In the alternative, fully fledged
departments of fused additional commissions are specifically established to cater for
minorities and marginalised groups.
Finally, in the restructuring of the current national Executive to accord with the
Constitution, and where line ministries will be downsized to a maximum of 24 from

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the existing 40, it is imperative that Parliament creates institutions that will secure
and nurture interests of minorities and marginalised groups, including women,
youth, children, persons with disabilities and senior citizens. This principle should
likewise apply in the establishment and functioning of the County Executive.
9.5.5.6 County Government as a Facilitator of Minority and Marginalised
Groups Rights
a) Indigenous peoples are entitled to maintain their distinct identities, to
maintain their languages, and to maintain the integrity of their relationship
with their traditional lands. Thus, developmental acts by the County
governments must not violate these rights. County governments should
facilitate the attainment of such rights. What are the policies on education in
mother tongue? In this case, Counties are key in so far as pre-primary
education is concerned as being at the centre in relation to national legislation
and policies.
124
Protection of marginalized groups from harmful and repugnant
cultural beliefs and practices.
b) Changing attitudes and perception of members of the public regarding
marginalized groups through such acts as the naming of streets and towns
using minority languages.
c) Counties investing in culture and cultural activities with special consideration
for the minorities. The County government is empowered by the Constitution
and allocated the resources to manage minority issues under Schedule IV of
the Constitution.
d) There must be a deliberate effort to allow the minority and the marginalized to
access employment opportunities in the County.
e) Protection of intellectual property of minority and marginalized communities,
including sciences, technologies, medicines, and knowledge of flora and fauna
as well as arts and performances.
Legislative Proposals
a) Minorities and Marginalized Communities Act
It will define minorities and marginalized communities
Consolidate the benefits accorded to these groups
Provide legal and institutional mechanisms for realizing the benefits outlined
in Art.56 and 204 of the Constitution.
b) The legislations relating to Marginalized groups shall be provided for in the
respective laws e.g. Persons with Disability Act of 2003, and international
conventions ratified by Kenya such as the Convention on the Elimination of All
Forms of Discrimination (CEDA) and the UN Convention on the Rights of
Persons with Disabilities. Other legislation on youth can be enacted.
9.6 CONCLUSIONS
This foregoing unit has put public participation in perspective in reference to such
governance issues like transparency, accountability, decision-making and equity. The
unit also integrates issues of inclusivity for the marginalized and minority in the
context of public participation in a democracy, and unveils proposals for legal, policy
and institutional interventions. The next unit on communication and civic education

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summarizes the need for integration of communication and its offshoot, civic
education, into all facets of governance institutions. The presentation of civic
education covers the fundamental issue of integrated civic education as a key factor in
building a symbiotic culture of accountable government and responsive citizens.

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10 PUBLIC COMMUNICATION AND CIVIC EDUCATION IN
DEVOLVED GOVERNANCE
10.1 COMMUNICATION AND DEVOLVED GOVERNANCE
The centrality of communication to the promotion of good governance and citizens
participation is now an acceptable principle internationally. The role of
communication is more demonstrated in countries that observe the rule of law. In
such countries the principles of participation and respect of the basic rights of citizen
participation are regarded as key components of a democratic society.
In an environment of citizen participation in governance, genuine democracy is
understood as requiring more than the election of representatives to various
assemblies such as parliament, senate or local counties. Thus, over and above party
politics, democracy requires that people can make their wishes known in public and
require participation in debate about the type of society and particular process they
aspire to
125
.
It may be argued that the core of a democratic society is the presence of public debate
about the distribution and execution of power; to this extent therefore choices made
by the power holders are by way of public policy design scrutinized and contested
through public debates. Thus the absence of such provisions in different societies
seriously hinders democratic governance
126
.
The situation obtaining in Africa raises fundamental legal and policy questions on
what needs to be done in the communication and information sector so as to address
further concerns with regard to giving citizens greater access to formal levels of
expression, freedom and control of public information processes. The answer lies in
making public communication an integral part of democratic governance. This is
critical. People need to have access to the knowledge they require to have the
education to deal with that knowledge and be able to discuss issues in public among
themselves for purposes of genuine participation and exerting influence on issues
that are of their interest
127
.

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It is therefore imperative
from the start that both
the national and the
county governments must
embrace fully the central
roles of the
communication and
information in their
broader meanings. The
role of public
communication and
information need to be
seen and understood as
overarching to all
governmental activities
and interventions. In other
words, public
communication and
provisions of information
to citizens must be
integrated into national
and counties democratic
and development agenda.
This is critical in creating
the interface between the
various existing
communication structures
and channels such as the
media and their roles in
enhancing citizens
participation, feedback
and the medias role in
awareness creation, analysis, interpretation and continuous rationalization of
development issues nationally and at the county levels.
10.1.1 Communication, Information, Governance and Development
Communication and information are variables that are constantly needed by people
in a democratic society at all levels for purposes of governance and development. In
the context of democratic governance for example, the media as a communication
tool in a democratic society has an extremely broad institutional framework for
County Visit Submissions on Communication and
Civic Education - 1

County Government
Establishment of a county calendar of events
SMS of county news to public, open county days
Involve the public through the various fora in
prioritizing the development agenda
Through forums, neighbourhood associations,
Public Barazas to inform the County on key
development areas
Outreach frameworks, periodic budgets reviews and
newsletters
Communication and information sharing with feedback
both ways.
Introduction of customer care desks in all county
offices
Creation of interaction mechanisms from grassroots to
up in the counties
Involving the public in monitoring and evaluation of
county projects
Stakeholders forums on a quarterly basis in the
county inform the public and then ask questions
Grass roots committees at village level to relay
information forth and back
Development of websites, use fiber optic cable to
enhance ICT use in county governance
Participation:
Citizens participation be embedded in the legislation
An annual conference for county residents
Division representatives to disseminate information to
the population
Focus Group Discussions (FDGs).
Involve public in county strategic planning
Regular consultations with children to identify needy
children, drug and sexual abuse to include children in
children issue prioritization

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exercising the force of public
opinion as a way of imposing
checks and balances on the
government as a democratic
requirement
128
.
Similarly, citizens need a
number of key factors which
are both linked to the
intrinsic genuine democracy
and citizens participation,
such as reason,
responsibility, mutual
respect, access to
information, freedom of
expression and freedom of
conscience to be contextually
and correctly mediated by
proper and accurate
communication mechanism.
This is viewed as critical in
ensuring that citizens are
therefore able to use the
accurate, relevant, adequate
and appropriate information
available to them to make
correct and rational
decisions at individual,
collectively and at
governmental levels.
General communication and
provision of information is
recognized as critical
ingredient to the practice of
democracy. For example,
Ochilo et al have argued that
the media in Kenya has
continued to serve the ends of democracy through the facilitation of popular
participation of the citizens on public affairs and in its continuous struggle in opening
up political space and political transition together with other non-state actors within
the civil society
129
.
COUNTY VISIT SUBMISSIONS ON COMMUNICATION - 2

Accountability:
Open forum be established for accountability
Quarterly reports
Hold open budget days where the local population participates.
Safeguards to prevent misuse of funds
Have meetings after 4 months go round explaining to the local
people whats going on.
The public should create oversight institutions outside the ambit of
the county government.
Create ombudsman office in County
Field days for the county staff to meet their people for feed back
Have periodic questionnaires for the public to evaluate the
performance of the county government.
Give copies of budget expenditure to the public for easy monitoring
and evaluation
Opinion polls to gauge performance of the leaders
Continuous liaison between the county, constituencies, locations and
sub-locations and also at village level
County care centres/Public complaints office
Automation of county systems and other services
Establish and equip ICT resource centers
Public forum be held at beginning and end of year
Participatory budget process
There should be civic education to sensitive public on the importance
of their involvement in public affairs.
Maybe start at the micro-level by encouraging participation in school
and church committees
Communication and Information
that all counties establish TV and FM Community radio stations
establishment of newspapers or county magazines that will enhance
information flow and feedback to the people
creation of ICT centers and ICT training centers in all wards
creation of county Facebook and twitter accounts as well as county
websites
use of media for advocacy such as: promotion of social issues such
as health and culture
feedback between citizens and government to enhance citizen
participation
creation of development information networks
to promote grassroots interaction up to village levels
use of focus groups to discuss development issues and complex
taboo issues
creation of media and cultural centers in the counties
to promote the use of local theatre and drama for social integration
and peace building and reconciliation
to use the local media and community to provide development
information to the counties and also to explain development issues
at the county level
use the media at the counties for posting county events that seek
citizen participation
use mainstream media and community media for overall promotion
of development and awareness creation at the counties

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It is therefore our considered view that the county governments can benefit in using
the wider reach effectiveness of both the print and electronic media in sharing
extensively on various aspects of their governments. Such exchanges are critical in
enhancing peoples confidence and motivation to participate in various demands of
governance. This is supported by the existing empirical evidence indicating that
peoples participation in governance and decision making process can greatly be
improved through institutionalized and professionally structured communication
130
.
In this paper we take the position that all forms of development are intrinsically
linked to democratic governance and the existing political elasticity that allows full
participation of citizens in their government. In this case the national government
and the county governments, respectively.
The promotion of various forms of development activities and goals, in one way or
another will require the inclusion and full integration of communication and
information.
This is the context in which Hedebro has argued that the functions of the media is
critical in the mobilization of human resources, moulding, replacing old norms and at
the same time having the capacity to enhance human productivity as well as
increasing human labour efficiency. By way of professionally designed methods,
communications have the capacity to support various forms of development goals
and improvements
131
.
Of relevance is the fact that the proposed counties greater population are in the rural
areas. Many of them continue to live far apart due to their geographical locations and
infrastructural arrangements; that continue to separate them. In this context, it is
thus recommended that the counties embrace the role of the media as agents for
transmitting information and news needed to balance the knowledge gap and
stimulate the levels of interest and participation in specific counties and others
nationally
132
.
Similarly, scholars like Shramm
133
, Uche
134
, Lerner and others have argued that the
media have the ability to keep development agenda alive, internationally, nationally
and at the county levels given that a high degree of correlation does exist between
modernization goals and availability of media outlets.

This is the context in which the provisions of the current constitution should be
viewed. Article 33 (1) to (3) makes provision for the freedom of expression; Article
34(1) to (4) covers various aspects dealing with constitutional issues on the freedom
of the media; Article 35 (1) to (3) deals with access to information and Article 36 (1)
to (3) makes provision for issues relating to freedom of association.
Article 33 (1) provides that every person has the right to freedom of expression which
includes:

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freedom to seek, receive or impart information or ideas;
freedom of artistic creativity; and,
academic freedom and freedom of scientific research
135
.
Notwithstanding the above provisions, Article 33 (2) states that the right to freedom
of expression does not extend to the following:
propaganda for war
incitement to violence
hate speech; or
advocacy of hatred that may constitute ethnic incitement vilification of others
or incitement to cause harm; or is based on any ground of discrimination
specified or contemplated in Article 27 (4). And that in the exercise of the
rights to freedom of expression every person shall respect the rights and
reputation of others.
Matters relating to the centrality of information in the promotion of governance and
the principle of citizens participation has also been given further attention in the new
constitution under article 34 with regards to the key question of freedom of the
media. Article 34 (1) states that freedom and independence of electronic, print and all
other types of media is guaranteed, but does not extend to any expression specified in
Article 33(2).This Article provides that the state shall not:
exercise control over or interfere with any person engaged in broadcasting the
production or circulation of any publication or the dissemination of
information by any medium, or
penalize any person for any opinion or view or content of any broadcast,
publication or dissemination
broadcasting and other electronic media have freedom of establishment,
subject only to licensing procedures
are necessary to regulate the airwaves and other forms of signal distribution,
are independent of control by government political interests or commercial
interest. And that all state owned medial shall:
be free to determine independently the editorial contents of their broadcast or
other communications, be impartial
afford fair opportunity for the presentation of views and dissenting opinions
Furthermore, part (5) of this Article provides that parliament shall enact legislation
that provides for the establishment of a body, which shall:-
be independent of control by government, political interests or commercial
interests,
reflect the interests of all sections of the society,

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set media standards and regulate and monitor compliance with those
standards.
The Constitution has also made provisions on the core issues relating to the question
of access to information. Under Article 35(1) to (3) the key provisions are:
that every citizen has the right of access to:-
information held by state,
information held by another person and required for the exercise or protection
of any right or fundamental freedom
and that every person has the right to correction or deletion of misleading
information that affects the person
the state shall publish and publicize any important information affecting the
nation
136
.
Using the above broad constitutional provisions as entry points, we then asked the
public the following questions:
What information and communication methods are required for the public to
effectively participate in devolved governance?
How should members of the public receive feedback from the county
governments?
How can ICT be utilized to promote good governance and accountability in
counties?
137

In summary, most members of the public are fairly clear on the expected role of
communication, information, the media and IT in the promotion of governance in the
various counties. The role of communication is also understood as being critical in
the analysis, interpretation, rationalisation and demystification of various
development agenda that are key at both national level and within the counties. In
this regard therefore it is our view that all the counties need to embrace the role of
communication and information in the promotion of development. This therefore is
the context in which the public suggested and recommended fully the need for the
creation of the following information structures, channels and outlets in all the
counties:
10.1.2 The Media and the Implications of the New Constitution
The critical discourse in Kenya before the promulgation of the new Constitution has
been broadly dominated by criticism relating to the lack or absence of constitutional
guarantees and legal protection of the press. Specific focus was on freedom of
expression, access to information, freedom of the media and the statutory limitations.
Some of the key ones include the Defamation Act, Preservation of Public Security Act,
the Chiefs Authority Act, the Official Secrets Act, Treason and Sedition as provided

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under the Penal Code Section 57 (I), the Prohibited Publications as provided as
provided for under the Penal Code Section 52 (I) and (2), Films and Stage Play Act,
Communications Act and the Kenya Broadcasting Corporation Act138.
It is therefore important that we note from the start that the current Constitution has
made significant attempt in making fundamental constitutional provisions with
regards to the freedom of expression in Article 33 (1) to (3), freedom of the media in
Article 34 (1) to (3), access to information in Article 35 (1) to (3) and Article 36 (1) to
(3) which has made provision for freedom of association139.
Furthermore, it is significant that the current Constitution under the Bill of Rights in
Chapter 4 Article 20 (1) makes provision that the Bill of Rights applies to all law and
binds all state organs and all persons.
Significantly, Section (2) provides that every person shall enjoy the rights and
fundamental freedoms in the Bill of Rights to the greatest extent consistent with the
nature of the right or fundamental freedom.12
Enjoyment of freedom is in this context given by the Constitution as fundamental
right to every person. These provisions when taken together with the provisions in
Article 33 to Article 36 (1) to (3) provides critical and significant constitutional
guarantees on the press freedom, access to information and freedom of expression.
It is therefore envisaged that the counties and national Government by virtue of these
provisions undertake as a matter of legal requirements and policies to enact the
necessary legislation and amendments of the various existing Acts so far identified to
bring them in line with the current constitutional requirements.
Besides, given the supremacy of the Constitution, the private media outlets and those
owned by various interest groups must make all the necessary legal adjustments as
well. Such changes will thus create greater communication flexibility, space and
enhanced role of the media in aiding participatory democracy. However, continuous
attempts must be made in tackling factors that continue to limit the functional roles
of the media both at the national and county levels. Such factors include: the political
interference with the work of the media, concentration of media ownership in the
hands of few people, legal limitations, human expertise, access to news print due to
the fact that the bulk of the material are imported, economic limitations, ideological
influence on editorial contents, the cost of sourcing contemporary media related
technology and training needs for the future.
If some of these issues are carefully addressed, then it is a given that the role of
communication and the provisions of information will go a long way in promoting the
broad issue s relating to the principles of human dignity, freedom, justice, peace and
citizens participation in governance at the both the national and county levels
respectively.

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10.1.3 Key Issues and Recommendations
Many scholars, practitioners and users of information, internationally, are now
unanimous on the critical roles played by communication, information and the
various media channels in the promotion of good governance and the development.
These functions may for example relate to;
1. Principle roles of communication in governance and participation in
development
Communication and information serve the democratic requirement by way of
providing information for use by citizens in decision making process
Media outlets provide national forums for ideas generation and democratic
debates on various key issues of governance.
Media outlets also provide space for citizens greater access to formal levels of
expression, freedom and control of public information processes
Media institutions equally provide space in which the distribution, choices and
execution of power are by way of public policy design scrutinized and
contested through public debates.
The media enhances increased levels of access to information and the
knowledge that people require in a democracy
The media institutions are equally considered as critical national actors in
setting national agenda on various core issues of governance
The media as well have the capacity of acting as checking balance on behalf of
the silent majority by keeping governments on their toes by insisting on
differentiating the difference between governmental functions and actual
levels of government delivery.
Promotion of national values, the Bill of Rights and the Rule of Law
Promotion of the constitution by way of analysis and interpretations.
The media is needed in contextually and correctly mediating on factors which
are linked to genuine democracy and citizens participation such as
reason/responsibility, mutual respect, access to political power, freedom of
expression and freedom of conscience.
Communication serves the ends of democracy through the facilitation of
popular participation of citizens in public affairs for purposes of opening up
political space and transitions with other none state actors.
Provide mechanisms for information exchange among citizens and feedback
between citizens and governments
Used in motivation of citizens to participate in issues of governance and
encouraging them to stand up for their rights
Fight for the retention of political elasticity and democratic gains.

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2. The principle relating to the Role of Communication and information in
the promotion of development
Provision of communication and information solidifies the interface between
democracy and development by arguing for both values and advantages
The media has broad and flexible theoretical framework that enable them to
promote various development activities, objectives and goals.
Plays critical functions of mobilizing human resources, molding, replacing old
norms and at the same time has the capacity to enhance human productivity
and ability to increase labor efficiency.
The media can be used as agents for the transmission of news needed to
balance the knowledge gap relating to various development issues and
concerns
The media has the capacity to demystify development issues by way of creating
clarity that enhances changes of replication of the development issues being
implemented
The media have the capacity to keep the development agenda alive
internationally, nationally and at the county levels
3. Principles relating to the constitutional provision on Freedom of
Expression
According to Article 33(1) to (3) on the freedom of expression, fundamentally the
constitution in this section provides that every person has the right to freedom of
expression which includes freedom to seek, receive or impart information or ideas.
Also included here are freedom of artistic creativity and academic freedom of
scientific research.
Significantly therefore, the above constitutional provisions give extensive levels of
freedom to the individual in seeking information and imparting it as well. The
academic freedom and freedom of scientific research has also been provided for.
It is however, significant that we note the import of the limitations under Article
33(2) where the right provided under Article 33(1) to 3 above with regards to the
freedom of expression as not extending to:-
Propaganda for war
Incitement to violence
Hate speech or
Advocacy of hatred that may constitute ethnic incitement, vilification of others
or incitement to cause harm
Whereas, Article 27(4) provides that in the exercise of the rights to freedom of
expression every person shall respect the right of and reputation of others.

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4. Principles relating to the freedom of the media
Article 34(1) states in part that freedom and independence of electronic, print and all
the other types of the media is granted and that the state shall not exercise control
over or interfere with any person engaged in broadcasting the production of
circulation of any publication or dissemination on information by any media or
penalize any person for any opinion or view or content of any broadcast, publication
or dissemination
One of the imports of the above provisions is that the constitution here now provides
guarantees to the freedom of the press to the extent therefore that any attempts to
challenge the freedom of the press shall therefore be null and void given the
supremacy of the constitution. Except only where the constitution has posed
limitations under specific sections.
5. Principles relating to the access to information.
Article 35(1) states that every citizen has the right of access to information held by the
state and
Information held by the state; and required for the exercise of protection of
any right of fundamental freedom
Every person has the right to the correction or deletion of untrue or misleading
information that affects the person.
The state shall publish and publicize any important information affecting the
nation.
6. Principles relating to freedom of association.
This is provided for under Article 36(1) to 3, where the right of association which
includes the right to form join or participate in the activities and other rights are
recognized.
In seeking the publics views on the questions relating to the above specific
constitutional provisions and other related issues in the area of communication and
information, we asked the following questions.
What information and communication methods are required for the public to
effectively participate in devolved governance?
How should members of the public receive feedback from the county
governments
How can ICT be utilized to promote good governance and accountability in
counties
Most members of the public are fairly clear on what roles communication and
information should play. The media and IT should play a role in the promotion
of governance in various counties. The role of communication/media is

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understood as critical in the analysis, interpretations, rationalization and
demystification of various development agenda that might be key to both
county and the national government.
The following are some of the key recommendations, possible policy options and legal
matters relevant to the communication, information and governance:
That public communication, information and the media should fully be made
an integral part of democratic governance and be made to play at the same
time an overarching role in the various aspects of government at the national
and county levels given their central role in government.
There should be in place broad public policies and extensive legal provisions
based on the media ownership and covering as well issues that may relate to
the questions of cross media ownership and self regulations
That there is need to develop public policy framework for the counties with
regards to the needed guidance on the relevant types of media to be created at
the county levels and why? And that critical attention is given to the traditional
media as well.
Public and legal policy relating to the editorial policies regarding content be
put in place.
Public policy on the creation and development of the various relevant
community media channels and language of choice be instituted.
A county plan for building information and communication infrastructure in
the counties
Adopt policies that shall eliminate or reduce import tariffs, taxes and other
legal barriers to the use of ICTs at county levels
Establish an enabling environment to foster the flow of development
information and communication at all levels of the counties
Implement policies that seek to computerize and promote the use of ICTs in
Government services at all county levels
Conduct as need may arise, communication and information needs analysis to
determine requirements and set up information and communication services
in key sectors in the various counties as per priorities
Identify and develop IT application areas with the highest impact on socio-
economic development at the county levels
take steps to facilitate the establishment of locally based low cost and widely
accessible Internet services and indigenous African information content in the
counties
Prepare and adopt plans in the counties that seek to develop human resources
in ICT, and adopt at the various counties policies and strategies that seek to

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increase access to communication and information facilities with priorities
given to serving rural parts of counties, grassroots and the marginalized
groups such as women, youth, aged, minorities, and children140.
We recommend that we use the constitutional provision under Article 33(1) to
(5), 34 (1) to 4, Article 35(1) to 3 and Article 36(1) to 3 and suggest a way of
operationalising these provisions to inform the various relevant laws that
might have been envisaged by these constitutional provisions.
It is recommended that through legal review be done to the past acts and
statutes for purposes of amending them as a way of making them account the
provisions of the current constitution.
These Acts are:
Defamation Act
Preservation of Public Security Act
Chiefs Authority Act
Official Secrets Act
Treason and Sedition Acts provided for under the penal code section 57 (1)
The Prohibited Publications Act as provided for under section52(1) and 2
Films and Stage Plays Act
Communications Commission Act
Kenya Broadcasting Corporation Act
Freedom of Information Bill
An overarching organic law be put in place at the national level linked to the
constitutional provisions and the Bill of Rights specifically on:
(a) Freedom of Expression as detailed under Art.33 (1) to (3)
(b) Freedom of the Media as detailed under Art. 34 (1) to (5)
(c) Access to Information as detailed under Art.35 (1) to (3)
(d) Freedom of Association as detailed under Art. 36 (1) to (3)
There is need to review the existing Acts of Parliament in the area of
communication and information to ensure that they take into account the
current constitutional provisions in Art 33(1) to (3), Art 34 (1) to (5), Art 35 (1)
to (3) and Art. 36 (1) to (3)
Policy Issues/Options:
Public communication and information be integrated in various aspects of
governance as an overarching principle
There should be policy that deals with the question of media ownership and
communication outlets at the county outlet
Policy on deregulation and regulation of the media mechanism
Policy on editorial policy

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Policy on IT- Information Technology at the counties
Policy on Community Media i.e community radio, community theatre groups
10.1.5 Outstanding Issues
It is internationally recognized now that the role of communication and information
is a critical overarching activity in the whole question of governance in a number of
respects. For example, communication is key as a tool that serves the ends of
democracy. This is done by way of communication, and the media providing
adequate, relevant, appropriate and accurate information that enhances citizens
depth and understanding of governance issues while at the same time improving
their collective decision making processes on issues of governance. Furthermore
communication is critical as a tool that seeks to enforce public opinion on governance
as well as creating a mechanism that improves feedback between the government and
citizens. It is therefore imperative that the national government and the county
governments pay critical attention to the question of communication and information
both at national level and at the county levels. One way of doing this is to ensure that
at policy level, public communication is integrated into the whole question of
governance. Of significance however is the requirement that all county governments
ensure that these considerations are given attention both at policy level and by way of
legislation.
However notwithstanding these critical issues we note that a number of issues were
not given due consideration and direction on how they should inform the
operationalization and implementation of public communication at the county level.
These issues have been flagged as policy options under the sub-section dealing with
recommendations. Refer to section on policy options in the text above.
Similar attention should be given on issues that relate to legislation also discussed
above. Refer to section on legislation in the text above.
10.2 CIVIC EDUCATION ON DEVOLVED GOVERNMENT
Following the promulgation of the Constitution of Kenya, the government has taken a
policy decision to fund and facilitate civic education on the Constitution. This
decision was made at the Cabinet meeting of 28
th
October 2010. In this connection
the Ministry of Justice, National Cohesion and Constitutional Affairs is coordinating
the design and development of civic education on the Constitution.
A multi-sectoral national committee has been established for this purpose. The
committee brings together government ministries, departments and agencies
(MDAs), civil society, faith based organizations, and the private sector. Additionally,
the government has an inter-ministerial committee bringing together key MDAs,
while the non-state actors also have their own committee.

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Civic education on devolved government will be part of the national civic education
effort, and will be facilitated by the Office of the Deputy Prime Minister and Ministry
of Local Government.
10.2.1 Strategic Communication
Strategic Communication is the manner of communicating a process, or
information/data that satisfies a long term strategic goal. With it is the ability to
facilitate advanced planning so as to communicate over long periods of time and
space. From a technological perspective, it is the ability to shorten communication
over long distances usually using international telecommunications or dedicated
global network assets. From a social perspective, strategic communication is the
developing and collation of information, and logistical planning for dissemination of
deciphered social messages. In modern times, strategic communication of a social
nature uses both social and technological networks to coordinate actions and
activities of communication processes.
Hence strategic Communication within the context of the transitional road map in
implementing devolution refers to policy-making and guidance for consistent
information activities by the government to ensure that the public is appraised on the
meaning, implications and working of devolved system of government within the
meaning of the Constitution and legislative frameworks.
10.2.2 Civic Education on Devolved Government
The Task force on Devolved Government was set up in October 2010 to among other
TORs . make proposals for effective implementation of devolution structures
consistent with the provisions of the Constitution.
This section on civic education on devolution finds expression in the Taskforce TORs
in as far as it relates to recommending policy frameworks for implementation of
devolved government as provided for in the Constitution
This is further augmented by the Constitution provisions at Article 33 (1) to (3) that
makes provisions for the freedom of expression; Article 33(1) that provides that every
person has the right to freedom of expression which includes freedom to seek, receive
or impart information or ideas; and Article 35 (1) to (3) which deals with access to
information which emphasizes that every citizen has the right;
of access to information held by state
to information held by another person and required for the exercise or
protection of any right or fundamental freedom; and
to correction or deletion of/or misleading information that affects the person
And most fundamentally the state shall publish and publicize any important
information affecting the nation.

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The Task Force has therefore, a mandate to ensure that the resultant policy and
legislative framework to anchor devolution is buttressed with civic education in built
in the transitional roadmap to enable the people of Kenya understand, embrace, and
support, promote, and protect the gains of devolution.
10.2.2.1 What is civic education?
In a democracy, civic education is necessary to ensure that citizens understand their
political system, their rights, the
issues they would be expected to
participate in and help decide
upon, and how and where such
decisions would be made.
Civic education is political
education or, the cultivation of the
virtues, knowledge, and skills
necessary for political
participation.
Civic education can be likened to
the famous rendition by
Tocqueville's that: Town
meetings are to liberty what
primary schools are to science;
they bring it within the people's
reach, they teach men how to use
and how to enjoy it. Therefore,
understanding civic education,
especially democratic education,
integrates both formal settings (schools) and informal settings (families,
communities, libraries, houses of worship, workplaces, civic organizations, unions,
sports teams, campaigns and elections, mass media).
Civic educators seek to impart skills, knowledge, and participatory virtues; they also
seek to engrain in society a felt connection to, if not an identity with, that country,
County or society. This is no small or minor undertaking.
10.2.2.2 What is the context of civic education in Kenya?
The Task Force appreciates that civic education has and continue to be carried out in
Kenya by various actors, especially Civil Society, faith based organisations, quasi-
governmental agencies and the media. In terms of areas of focus, especially in recent
times, civic education content has tended to be sectoral and thematic. There are CSOs
specializing on specific aspects of rights such as violence against women, property
COUNTY VISIT SUBMISSIONS ON CIVIC
EDUCATION
There should be national civic education
on the constitution as a whole and with
particular emphasis on the concept of
devolution and devolved governments.
Civic education should be integrated into
various national county reform issues
An annual conference for county
governance
Need for divisional representation as
centers of dissemination of information
at the county
Awareness on marginalization issues
Need for the dissemination of broadcast
programs using community media and
establishment of County
magazines/monthly
newsletters/Information bulletins at the
counties.

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ownership and inheritance, political participation by youth and women, rights of
persons with disabilities and rights of minorities and marginalised groups. Still
others specialize on governance issues such as corruption, impunity and specific
constitutional provisions, including devolution. The design, content and methodology
applied in delivery of civic education have metamorphosed from one historical epoch
to another, always informed by prevailing social, economic, political and cultural
imperatives.
In the period leading to the National Referendum on the then Proposed Constitution
of Kenya on 4
th
August 2010 and soon after its promulgation, civil society re-
engineered its interventions in the realm of civic
education. The area of focus is now on
implementation, with particular attention on
ensuring that the process is not held back by
captive interests of the political elite, but that it
remains faithful to the letter and spirit of the
Constitution itself. These interventions are
currently being undertaken by loose umbrella
formations and structured platforms, among
others URAIA, NCSC, CRECO, DCIC, CEDMAC,
G-10, CMD, Women Leadership Caucus,
COVAW, Pillars of Transformation, KPTJ,
SODNET, DEGONSA, SUPKEM, Inter-Religious
Council, Constituted Indigenous Churches, the
Hindu Council, NCCK, CJPC and COTU.
Individual CSOs, including CBOs are also
engaged in Civic Education in their mandated
niche and thematic areas of core competences.
Kenya adopted a new constitutional dispensation
following the debilitating post-election violence
of 2007 2008, in which slightly over 1,300
Kenyans were killed, an estimated 600,000
rendered internally displaced persons (IDPs) and the economy suffered a body blow
estimated at 60 billion Kenya shillings. It has now been accepted that the disputed
2007 presidential election, was merely a trigger of the violence. The main causal
factors are the long outstanding underlying historical grievances. This realization led
to the inclusion of AGENDA 4
141
: The long term issues and solutions in the Serena
Peace Talks by the Kenya National Dialogue and Reconciliation process. The design
of any civic education in this context will therefore need to take cognizance of the
circumstances in which Kenya now finds itself.
AGENDA FOUR (4)
The long term issues and
solutions. It is what is commonly
known to a majority of Kenyans as
AGENDA FOUR (4). The successful
conclusion of the constitution making
process is the cornerstone of this
item. It is the more overarching of
the annotated agenda of the KNDR
as it incorporates undertaking
constitutional, legal and institutional
reforms, tackling poverty and
inequity as well as combating
regional development imbalances
and unemployment particularly
among the youth, consolidating
national cohesion and unity,
undertaking land reform and
addressing transparency,
accountability and impunity.

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In view of the foregoing, Kenya may be said to be in post-conflict phase given the
effects of the post-election violence and the affirmation of the subsequent National
Accord on the basis of undertaking fundamental reforms. Given this perspective, civic
education is especially important for the transformation processes that will take five
years
Since Kenya is a country in transition, civic education provides an unparalleled
opportunity to educate citizens on the quality of change envisioned in the new
Constitution, and the importance of people engagement in all aspects of the
governance process, and what the people contribution can make to building
democracy through devolution.
Civic education is even more critical in post-Constitution making and Constitution
implementation phase Kenya due to;
a conflictual referendum where political positions for and against were
adopted;
a large mass of the population remain ignorant of the Constitutional
provisions;
lack of experience with a new system ushering in major institutional, structural
and political changes;
a volatile political situation and where changes will have an unprecedented
impact on the countries future; and
the need to sustain democracy, because of its combination of numerous and
more varied points of shared common interest and its requirement of
continuous readjustment through meeting the new situations produced by
varied intercourse.
10.2.2.3 What is the purpose of civic education in Kenya?
Civic education does help prepare citizens for public participation. Civic education is
critical in enhancing Kenyans participation in the success of the devolved system
particularly in post-implementation legislative phase. Civic education on devolution
should therefore be accessible to all the diversity of Kenyan people. The information
conveyed should be sensitive and collaborating the Constitution and related
legislation; and designed on the basis of relevance to building a united Kenya. Civic
education on devolution will help enhance Kenyans passionate participation in the
economic and the political socialization of the devolved system.
Of particular importance is the need to create a culture in which Kenyans are
encouraged to participate in self-actualization and determination
10.2.2.4 What are the objectives of civic education on devolution?
The main aim of civic education on devolution is to convey knowledge of Kenyas
transformed political system and context. Civic education will include information on

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the devolved system of government; the nature, powers and operations of the
National and County institutional offices (distribution of functions); inter-
governmental and intra-County relationships; allocation and distribution of
resources; and structures and institutions of devolved government, among others,
including transitional issues related to elections, the principal economic, social and
political issues facing County administration and the form, structures, procedures
and manner of public participation.
To ensure participation in representative government or democracy, civic education
(mental education) is part of the political education of a free people, taking them out
of the narrow circle of personal and family selfishness, and accustoming them to the
comprehension of joint interests, the management of joint concernshabituating
them to act from public or semi-public motives, and guide their conduct by aims
which unite instead of isolating them from one another.
There is also the inspirational notion that through devolution, Kenyans will act
through justly administered institutions that will stabilize and perpetuate the good
society. The catalyst to this outcome is civic education on devolution.
10.2.2.5 How will civic education be applied for devolution?
Civic education on devolution will be used to describe and explain the Constitution
provisions on devolution; the legal, structural governance and political changes; and
for the dissemination of information, materials and programmes designed to inform
the people about the changes, their rights and responsibilities; and the specifics and
mechanics of County governance and relationships with the National government.
This will inherently involve providing information on who is responsible for what
functions. Additionally, civic education may incorporate voter education; who will be
candidates; where and how to register; political parties lists; how electors can check
the voter lists to ensure they have been duly included; what type of elections are being
held; where, when and how to vote; and how to file complaints.
10.2.2.6 What are the factors in civic education on devolution?
Factors
make information available and accessible to all
seek to achieve universal coverage of the Country
high rates of illiteracy
the use of different languages in a country, even if there is only one official
language.
Specially target minority groups, internally displaced persons and other
marginalized segments of society e.g. launch special educational campaigns
aimed at highlighting the fact that they have the right to be accommodated
special messages to youth

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publicity for the process
Approaches and Methodology
The informal settings
Educational institutions
Live, interactive coverage on national TV stations
Online blogs
Online interactive questionnaires
10.2.2.7 Civic education on devolution activities
The government should be primarily responsible for civic education. Given that the
reform agenda was born out of the National Accord and is highly political, it is crucial
that government sponsor civic education, but ensure it remains neutral and accurate,
and that it is not seen to favour any party or social interest. Civil society should dove-
tail into a civic education curriculum designed by government with the valuable
contributions of other civic groups. Civil society will be particularly useful and
effective in developing sensitive messages that disseminate a positive image of
devolution.
mobilizing public opinion in favour of maintaining the tempo of reconstruction
under devolution
integrating the media to play a key role in breaking down negative stereotypes
against devolution and encouraging Kenyans full participation.
mobilizing the international community to make constructive contributions to
civic education, drawing on its substantial experience in promoting democratic
participation worldwide
10.2.2.8 Civic education on devolution Curriculum
Because Kenya is emerging from conflict, civic education on devolution curriculum
should;
motivate all Kenyans to positively support and promote the ideas of
devolution.
begin with an explanation of the nature and importance of the National Accord
of February 2008 and the attendant mechanisms such as the Krigler and Waki
Reports; the institutional reform process setting in place the Interim
Independent Electoral Commission (IIEC); Committee of Experts (CoE); the
Interim Independent Boundaries Commission (IIBC); Truth Justice and
Reconciliation Commission (TJRC); and National Cohesion and Integration
Commission;

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the products of these Commissions and how they have contributed to the
reform process and
communicate their
advance of democratic
reform in Kenya.
The Constitution making
process culminating in the
new Constitution focusing
citizen desire for a
democratic and equitable
society, human rights of all
citizens (especially their
civil and political rights
with regard to
governance); desire for full
participation in the political process.
highlight the importance of citizen knowledge and expertise in the areas of
reconstruction and national reconciliation, as well as the importance of citizen
equal involvement in the political process.
10.2.2.9 Policy Recommendations
Government through the Office of the Deputy Prime Minister and Ministry of Local
Government should:
Should facilitate the Task Force to start Civic Education immediately but
incrementally as part of the validation of field submissions and the report to
the public.
A national comprehensive curriculum on Civic Education on devolution should
be consultatively developed through partnership of the government and non-
state actors.
That policy be made to ensure that the material development for civic
education is accurate, relevant and politically neutral.
Review all materials to ensure they are politically neutral and gender-sensitive;
Provide sufficient resources to ensure such programmes reach all citizens;
Initiate special civic education programmes for target groups, including
women, minorities, displaced persons, youth, and people with disabilities, and
others who may be less likely to access mainstream delivery; and
Develop gender-sensitization programmes for personnel responsible for civic
and voter education.
Civil society should:
OUTSTANDING ISSUES ON CIVIC
EDUCATION

1. Comparative models for Civic
Education
2. Integration of Civic Education on
devolution in national Civic Education
on the Constitution
3. Legislation on Civic Education
required
4. Design of Civic Education Curriculum

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Develop civic education devolution messages that highlight the capacities of
devolution institutions encourage and promote citizens full participation in
the devolution implementation process;
Help ensure that the countrys leadership and citizens understand that
deviation from set principles and objects of devolution are not acceptable and
constitute fraudulent impunity;
Ensure that all people have access to civic education on devolution;
Design training programmes for special target groups such as women,
minorities, displaced persons, youth and people with disabilities.
Monitor the civic education programmes.
There is need to create linkages between civic education and training for the
public servants and politicians
International partners should:
Support civic education on devolution programmes, through technical
sourcing;
Provide funding for civic education programmes;
Provide relevant lessons learnt and best practices elsewhere for possible
inclusion in the proposed model.
Legislative Proposals:
Proposed that the national law entrenching the permanent creation of
National Civic Education Body be put in place
There is need to review the following acts to take into account the proposed
curriculum suggested for national civic education;
theEducation Act
the NGO Act,
the Communication Commission Act
and any Act that may be relevant to the principle of Civic Education be
reviewed
10.3 CONCLUDING REMARKS
This chapter has covered public participation in the perspective of governance issues
related to transparency, accountability, decision-making and equity. The Chapter
integrates issues of inclusivity for the marginalized and minority in the context of
public participation in a democracy. The unit on communication and civic education
summarizes the need for integration of communication and its offshoot, civic
education, into all facets of governance processes and institutions. The presentation
of civic education covers the fundamental issue of integrated civic education as a key
factor in building a symbiotic culture of accountable government and responsive

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citizens. In all the units of the chapter, there are unveiled proposals for legal, policy
and institutional interventions.

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11 BUILDING AN EFFECTIVE AND CAPABLE PUBLIC
SERVICE
11.1 INTRODUCTION
11.1.1 Public Service
The governance of the public service is a shared responsibility between various
institutions. In a number of countries, these institutions play complementary but
distinct roles in ensuring the establishment, regulation and management of the public
service within certain general principles.
The principles of staff establishment and regulation of the service revolve around the
issues of appointment, disciplinary control and transfer of public officers while those
of management and administration basically focus on formulation and
implementation of policies intended to facilitate delivery of public services. These
include terms and conditions of service of employees.
In the Commonwealth and a number of other countries, Service Commissions or
equivalent institutions are constitutionally responsible for staffing of the public
service while formulation and implementation of policies on terms and conditions of
service is the responsibility of the relevant ministry or department in the Executive.
Whether or not the shared responsibility is carried out at national government or
devolved levels of government depends on the constitutional provisions in respective
countries. However, the following general principles apply irrespective of levels of
government:
Recruitment and placement based on the needs of the service
Objective, fair and competitive recruitment criteria
Performance management and evaluation
Fair and consistent disciplinary processes
Remuneration, pensions and other terminal benefits.
These principles will form the primary basis for formulation of a human resource
management and development framework in county governments.Various provisions
in the Constitution especially on Public Service, Public Finance and Devolved
Government will have profound implications on this framework. The public service
both at the national and county levels is expected to contribute to the achievement of
the economic, social and political aspirations as articulated in various government
policies. The ability of the Service to effectively play this role will significantly depend
on the form and nature of the restructuring that it will have to undergo.
The current institutional, governance and human resource structures which were
developed and evolved under a different constitutional and legal order need to be
reformed to be in tandem with the provisions of the constitution. Towards this end

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the existing public service human resource management policy framework, statutes
and practices and the attendant challenges that constrain the public service in
effectively delivering on its mandate will need to be addressed.
11.1.2 Human Resource Management Issues in the Public Service
Until the advent of the later phases of public service reforms in the later years of the
20th century, the existing human resource management approach was
predominantly process-based and focussed more on a centralised environment with
limited adaptation to accommodate more dynamic issues in a devolved environment.
In addition, historic poor governance within the public service generally contributed
to deficiency in service delivery, a culture of compartmentalization and individualism
at the expense of teamwork.
Performance was for a long time compromised by excessive discretion in government,
lack of transparent control systems, excessive bureaucracy and weak capacity. This
led to erosion of professionalism in many areas, perceptions of widespread
corruption, abuse of office, cronyism and inequities in access to services. Though
successive reform efforts significantly reduced the incidence of these challenges,
there was lack of profound and sustainable change in the service. These challenges
have assumed more significance in view of the new constitutional provisions
especially on Values and Principles of Public Service and Staffing of County
Governments.
11.1.2.1 Policy Perspectives
Human resource management and development in the public service has broadly
been underpinned by various national and sectoral policies. These include the over-
arching Kenya Vision 2030, the Visions first Medium Term Plan (2008-2012),
Ministerial Strategic Plans and initiatives such as Results Based Management and
Performance Contracting. In this connection, the various flagship projects on human
resource development under Kenya Vision 2030 are aimed at creating a globally
competitive and adaptive human resource base to meet the requirements of the
Vision.
Human resource management is regulated through such statutes as the Service
Commissions Act, Cap. 185, Employment Act, 2007, Labour Relations Act, 2007 and
the Work Injury and Benefits Act, 2007. Relevant International Labour
Organisations Conventions and Declarations have likewise informed the formulation
of sectoral policies such as those on Tripartism and Social Dialogue in labour
relations.
The management and development of human resources is the responsibility of the
Ministry of State for Public Service.The Ministry provides strategic direction in the
formulation, interpretation and implementation of human resource policies,

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programmes and practices designed to enhance service delivery in the public service.
Article 234 of the Constitution has however given many of these functions to the
Public Service Commission.
11.1.2.2 Challenges
The Public Service has over time faced numerous challenges in Human Resource
Management and Development. The challenges which are expected to persist in
various forms, at both levels of government, have traditionally revolved around the
following complementary and inter-related issues.
a. Policies, procedures and institutional arrangements
b. Culture change and transformation of the human resource function
c. Recruitment and placement
d. Human resource planning
e. Performance management and evaluation
f. Remuneration
g. Training and capacity building
h. Employee welfare
The challenges associated with these issues will now have to be addressed within the
context of the relevant provisions of the constitution.
11.2 COMPARATIVE ANALYSIS
A study of public service structure and management in several countries with
devolved systems of government gives an indication of the scope of the roles that the
different levels of governments play. This is evident not only from the constitutional
and legal basis of the public service in these countries but also the policy formulation
and implementation aspects especially on terms and conditions of service of public
officers.
11.2.1 Germany
The federal system of government in Germany, with its three levels of government is
characterised by lower levels of government that have been granted autonomy in
regulating local affairs within the limits of federal and state law. With respect to
staffing of local authorities, this autonomy includes organising and staffing these
authorities. In this regard, the two levels of government below the federal
government (state Lander and local authorities) have the responsibility of
recruiting and promoting staff. Recruitment is conditional on existence of a vacancy
and is done within a common legal framework of federal civil service legislation.
This arrangement closely mirrors the national framework of common norms and
standards envisaged in Article 235 of Kenyas constitution. On the other hand, the
federal government has the power to legislate on matters regarding employment

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conditions, remuneration and pensions for all civil servants in Germany. In Kenya
this function is an implied constitutional responsibility of the national government,
but with the input of the Public Service Commission and the Salaries and
Remuneration Commission.
11.2.2 United Kingdom
In the United Kingdom, the lack of a written constitution has not been a constraint in
providing for a legal framework that addresses pertinent public service issues. The
framework includes such legislation as the Sex Discrimination Act (1975), Equal Pay
Acts (1975 and 1986) Race Relations Act (1976) and the Disability Discrimination Act
(1996).
Besides the relative autonomy of local authorities in the management of their
respective public services, there is extensive decentralisation of management policy
making and implementation to departments across the civil service. However the
Cabinet Office still retains a close oversight and regulatory role especially in ensuring
that departmental systems are consistent with overall government principles
including those on terms and conditions of service.
11.2.3 South Africa
Like Germany, South Africas public service is characterised by three levels of
government with an over-arching constitutional principle of co-operative governance.
Notwithstanding the extra level of government in South Africa (Provincial), there are
similarities with Kenyas constitution concerning the provisions on values and
principles of public service as well as frameworks of national legislation including
legislation on administration and management of public service at lower levels of
government.
11.3 COUNTY PUBLIC SERVICE
11.3.1 Staffing of County Governments
Current mandates and functions of Ministries and Departments are determined by
the President. The organisation structures and workloads associated with these
mandates are critical in determining staffing of Ministries and Departments as well
as the spatial distribution of staff in field offices. Suitable organization structures for
the national and county governments will be fundamental in facilitating the effective
discharge of the functions assigned to both levels of government by the constitution.

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The responsibility for staffing of county governments has, under Article 235 of the
constitution, been assigned to county governments. Staffing in this context goes
beyond the mere deployment of staff in counties, but includes appointment,
confirmation in appointment and disciplinary control. The process of establishing
and abolishing offices in the service of these governments should be guided by the
optimum number of staff required to perform the functions assigned to county
governments under the fourth schedule of the constitution. In order to determine the
optimum number of staff
respective county
governments will need to
conduct workload analysis.
They will also need to
identify functions that could
be performed more
effectively by the national
government and therefore
subject to transfer under the
provisions of Article 187 of
the constitution.
However, in the transitional
period before a county
government is in place, it is
recommended that the
national government
develops a tentative
organisational structure and
staff establishment for each
county, consistent with the
distribution of functions for
both national and county
governments at the county
level. Besides providing an initial framework and basis for establishing and
abolishing offices when the county government is finally constituted, the tentative
organisational structure will be useful in informing the deployment of staff at both
levels of government in the county.
11.3.2 Norms and Standards
The staffing of county governments will be done within a framework of uniform
norms and standards prescribed by an Act of Parliament. The relevant Act of
Parliament is not among the specific legislation enumerated under the fifth schedule
of the Constitution. The framework of uniform norms and standards on staffing of
THE COUNTY PUBLIC SERVICE

Extensive consultations with members of the public in all
the counties elicited varied responses on the various
thematic areas of county public service. The twin issues
of staffing of county governments and the fate of
employees of local authorities were of special concern to
those who chose to give comments and suggestions.
Specifically, the following recommendations were
significant:
Appointment of public officers should have a bias
towards local residents;
Lack or shortage of technical personnel at middle
and senior levels in a county should be addressed
through secondment of staff from national
government or other county governments;
Need to harmonise terms and conditions of service of
staff especially those who previously worked in local
authorities;
Need for provision of equal opportunity and fair
competition in recruitment of staff in counties;
National government should not transfer staff to
counties especially those regarded as marginalised
areas as a form of disciplinary action.

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county governments could therefore either be in a legislation that is specific to
staffing in county governments or within a separate legislation that addresses
relevant issues.
Nevertheless, the uniform norms and standards should comply with Article 10 on
National Values and Principles of Governance, Article 41 on Labour Relations,
Article 56 on Minorities and marginalised groups, Articles 203 on Equitable share
and other financial laws, Article 230 on Salaries and Remuneration Commission and
Article 232 on Public Service Values and Principles. Specifically the norms and
standards should provide for the following:
Criteria for determining the need to establish or abolish offices
Representation of Kenyas diverse communities, gender and persons with
disabilities in the public service.
Meritocracy and fair competition in appointments.
Qualifications of staff in the public service and applicants for appointment.
Distribution of functions between national government and county
government.
Fiscal sustainability of the wage bill.
Harmonisation of regulations on discipline with those of the Public Service
Commission.
Fair labour practices.
Norms and standards in respect of appointments may include benchmarks in the
form of ratios, percentages and other relevant parameters.
11.3.3 Promotion of Values and Principles in the County Public service
Under Article 232 of the constitution the values and principles of public service apply
to all state organs in both levels of government. In this regard, the powers and
functions of the Public Service Commission under Article 234 include the promotion
of values and principles in Articles 10 and 232 throughout the public service and to
evaluate and report to the President and Parliament on the extent to which the values
and principles in these Articles are complied with in the public service.
However, under Article 234(3) these powers and functions do not apply to an office in
the service of a county government. On this basis there may not be need for the Public
Service Commission to include in its report to the President and Parliament the
extent to which the values and principles have been complied with by county
governments.
Nevertheless, in view of the critical importance of ensuring that the values and
principles of public service are equally promoted in the service of county
governments, the evaluation and reporting of the extent of compliance should be
done by the proposed independent County Public Service Board.

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11.3.4 County Public Service Board
Under the Constitution the powers and functions of the Public Service Commission in
respect of county public service are limited to hearing and determining appeals. The
Commission will therefore have no role to play in the exercise of the responsibility
that is assigned to county governments on staffing in accordance with Article 235.
This gives rise to several questions on the process that the county governments will
follow in discharging this responsibility and the structures at their disposal for this
purpose.
It is for instance not clear whether the county governments will have the capacity to
conduct professional and objective staff recruitment and promotion. This uncertainty
is informed by the perception that there may very well be strong temptation by the
political leadership in the county government to pander to political interests in staff
recruitment. Past experience concerning recruitment in local authorities does not
help in dispelling this fear. The same could be said about disciplinary control and
removal of public officers from county public service. While this challenge could in
the short run be partly addressed through capacity building involving the Public
Service Commission in the context of the principle of cooperative government, there
is need to seek a longer term solution.
In this connection county governments may wish to create a County Public Service
Board that will carry out on behalf of county governments the responsibilities
assigned by the constitution through article 235. Other functions of the Board may
include offering advice to county governments on staffing of their respective public
services; implementation of national legislation and policies on human resource
management and development; promotion of labour relations in county public
service and facilitation of cooperation between county governments in the
performance of functions and exercise of powers as provided for under Article 189(2).
11.4 TRANSITIONING FROM THE CURRENT PUBLIC SERVICE
11.4.1 Staff Audits in Ministries/Departments, Local Authorities and State
Corporations
The determination of optimal staffing levels will be on the basis of functional
distribution between levels of government and workload within the various
departments both in the national government and county government. An audit of
staff serving in Ministries/Departments, Local Authorities and State Corporations
will therefore be necessary in providing an initial assessment of the status of staffing
in the entire public service.
The staff audit will focus on the existing human resource capacities in terms of
numbers, cadres, grades, gender, age and qualifications. In this connection, there will
be need to disaggregate staff into professional and support categories. The

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information obtained will facilitate re-distribution and deployment of staff. For the
purpose of ensuring integrity of the audit process, there should be an immediate
embargo on recruitment of non-essential staff until the county governments are in
place. Besides facilitating deployment of existing capacity, the embargo will obviate,
to a large extent, the need for staff retrenchment once the counties are operational
and to avoid over-staffing through unscrupulous and supply-driven recruitment
during the transition period.
11.4.2 Re-organization and Deployment of Staff
Re-organisation and deployment of staff in the transition period should be informed
by the following principles:
Stability of the public service;
Matching staffing with functions;
Harmonisation of terms and conditions of service and
Preservation and protection of pensions and other terminal benefits
The majority of the staff in the public service is currently deployed in districts, Local
Authorities and State Corporations. Most of these fall within the lower and middle
level grades and have basically been performing duties related to implementation of
policies that have been developed by the government. In view of the fact that the
functions assigned to county governments under the fourth schedule of the
Constitution primarily concern the implementation of policies developed by national
governments, it will be prudent for county governments to absorb these employees to
the county public service.
However in consideration of the fact that the responsibility for establishing and
making appointments to offices in the service of the county governments is vested
with these governments, the absorption of staff currently deployed in the counties
will ultimately be at the sole discretion of county governments. However in the
transition period, these staff should be on secondment from the national government.
During the period of secondment they will be on the payroll of national government.
Similarly, the provisions of Article 190 on support for county governments would be
useful in providing a basis for the deployment of staff to the counties. There is also
need to consider the relevance of clause 33 on succession of institutions, offices,
assets and liabilities under the transitional and consequential transition provisions in
the taking over of existing staff by county governments.
11.4.3 Local Authorities Staff
In terms of appointment and disciplinary control, there has been two categories of
staff in local authorities; those appointed by the Public Service Commission (salary
scale 1-9) and those appointed by the local authorities (salary scale 10-20). It is
recommended that staff in local authorities irrespective of salary scales be absorbed

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in the county government public service on the basis of the relevance of their
experience and skills in the performance of the functions assigned to county
governments.
The experience and skills may include those that are relevant to the management of
cities and urban areas as contemplated under Article 184 of the constitution. This
deployment should apply whether or not local authorities continue to exist as
provided for under Article 18 of the sixth schedule. Those not absorbed by county
governments may be offered the option of voluntary retirement or be absorbed by the
national government. A voluntary retirement scheme would be implemented having
regard for retention of required skills mix and the provisions of Article 41 on labour
relations.
The Public Service Commission should in this connection facilitate transfer and
secondment of staff from national government and local authorities to county
governments. The Commission should also facilitate the re-designation of staff in
local authorities and those who may join the county service from state corporations to
ensure a harmonious grading system at both levels of governments
To avoid arbitrary redundancies of staff by county governments, the legislation
envisaged under Article 235 of the constitution should provide for mobility of staff
across counties to redress staff surpluses and deficits. Besides, the legislation may
provide for limitation in the recruitment of additional staff until a predetermined
optimal staffing level is achieved through natural attrition.
11.4.4 Harmonisation of Terms and Conditions of Service
The terms and conditions of service within the public service are varied and have
been characterised by different pay regimes and other benefits between sectors. This
has over time given rise to issues of equity, challenges in horizontal career growth of
staff as a result of differences in skills requirements for similar jobs and portability of
pensions. This is largely attributable to past practices by the government in
determining terms and conditions of service for its employees and a separate process
through which terms and conditions of service for employees in Local Authorities and
State Corporations are determined through an independent collective bargaining
process, albeit within guidelines issued by the government.
Terms and conditions of service are of two broad categories; those that are essentially
of a remunerative nature including salaries and allowances and those that do not
have a direct bearing on immediate payroll costs. These later ones may include
medical and pensions schemes, housing, staff welfare, working conditions, code of
conduct and occupational health and safety.
The continued differentiation in terms and conditions of service when staff from
different employers are taken up by the national and county governments will be

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detrimental to effective performance management and harmonious labour relations
in the public service. It will therefore be necessary to explore means by which the
terms and conditions of service are gradually brought as close as possible to
harmony. This should be done in a consultative process within the various tripartite
arrangements, ensuring that the terms are as much as possible not varied to the
disadvantage of any group of employees.
On this account, it will be necessary to harmonise the pay regimes for staff deployed
at both levels of government. In doing so account will be taken of any
recommendations made to the national government in respect of conditions of
service by the Public Service Commission in exercise of the powers granted to it
under Article 234 and the advice of the Salaries and Remuneration Commission. The
terms and conditions of service should progressively be harmonised keeping in view
any existing collective bargaining agreements and relevant legislation.
11.4.5 Principles of Staff Recruitment and Promotion
The responsibility of appointing staff in counties as vested with county governments
will be carried out not only within the context of Article 235 on staffing of county
governments but also Article 232 on the values and principles of public service. It is
envisaged that the legislation that will be enacted to give full effect to this Article will
relate closely with the Act of Parliament referred to in Article 235.
Besides legislation, there will be need to develop specific policies on appointment of
staff in county governments. The policies to be developed on a co-operative basis with
the national government will specifically focus on functional assignment to counties
and human resource planning as the primary basis for recruitment. Human resource
planning will assist county governments in formulating recruitment and succession
plans; avoid incurring high and unsustainable wage bills at the expense of operations
and economic-growth related expenditure; overstaffing that eventually leads to costly
and disruptive downsizing programmes; poor retirement packages; lack of
appropriate skills and low morale among employees.
In view of the universal applicability of the values and principles of public service,
which include the principles of appointments and promotions, career growth at both
levels of government should be regulated through a standardised format to be
formulated in consultation with the Public Service Commission.
11.4.6 Reporting Relationships
To facilitate co-operation between levels of government and optimize deployment of
staff, there will be need to prepare a reporting system that enhances the co-
ordination of all public service staff in the county especially where functions are
executed under independent or concurrent jurisdiction and/or in the event of

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transfer of such functions from a government at one level to a government at another
level.
A structured reporting system will further help in removing ambiguity in execution of
mandates in terms of distinctiveness and interdependence of governments and in
promoting mutual communication, consultation and cooperation. It will also provide
for reporting procedures between public officers in the national government and
authorized/accounting officers in the county governments.
11.4.7 Protection of Accrued Pensions and other Benefits
The transfers, redeployment and secondment of staff in Ministries, Local Authorities
and State Corporations will have profound implications on transferability and
protection of pensions and other benefits. This is due to the multiplicity of pension
schemes in the various sectors of the public service.
Unlike the former constitution, the current constitution only provides for protection
of pensions, gratuities and other benefits of holders of constitutional offices under the
former constitution. There is therefore need to provide in relevant legislation for the
protection of accrued pensions and benefits of transferred and seconded staff.
11.4.8 Institutional Facilities and Mechanisms for Training and Capacity
Building of Staff in the County Public Service
Implementation of performance management strategies in the service has in the past
been adversely affected by weaknesses in institutional and staff capacity. These
weaknesses have especially been acute in field stations where capacity building has
not been given sufficient priority. The transformation of the public service as a result
of the constitution will require extensive capacity building especially for the political
and executive leadership at both levels of government.
Clause 15 of the Transitional and Consequential Provisions of the constitution
provides for assistance by national government to county governments in capacity
building. Though capacity building in human resources has lately improved
significantly as a result of public service reforms, attention has not sufficiently been
focused on aligning the capacity of staff to the strategic issues that are of critical
importance to effective performance. Moreover, there has been numerous cases of
disconnect between the political leadership as policy makers at various levels and
policy implementers in understanding and appreciating core issues. This eventually
leads to paralysis in decision making.
In view of the likelihood of transferring these shortcomings to the county public
service, there will be need to develop and implement training programmes that target
the political and executive leadership at both levels of government. The main aim will
be to promote efficient service administration and harmonize interpretation,
application and enforcement/ implementation of law; assist staff to uphold and

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promote the spirit, values and objects of the law when making or implementing
public policy decisions; understand rights, limitations, obligations and
responsibilities of the client in service delivery.
11.4.9 Role of Government Training Institutions and Professional
Associations in Capacity Building
The various Government Training and Management Development Institutes will be
especially useful in developing training programmes that focus on the requirements
of the transformed public service. These programmes will not only be on the
development of transformative leadership and change management but also the
development of technical and professional skills necessary in the realisation of the
mandates of the public service.
Curriculum development should in this connection involve the training institutions,
national and county governments as well as professional associations. The Kenya
School of Government should be identified as critical to continuous capacity building
in county governments. The current training policy in the public service should
continue to apply in the county service with adaptation aimed at addressing county-
specific capacity building requirements.
11.5 CONCLUSIONS
Based on the foregoing observations, there is a clear need for the following:
1. Drafting of legislation of a County Public Service bill to provide for staffing of
county governments as provided for under Article 235.
2. Audit of the existing human and technical capacities in the Public Service
disaggregated into different cadres to clearly understand the number of
employees and the skills available in the civil service, local authorities, state
corporations and regional bodies; facilitate re-distribution and deployment of
staff to counties. An additional objective will be to dispel fears and anxiety of
staff retrenchment.
3. Imposition of an immediate embargo on non essential employment in the
entire public service to facilitate deployment of existing capacity and avoid
staff retrenchment once the counties are operational; avoid overstaffing
through unscrupulous and supply-driven recruitment during the transition
period.
4. Existing terms and conditions of service for both the national and county staff
to remain unchanged until a framework for harmonising terms and conditions
of service is in place.
5. Develop a Capacity Building Framework that identifies human resource and
institutional capacity gaps and specific interventions especially on; training
programmes, optimal staffing; financial requirements, physical infrastructure
(office facilities etc). This will be aimed at equipping identified county staff

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with skills necessary to deliver functions at the county government level and
avoid overwhelming counties with responsibilities they are unable to carry out.
6. Undertake institutional capability assessment for Kenya Institute of
Administration (KIA) and all the Government Training Institutes to determine
their readiness to effectively implement training and capacity building
programmes for transforming the public service.
7. Develop and implement training programmes that target the political
leadership, Permanent Secretaries, Chief Executive Officers of state
corporations and Heads of department on legal and policy implications of the
constitution.
8. To facilitate cooperation between the various levels of Government, prepare a
reporting system that would enhance the co-ordination of all public service
staff in the country.
9. Develop guidelines on the development of organizational structures and staff
establishment to be used by county governments consistent with the
distribution of functions for both national and county governments at the
county level. This will assist county governments in having an initial
framework for the establishment and abolition of offices.
10. Develop a phased implementation Plan based on the timelines stipulated in
the constitution.

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12 COUNTY GOVERNMENT FINANCIAL RESOURCES
AND THEIR MANAGEMENT
12.1 INTRODUCTION
12.1.1 Fiscal Decentralization Conceptual Framework
Governments everywhere are decentralising substantial political, administrative and
financial powers to Sub-National Governments with a view to improve access,
efficiency and responsiveness of service delivery, promote participation and empower
citizens to demand accountability and performance. To achieve these objectives,
requires the devolution not only of functions but also power to make policy and
operational decision regarding revenue raising and spending priorities. It also
requires appropriate and adequate operating systems and procedures and effective
mechanisms for citizen participation. Most importantly it requires sufficient and
reliable resources for service provision.
Fiscal decentralisation refers to the financial aspects of devolution from national to
sub-national government. It involves the transfer some responsibilities for
expenditures and revenues to sub-national levels of government. Fiscal
decentralisation covers two interrelated issues. Firstly, the division of expenditure
responsibilities and revenue sources between the national and sub-national (local)
levels of government and secondly, the level of power and responsibility of sub-
national governments over revenues and expenditure decisions. One important factor
in determining the type of fiscal decentralization is the extent to which sub-national
governments are given autonomy to determine the allocation of their expenditures
and their ability to raise own revenue.
The rationale for fiscal decentralisation lies in its potential to enhance the ability of
sub-national governments to plan, prioritize, and use public resources to deliver
public services and infrastructure in response to local needs. A successful fiscal
decentralisation system therefore, will be one in which people have greater access to
adequate and relevant services that satisfy local needs and preferences, which have
been articulated through a mechanism that promotes popular participation; leverages
local knowledge and resources to enhance cost effectiveness in service and
sustainability of local development projects.
Fiscal decentralization in its usual application involves the allocation of expenditure
and revenue assignments between central government and devolved levels of
government. This usually takes the form of assignment of functions and the sources
of revenues for each level of government being explicitly specified in the Constitution
or by legal statute. The legal framework would also define the level of autonomy for
local governments to make their own spending and revenue decisions. Traditional
discourse on fiscal decentralization, however rarely include areas of financial

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management which in reality are key to the success of devolution. Figure 12-1 gives a
graphical representation of fiscal decentralisation and in particular as it anticipated
by the CoK 2010.
Figure 12.1: Fiscal Decentralisation Conceptual Framework

The treatment of fiscal decentralization in this chapter therefore goes beyond the
traditional processes that underpin fiscal management. One innovative element of
the framework is a proposal for a legal requirement for public participation in the
planning and budget process, especially in the formulation and implementation of
county budgets. This requirement is in line with the Constitution and aims to
improve accountability in the use of resources and ownership of development
planning at the local level.
12.1.2 Principles of Public Finance
The following principles should guide public finance management in the county
governments (Article 201):
a. openness, accountability and public participation in financial matters - The
County Legislative Assembly and the public are provided with relevant,
reliable and timely financial and related non-financial information and reports
so they can be well informed of the use and management of public funds.
b. promotion of an equitable society by sharing the burden of taxation fairly;

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c. sharing of county revenues in an equitable manner;
d. promotion of equitable development in county governments;
e. special allocations and provisions for marginalized groups and areas;
f. ensuring the burdens and benefits of the use of resources and public
borrowing in a county governments is shared equitably between present and
future generations;
g. prudent and responsible use, management and accounting of county finances-
Public funds are managed with prudence and integrity, assets are safeguarded
and resources are used effectively, efficiently and economically to achieve
county objectives and effective and efficient systems of internal control are in
place, to ensure that the income and physical assets are safeguarded against
misuse, damage, loss or theft.
h. clear fiscal reporting of county finances- There are clear accountabilities for
financial management, which provide assurance to the County Legislative
Assembly regarding the effective use of public funds and the results achieved.
These will be the guiding posts as policy and institutional structures that will buttress
the management of public resources by counties are designed in this chapter. Legal
and regulatory frameworks to guide financial management in counties will also be
recommended.
12.2 REVENUE
12.2.1 Inter-Governmental transfers
The Constitution establishes County governments as independent entities with both
executive and legislative powers. The executive is responsible for specific functions
assigned by Article 186 and the Fourth Schedule of the Constitution. In performing
the assigned functions counties will utilise resources from intergovernmental
transfers, County revenues (own resources) and borrowing.
This section analyses revenue transfers from the national government to county
governments as provided by the COK, 2010. It proposes mechanisms for ensuring
that intergovernmental transfers are equitably shared between national and county
governments and among county governments. This is important because revenue
assignments must ensure that the principle of finance-follow-function applies.
Ideally county governments should meet their expenditure responsibilities through
locally generated revenues. As widely accepted this would align the benefits and costs
of delivery of services
142
; and in particular it would be in line with the subsidiarity
principle
143
. However, this ideal situation does not even apply in many developed
countries and so local governments still rely on revenue sharing with national
governments. The reason behind this is the narrow revenue base for county
governments, especially where national governments assign themselves major tax
sources and where expenditure responsibilities are assigned to local governments

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without corresponding finances. This problem may be complicated in situations
where county governments compete for investments through fiscal incentives, thus
triggering a race to the bottom in tax reductions leading to diminishing own
revenues.
12.2.2 The Principle of Funds Must Follow and Match Functions
The constitution provides that County Governments shall have reliable, stable and
predictable sources and allocations of revenue to enable them to effectively perform
their constitutional functions and to deliver services within their jurisdictions (Article
175) Article 203(1) (d) (j). The sources of such revenues and allocations include
equitably shared national revenues, own revenues raised by respective counties,
conditional and unconditional grants from the National Government, loans from the
money and capital markets and grants from external agencies and local institutions.
The supreme law also stipulates that if a function or power is transferred from a
government at one level to a government at the other level, arrangements shall be put
in place to ensure that the resources necessary for the performance of the function or
exercise of the power are transferred 187(2)(a). The foregoing provides the
constitutional basis and rationale for the principle of funds must follow and match
functions. This principle should therefore be provided under both policy and
legislation and implemented to avoid mismatch between functional responsibilities
and availability of resources to Counties. Observance of the same would also provide
a basis for planning and institutional accountability.
12.2.2.1 Revenues for county governments
The Constitution provides for intergovernmental transfers that include
General Purpose/ Block Transfers
Equalisation Grant
Conditional grants
Unconditional Grants
Since decentralised funds have in recent times accounted for a substantial share of
transfers and have played an important role in financing development projects at the
local level it is important to examine their role under the new dispensation.
Allocation of revenues either between the national government and county
governments or among county governments must be on the basis of the following
principles set out in Article 203(1) of the Constitution:
a. the national interest;
b. any provision that must be made in respect of the public debt and other
national obligations;
c. the needs of the national government, determined by objective criteria;

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d. the need to ensure that county governments are able to perform the functions
allocated to them;
e. the fiscal capacity and efficiency of county governments;
f. developmental and other needs of counties;
g. economic disparities within and among counties and the need to remedy them;
h. the need for affirmative action in respect of disadvantaged areas and groups;
i. the need for economic optimisation of each county and to provide incentives
for each county to optimise its capacity to raise revenue;
j. the desirability of stable and predictable allocations of revenue; and
k. the need for flexibility in responding to emergencies and other temporary
needs, based on similar objective criteria.
In summary these principles require that national interest be taken into
consideration in the allocation of national revenues and the determination of
financial requirements by the national government must be on objective basis. The
allocations must enable the counties to deliver on their assigned functions, for the
purpose of promoting development, reducing economic inequality among counties
and uplifting the living conditions of marginalised areas and groups. While the
allocation of revenues must pay attention to the efficiency of county governments, the
allocations must be stable and predictable and should provide sufficient flexibility for
emergency needs. The allocation must also provide incentives to counties to mobilize
own revenues.
12.2.2.2 Sharing of National Revenue
Article 203(2) provides that revenue raised nationally will be shared equitably and
that county governments shall be allocated not less than 15 per cent of the revenue.
Three issues arise here. Firstly, the definition of national revenue should be clarified.
The budget estimates for 2112/2013 fiscal year contained in the Budget Policy
Statement, 2011 show that vertical allocations to counties and the Equalisation Fund
have been calculated using ordinary revenues. Since allocations are made from
audited accounts revenue raised nationally could in addition include grants and
appropriations in aid collected by ministries and departments as this would be the
most appropriate measure of allocation. Secondly, the Constitution only provides for
minimum vertical allocations to counties. In working out the exact allocations the
finance-must follow-functions principle must be applied so that the exact amount
of resources required by counties to deliver on the functions are established. This
requires that accurate costing of functions must be made and documented so that as
functions are transferred the formula is adjusted accordingly. Thirdly, the formula for
horizontal revenue allocations among counties is not provided by the Constitution.
This task, including the basis for vertical allocation of revenues is assigned to the
Revenue Allocation Committee (CRA) under Article 216(1).

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The latter issue, especially the efficacy of CRAs recommendations on the sharing of
revenue require careful analysis. This is particularly important considering that
Article 216(5) requires CRA to submit its recommendations to the Senate, the
National Assembly, the national executive, the County Assembly and the county
executive. Although CRA does not allocate revenue, but recommends the Constitution
does not specify how the recommendations are to be processed yet it anticipates
variations from the recommended allocations (Article218 (2c)). It is proposed that
this lacuna can be cured by a legislation that provides a mechanism and process in
which the six concerned institutions can reach an agreement on annual revenue
allocations. It should also provide details on how Senates resolutions on the basis for
horizontal allocations once every five years according to Article 217 will be developed
and agreed on.
12.2.2.3 Vertical Revenue Sharing
The first major step in implementation of an intergovernmental fiscal transfer system
is to determine the vertical allocation of resources: what should the size of the
transfer pool be? This begs a number of questions chief among them: how do we
know what an adequate amount of funding for county governments is? Secondly how
can policy makers come up with a funding rule that would ensure the stability and
predictability of the transfers? A taxonomy of intergovernmental transfers developed
by Roy Bahl and Johannes Linn (1992) concludes that there are three common
approaches to determining the
size of the total grant pool (i.e.,
the vertical dimension). The
total amount of resources to be
allocated may be determined
(i) as a share of central
government revenue, (ii) on an
ad-hoc basis, or (iii) it may be
determined on a basis of cost
reimbursement. Most countries
use one or more of these three
methods.
As already noted, Article
203(2) provides that transfers
to county governments will be
not less than 15% of the
revenue raised nationally. The revenue allocations to county governments for the
2012/13 and 2013/14 as provided in the Budget Policy Statement of 2011 are
estimated on the basis of the not less than 15 per-cent rule. The Government
recognises that the projections will have to be revised on the basis of the
ON PUBLIC FINANCE MANAGEMENT

From the county consultations, majority of the
participants were of the view that the
principles of public finance management
should consider national interest, Population
density of a county, Vastness of the county,
Poverty index, Fiscal capacity of the county to
manage the funds, presence of a county
development plans, marginalization and the
contribution of the county to national
government in terms collection of taxes

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recommendations of Commission on Revenue Allocation (CRA). It is also
acknowledged that the allocations are subject to appropriate costing of the assigned
functions before being reflected in the 2012/13 MTEF budget. In general it is evident
that the budgetary realignment that has to follow the devolution of functions to
counties will have to be accommodated by rationalisation of government ministries
and departments. This reality must disabuse those who think that county
governments are glorified local governments. The implication of the costing of
assigned functions can be understood by analysing how resources are allocated under
the medium term expenditure framework (MTEF) system. It requires Ministries
clustered around nine (9) groups to bid for resources on the basis of priorities aligned
to Vision 2030 and the Medium Term Plan, but in reality budgetary allocations to
ministries have not radically changed over the years. This is because a large share of
the national budget finances recurrent expenditures leaving development
expenditure to be almost exclusively financed by external resources and domestic
borrowing.
This pattern of expenditure especially with regard to development finance is not
tenable for counties because unlike the national government they will have limited
access to external resources and domestic borrowing. This is why it is proposed that
as part of addressing the problem, ministries and departments should in detail
document and cost the functions they intend to devolve to the counties. This will
identify human, financial and infrastructural resources required by counties to
perform their assigned functions. The costing of these requirements will provide the
basis for estimating the expenditure needs of counties, and ultimately the total
national revenues to be shared vertically. The process will at the same time assist
ministries to redefine mandates and restructure their operations for effective delivery
of national functions. This will invariably lead to shedding of excess staff that must be
either absorbed by the counties or retrenched
12.2.2.4 Horizontal Revenue Sharing
144

After agreement is reached on the total amount of resources to be allocated to
counties, the next and probably more difficult task is to agree on the formula for
equitable allocation of these resources to each of the 47 counties. The principle that
should underpin this process is that each county should be allocated resources that
would match its expenditure needs. This will ideally be the difference between the
expenditure needs and the resources they can raise on their own by way of taxes, fees
and other charges. As already noted Article 216(5) provides that the Revenue
Allocation Commission will recommend the formula for horizontal revenue sharing.
A formula uses some objective, quantitative criteria to allocate the pool of revenues
among the county governments. The use of a formula creates a sense of fairness in
that all stakeholders know the exact criteria by which distributions are made, and

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there is flexibility in that distributions may change as the needs for public
expenditures change. The formula-based mechanisms should ensure that the
horizontal allocation of resources among counties is consistent with the countrys
policy objectives on devolution. The development of the formula-based allocations
should be guided by the following generally accepted principles:
o Provide revenue adequacy: A transfer formula should provide a source of
adequate resources to the county governments to perform their mandated
functions
o Enhancing equity and fairness: The transfer formula should support a fair
allocation of resources.
o Stability: Transfers should be provided in a predictable manner
o Simplicity and transparency: Transfer formulas should be simple and
transparent,
o Incentive compatibility: should not create negative incentives for local
revenue mobilization, and should not induce inefficient expenditure choices.
o Focus on service delivery: Transfer formulas should focus on the demand
(clients or outputs) rather than the supply (inputs and infrastructure)
o Avoid equal shares: Reliance on the equal shares principle as a major
allocation factor should be avoided in the design of an allocation formula.
o Respect the Pareto Principle
145
: This means that while the allocation
mechanism would favour marginalised areas and communities in the effort to
bring them closer to the other communities, care should be taken to avoid
making these other communities worse off.
In determining the appropriate allocation factors to be used in the formula, the CRA
should consider the following:
o Accuracy: The variable should accurately reflect the specific characteristics and
should be statistically sound.
o Regularly updated: The variable should be regularly updated in the future.
o Independent source: The variable should come from an independent source
respected by all stakeholders
o Free of local manipulation: The variable should be drawn from a source that
cannot be manipulated by locally (unless the central government has an
adequate capacity to monitor and verify locally reported statistics).
o Reflect needs or demands: The variable should reflect needs or demands for
public goods

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The stakeholders engaged during the county consultations were of the view that the
transfers should be used to promote balanced development. The specific views
emphasise the equity role of horizontal revenue sharing. They proposed that the
allocation criteria should consider factors such as population, poverty, level of
development, number of districts or constituencies, historical marginalisation and
injustices, capacity to manage resources and special needs of counties. On the other
hand, there were proposals that allocations should take into account the potential of
local economy, contribution to national tax base and natural endowments. Some of
these views are in line with best practices applied in designing the formulae for
revenue allocation.
One of the common revenue sharing
formulae that are used in Kenya is the
Constituency Development Fund. Under
this formula 75 per cent of the funds are
shared out equally among all
constituencies, leaving the remainder to be
allocated on the basis of poverty index.
Population would best represent the needs
counties and would also be a simple,
objective and transparent indictor for
revenue sharing. The problem with this indicator is that by sharing out a large
portion equally among counties it would negate the principle of equitable sharing of
revenues espoused by the Constitution.
12.2.2.5 Equalisation Fund
The Constitution (Article 204) establishes the Equalisation Fund into which 0.5% of
revenue collected by the national government is paid every year initially for a twenty
year period. Monies in the Fund will be used to uplift the quality of basic services
such as water, roads, electricity and health in marginalised areas to levels enjoyed by
the rest of the country.
The Fund could through direct expenditures by the national government or as
conditional grants to counties.
Article 216(4) provides that CRA shall on a regular basis determine, publish and
review policy for setting the criteria for identifying marginalised areas. Establishing
marginalised areas is not going to be an easy task, but one method of doing so is
through comparison of service delivery outcomes. An example could be to treat areas
where access or service delivery outcomes fall below some level of national average as
marginalised. Some of the indicator outcomes that could be used are percentage of
population with access to clean water; percentages of bitumen or earth roads;
households with access to electricity; and, health indicators such as immunisation
BOX: 12.2: COUNTY VISIT
SUBMISSIONS ON CRITERIA FOR
EQUALISATION FUND

poverty index
population density
size of the county
levels of development
level of service delivery
human development indicators
historical injustices

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coverage, infant mortality,
maternal mortality or
distance to the nearest
health centre. Geographic
information system (GIS)
data on these indicators
could be plotted on the map
of Kenya to determine the
marginalised areas.
It is to be noted that the
allocations to the Fund is
going to be miniscule when
compared to the expected
expenditure needs. This will
call for prioritization of
expenditures and a formula
for allocation of funds that will be agreeable to the determined areas. Box 12.2 shows
the variables that were proposed by the stakeholders for inclusion in the formula.
Ideally, because of the limited resources expected from the Equalisation Fund the
national government and county governments should work together in identifying
priorities to benefit from the Fund. Alternatively the national government could
provide conditional grants to county governments, but allow them to identify
priorities as long as they are within agreed sectors. Either way the formula for
allotting revenues must place greater weight inputs that guarantee the most desirable
outcomes. Where resources from the Fund are used to finance infrastructure
development in counties ownership of the infrastructure must be agreed at the outset
to avoid poor maintenance in the future. This problem could be addressed by
allowing the county governments to be involved in the identification and
implementation of the projects. The projects should also be handed over to the
counties immediately after completion.
12.2.2.6 Conditional and Unconditional Grants
County governments may be given additional allocations from the national
governments share of revenue, either conditionally or unconditionally (Article 202).
Conditional grants are moneys allocated by the national government to a county
government for the funding of specific projects and programs. The use of such money
should be solely for the purpose for which it is allocated. On the other hand,
unconditional grants are moneys allocated by the national government to the county
government without reservations or conditions imposed regarding the use and there
CONDITIONAL AND UNCONDITIONAL FUNDS

From the county consultations, participants views were
that the sharing of conditional and unconditional fund
should be through public participation and that projects
funded by such funds should be targeted and prioritized.
Other views expressed for consideration were:
Development of regulations on use and management
of such fund,
Resources endowment of the county
Have a strategic plan and a long term development
plan
An affirmative action for the marginalized groups and
regions
Such finds may be used to cater for calamities and
disasters

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are no set limits on the subsequent actions. A county government can use such funds
to finance any of its programs in its annual budget.
Conditional grants include the Equalization Fund provided under Article 204 of the
constitution to finance basic services such as water, roads, health facilities and
electricity to marginalized areas. The Contingency Fund established under Article
208 to cater for urgent and unforeseen needs for which there is no other authority or
provision can also be categorized as a conditional grant. Financial allocation of such
grants shall be guided by the criteria for equitable share of national revenue outlined
under Article 203 including the:
a. need to ensure that county governments are able to perform the functions
allocated to them;
b. Promotion of national interest ;
c. Need to make a provision in respect of the county public debt and other
financial obligations;
d. economic disparities within and among the counties, and the need to remedy
them;
e. the need for affirmative action in respect of disadvantaged areas and groups;
f. need for economic optimization of each county;
g. the need to implement economic and social rights
h. need to provide incentives for counties to optimize their capacity to raise
revenue; and
i. fiscal capacity and efficiency of county governments.
Policy and legislation governing the equitable share of national revenues and the
allocation of conditional and unconditional should provide for safeguards to ensure
objectivity, equity, transparency and accountability in the allocation and application
of such grants. Application of the principles for equitable share of national revenues
should however take cognizance of the need to provide incentives for counties that
contribute significant proportions of the Nations wealth and GDP. This is informed
by the wisdom encapsulated in the idiom of not killing the goose that lays the golden
eggs granted considerable amounts of the national tax revenues would be generated
and collected from institutions and persons residing in such counties. Some of the
aspects that should guide the allocation of such funds include the poverty level of the
county, the need to restore infrastructure destroyed during calamities and disasters
and the need to catalyse development socio-economic initiatives in a county; among
others.
The principles of public finance and devolution should also apply in the use of such
funds. Financial management mechanisms such as requirements for detailed
proposals with clear objectives and goals for the use of funds, prioritization of
projects to be funded within the budgets and strategic plans of counties should be

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BOX 12.5: COUNTY SUBMISSIONS ON DECENTRALISED
FUNDS

Communities felt that devolved funds have transformed lives in the
rural areas and recommended that the government should continue
disbursing them. However, they suggested the need to establish a
central office within the county to coordinate the use of the funds to
avoid duplication of projects and uncoordinated activities. They also
indicated that devolved funds should not be directly managed by
politicians and should only play an oversight role
Youth and women funds be brought to the county level to
enhance accessibility of the funds since most people at the
county level have no information regarding the funds
For transparency and accountability in the use of the funds, it
should be more participatory
The offices of KACC (Ethics and Anti-Corruption commission )
should be devolved to the counties to avoid corruption,
mismanagement of funds and abuse of office for ease of
reporting, quick investigation and action
part of the framework for
evaluating requests for such funds.
The need to finance strategic
county and inter-county projects
and programmes with
demonstrable huge regional and
nationwide positive socio-economic
impacts would be important
consideration. Appropriate controls
and safeguards should also be put
in place to prevent the misuse and
inappropriate application of
moneys appropriated and given as
conditional and unconditional
grants. Some of the controls in question include public participation, monitoring and
evaluation.
12.2.2.7 Decentralised Funds
The transfers to lower jurisdictions have proliferated over the last few years and are
now considered major drivers for local development and service delivery. These funds
are shown in Box 12.4, while their importance is evident from the views expressed on
the matter by the stakeholders during the consultations as shown in Box 12.5.
Although not directly provided for by the Constitution in the context of revenue
sharing, stakeholders were unanimous that devolved funds should continue to be
provided by the national
government to counties,
but to be managed by the
county executive. The
funds while considered
important for development
are believed to have been
misused by politicians and
this informs the call for
their retention under the
management of county
governments.
Since devolved funds are
transfers to sub-national
governments to finance
functions that would
BOX: 12.4: LISTING OF DECENTRALISED
FUNDS IN KENYA
Constituency Development Funds (CDF)
Local Authorities Trust Fund (LATF)
Free Primary Education Fund
Constituency Bursary Fund
Road Maintenance Levy Fund (RMLF)
Youth Enterprise Development Fund
Women Development Fund
Poverty Eradication Loan Fund
Water Services Trust Fund
HIV/AIDS Community Initiative Account
Community Development Trust Fund
Rural Electrification Programme Levy Fund

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otherwise be the responsibility of national governments then among these transfers
only LATF and RMLF would qualify as intergovernmental transfers. These two funds
should therefore be considered as part of the horizontal revenue sharing as they
would finance functions assigned to county governments. This applies to CDF since it
has also been funding functions currently assigned. Those funds which are
conditional in nature, namely Constituency Bursary Fund, Free Primary Education
Fund, Water Services Trust Fund and HIV/AIDS Community Initiative Account could
continue to be channelled to county governments. The other funds, except the Rural
Electrification Programme Levy Fund, are a combination of loan facilities available to
individuals or groups to promote development of rural areas managed by entities of
the national government. There is no compelling reason to change the current system
of managing these funds, except as proposed by the stakeholders. The offices of the
responsible entities could be decentralised to the counties for efficient delivery of
services. The management of rural electrification function could be devolved to
county governments.
12.2.3 County Own Revenues
12.2.3.1 Taxation Revenues
County governments may raise their own revenues by imposing taxes and charging
fees for services. Such taxes should however be raised in a way that does not
prejudice national economic policies, economic activities across county boundaries or
the national mobility of goods, services, capital or labour (Article 209). The taxes and
charges that county governments can impose or charge include:
a. property rates;
b. entertainment taxes; and
c. Any other tax authorized by an Act of Parliament (Article 209 (3c).
In levying taxes, County governments should conform to the constitution and also
adhere to the key principles of taxation including:
a. Equity: the burden of taxation should be shared in accordance with the
respective taxpayers ability to pay.
b. Simplicity, transparency and certainty: the procedure, manner and time for
collection of the tax should be simple and clear, and the amount of tax to be
paid is unambiguous.
c. Effectiveness: the tax base should have the capacity to achieve its basic
objectives.
d. Efficiency and Cost: the time and expenses for tax collection and
administration should be minimal and cost effective.
e. Flexibility: the tax base should be responsive to economic and other
environmental dynamics and is capable of change over time.

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f. Enforceability: the rules pertaining to the tax must be easy to enforce within
the county.
g. Exportability: the tax should have the potential to generate a revenue stream
from non-residents (both individuals and businesses) who enjoy public
services provided by a County.
h. Burden equity: the burdens and benefits of taxation and the use of resultant
resources should be shared fairly and equitably between present and future
generations.
The envisaged legislation on County taxation should cover rating, valuation for
rating, the criteria, steps and procedures for tax or fees calculation, tax collection
procedures and should also specify the sanctions for non-compliance. Rating of
properties in urban areas and cities should be based on both the improved and
unimproved site values. Exemptions for payment of rates should be legislated against
as this will deny Counties substantial revenues. The law should instead require all the
National Government institutions, Independent Commissions, Independent Offices,
State Corporations and Non-State Institutions to budget and pay rates due to their
respective County Governments. This entails the discontinuation of the contribution
in lieu of rates (CILOR) system currently in operation due to its ineffectiveness.
Possible additional taxes that counties can be allowed to levy under the envisaged
legislation include Royalty taxes levied on minerals and other natural resources
within the county. These would include minerals, game reserves, forestry and marine.
Indeed Article 66(2) obliges parliament, while regulating the use of land, to enact
legislation that ensures that investment in property benefit local communities and
their economies.
Historically, communities within certain regions have survived alongside the
resources and have sustainably exploited them for their survival. Any exploitation of
the natural resource will inevitably impact on the lives of the community. Naturally
the environment will be negatively affected and there is need to compensate the
region by supporting ways of mitigating the said effects.
12.2.3.2 Tax Collection in Counties
The constitutional powers and functions on tax revenues administration in counties
have five elements: power to impose tax, tax revenue collection, tax revenues control,
tax expenditure and related controls, and tax revenues reporting and auditing.
Institutional responsibility for tax revenues control, tax expenditure and the
reporting and auditing of tax revenues is assigned to the Controller of Budget, the
County Governments and the Auditor General, respectively. The power to impose tax
is vested in the county government. There is no express constitutional assignment of
the responsibility for tax revenue collection.

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There are four possible options that can be adopted. First, respective county
governments can set up tax collection departments or divisions for the purpose.
Secondly, respective county governments can contract out the task for tax/debt
collection to private organizations. Thirdly, a new County Tax Revenue Authority
could be established to help in the collection of tax revenues for all the 47 counties.
Fourthly, the Kenya Revenue Authority could be empowered through national
legislation to collect tax revenues for all counties.
The challenge for the operationalization of the taxation principles outlined above and
the need to maximize the huge tax revenue potential for all the 47 county
governments dictates that the assignment of the power to collect tax revenues must
be informed by past experiences. Currently the reliance of the first and second
options by local authorities has not led to improvements and cost-effectiveness. The
third option of establishing a county specific tax collection institution will come with
attendant initial capital expenditure and scale economies disadvantages compared to
the fourth option. The comparative advantage of National Governments in the
collection of taxes through legally empowered national agencies is well established in
many country jurisdictions. Local experience has also shown that the involvement of
the Kenya Revenue Authority (KRA) in the collection of land rents and the ceding of
the power to collect water charges and fees to the Nairobi Water and Sewerage
Company Ltd.
It is therefore recommended that the legislation on county financial management or
appropriate sections in the finance chapter in the County Governments Bill/Act
should vest the power for the collection of county taxes to the Kenya Revenue
Authority. The Finance Bill for the 2011/2012 Financial Year can also provide for this
framework pending the enactment of the relevant legislation for county governments.
The KRA Act could also be amended to make KRA a shared institution that serves the
two levels of government. Involvement of KRA in tax collection for all county
governments will have the added advantage of enforcing uniform standards and the
generation of reliable data on county tax revenues that can be used in the
determination of equitable share of national revenue. The use of KRA will result in
economies of scale, lower tax administration costs and enhanced tax revenues.
The constitution requires the two levels of government to cooperate, assist and
support each other in the implementation of legislation governing the powers and
functions of each level of government, including the exchange of information and the
coordination of policies and administration and enhancing capacity Article 6 (2)
Article 189 (1)(b) and (c) Article 189 (2).
12.2.3.3 Fees and Charges
Counties can impose charges and fees for its services and the legislation envisaged
under Article 209 (3) should provide a clear framework of how this can be done. Fees

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and charges that counties can charge include: agricultural cess, livestock fees, house
rents, market rents and fees, single business permits fees, traditional brew permits
fees, service delivery charges, road maintenance levy, parking fees, rent for
conference halls, county parks and related facilities, environmental conservation tax,
anti-dumping taxes, charges and fees from public-private partnerships such as
concessions, management contracts, leases, build-own-operate-transfer (BOOT)
build operate transfer (BOT) and build-own-operate (BOO) schemes; amongst others.
12.2.4 Grants and Donations
County Governments may receive donor grants or aid either from foreign
governments, non-governmental
agencies, corporate institutions,
philanthropists and individuals to
support their social and economic
development programmes. Such
institutions include foreign national
governments, local authorities,
foundations, charities, international
NGOs, private companies, relief and
humanitarian agencies.
Donor aid should be captured and
appropriated as revenue or
appropriations-in-aid in the annual and
forward budgets of County
Governments. Programmes to be funded
by such aid should be developed by the
County Executive and incorporated in
county budgets for consideration and approval by the County Assemblies. The
application and use of donor aid must also be governed by the principles of
transparency, accountability, public participation, equitable development of the
county, including making special provision for marginalized groups. Regulations on
seeking, receipt, budgeting, use and accounting for such funds should be included as
an integral part of the appropriate county financial management legislation. The
national interest, national development priorities, fiscal and monetary policies shall
also be taken into account.
Kenya may make a deliberate effort to establish the Loans Council whose functions
could be expanded to include dealing with matters relating to donor aid and grants
to counties. The inclusiveness and representative nature of the Council will ensure
the letter and spirit of the constitution with regard to observance of the requirement
that the two levels of government are distinct, interdependent and are required to
BOX 12.6: COUNTY VISITS
SUBMISSIONS ON BORROWING AND
GRANTS
A project must be economically viable,
sustainable, and capacity to repay must be
considered as well as the absorption capacity
of the county
The public should participate in identifying
projects to be funded by such funds
National government must set terms and
conditions on loans and grants
There should be consultation between the
county and national government before
seeking for grants and loans
Countys capability in financial management,

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operate on the basis of cooperation and consultation, albeit in a devolved unitary
national framework. Figure 12.2 provides for such council
12.3 BORROWING
County Governments may borrow only with the approval of their respective county
assemblies and if the national government guarantees the loan (Article 212). The
county governments should have the option of borrowing from both the money and
capital markets either externally and internally. Article 213 specifies that legislation
prescribing the terms and conditions under which the national government may
guarantee loans be enacted. Borrowing should be governed by the need for prudence
including ensuring borrowed moneys is used in a responsible way. The overal
institutional structure for the loans and grants systems is shown in figure 12-2 below
12.3.1 Internal and External Borrowing
The terms and conditions for consideration of loan guarantees by the National
Government may include all or the bulk of the following aspects:
a. Written proof that the intended borrowing has been approved by the County
Assembly of the county seeking the loan;
b. Written proof that the intended borrowing has been included in the budgets of
the county;
c. Proof of public participation in contributing to the budget and loan proposals
of the county;
d. Ability of the subject capital project to generate the necessary cash flows to
repay the loan;
e. Leadership qualities and management capacity of the County Executive;
f. Financial management and probity of the county;
g. Application, management and servicing of previous guaranteed loans;
h. Proportion of the total loan portfolio of the county relative to both its annual
budget and GDP;
i. Level of conditional and unconditional grants by the National Government;
j. Nature and implementation time frame of the project for which the loan is
being sought;
k. Quantified investment/project potential for wealth, employment and poverty
reduction;
l. Project/investment potential for local and national economic growth and
development;
m. Credit rating of the county;
n. Compliance with the requirements for borrowing from the capital markets;
o. Fiscal state of the county.
Details on loan size, grace period, repayment term, interest rate, commitment fees,
administration charges, loan signatories, disbursements, default penalties and other

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related pertinent aspects should be specified as substantive clauses in the relevant
loan documents and covenants.
In addition to above conditions external borrowing from international financial
institutions, bilateral, multilateral and other external sources must, also be clear on
the following aspects:
a. role of National Government departments in facilitating county governments;
b. conditions for loan effectiveness;
c. loan disbursement procedures;
d. responsibility for the assumption of interest and foreign exchange risks;
e. limitations on the amounts that county governments can borrow from external
sources;
f. conditions for national government bailouts to county governments;
g. indemnity to the National government for costs incurred for the takeover and
servicing of non-performing loans of defaulting county governments;
12.3.2 Loan Guarantees
Consideration of loans by the National Government should be efficient, transparent
and accountable. Assessment and approval of loan guarantees for Counties must also
be based on the national values and principles of public service, leadership and
integrity that are clearly anchored in the service charters of the relevant and
responsible National Government departments. The roles of national departments
and officials responsible for loan guarantees must be clearly set out in regulations
that specify the requirements and procedure for the consideration and approval of
loans. The regulations in question should be developed as an integral component of
the anticipated legislation.
Loan guarantee applications must, for example, be acknowledged in writing within a
week. The acknowledging letter must also confirm the receipt of all the required
documents that need to be submitted and the time within which a decision on the
loan guarantee will be communicated. Sanctions for unreasonable delay or refusal to
grant approvals as well as appeals and review mechanisms for related decisions need
also to be specified in the envisaged policy and legislation. Regulations outlining the
procedure for the consideration and approval of loans should be developed as an
integral component of the anticipated legislation.
12.3.3 Institutional Framework for Coordination of Borrowing and Grants
In order to ensure effective administration, monitoring and coordination of both
internal and external borrowing and the administration of grants Kenya may draw
lessons from the Australian experience and consider the establishment and provision
of a 15 member Loans and Grants Council for Kenya under the legislation governing
borrowing, loan guarantees and grants. Creation of such an agency will enable the

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country to avoid a situation whereby the problems or failure of non-performing
counties adversely affect the rating and creditworthiness of other county
governments and even that of the national government and other state organs. In
Australia, for example, the need to coordinate public debt and to stem loss of
creditworthiness arising from external borrowing led to the legal provision for the
coordination of public borrowing by an intergovernmental Loans Council with power
to make decisions binding on both levels of government. The functions of the Loans
and Grants Council may include:
a. regulation of internal and external borrowing by the National Government,
county governments and other state organs;
b. policy review and monitoring of the administration of national governments
grants to county governments;
c. policy review and monitoring of the debt management by the national
government, county governments and other state organs;
d. regulation of the procedures for the seeking, receipt and application and use of
donor grants by the National Government, county governments and other
state organs;
e. setting limits and ceilings on the county governments powers to borrow;
f. administration of a sinking fund established to help counties to redeem debt to
improve their liquidity and creditworthiness;
g. approval of grants to county governments to help them to meet loan interest
payments or loans and sinking fund contributions.
The role of the Loans and Grants Council in the regulation of borrowing would also
complement the institutional framework for macroeconomic policy and management.
The Membership of the Loans Council and Grants for Kenya could include:
a. Secretary responsible for Finance as the Chairperson;
b. Secretary responsible for Devolved Governments;
c. Secretary responsible for Foreign Affairs;
d. Chairperson of the Association for County Governors (or its equivalent);
e. Chairperson of the body representing county assemblies;
f. Executive committee member responsible for finance for the Capital City;
g. five members who are county executive committee members responsible for
finance in their respective county governments, each elected to represent a
cluster of counties constituted in a manner that reflects the diversity of the of
Kenya Nation;
h. four members each nominated by the respective apex organizations
representing county assembly workers, the private sector, faith-based
institutions and civil society organizations.

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A Secretariat for the Loans and Grants Council headed by a person at the level of
Principal Secretary who is answerable to the Secretary responsible for finance should
be established to deal with the management and administration of issues pertaining
to loans, guarantees, public debt management and grants. The Council can be granted
the power to make its own rules of operation, subject to the public participation
governance principle.
Figure 12.2: Institutional Framework for Coordination of Borrowing
and Donor Grants

12.4 PUBLIC DEBT MANAGEMENT IN COUNTIES
Over time, it is anticipated the combined and individual debt portfolios of county
governments will be substantial. More often than not, such institutional debts contain
complex and risky financial elements that can generate substantial risk to the county
government's balance sheets as well the countrys financial stability. It is critical for
county governments to be proactive through the formulation and implementation of
credible debt management strategies in order to reduce excessive levels of debt and to
ensure public sector indebtedness is maintained on a sustainable path. Public debt
management is the process of establishing and implementing a strategy and plan for
managing a county government's debt in order to raise the required amount of
funding and the achievement of desired risk, cost objectives and goals.

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From a broader macroeconomic context for public policy, governments should seek
to ensure that both the level and rate of growth in their public debt is fundamentally
sustainable, and can be serviced under a wide range of circumstances while meeting
cost and risk objectives. The public debt management policy of county governments
can be used as a mechanism for meeting other sovereign debt management goals the
national government may have set, such as developing and maintaining an efficient
market for government securities and to reduce both the countys and countrys
vulnerability to national/international financial shocks. Examples of indicators that
address the issue of debt sustainability include the public sector debt service ratio,
and ratios of public debt to GDP and to tax revenue. County-level public debt
managers should ensure that national government fiscal authorities are aware of the
impact of the county government financing requirements and debt levels on
borrowing costs.
12.4.1 Objectives of Public Debt Management
The objectives of public debt management in counties include:
a. to ensure that the county governments financing needs and its payment
obligations are met at the lowest possible cost over the medium to long run,
consistent with a prudent degree of risk;
b. Support the public finance strategy by assuring that the execution of the public
debt policy in the medium and long term will take place in an environment of
public debt sustainability;
c. Foster a healthy development of the county financial system and improve the
efficiency of the local debt market; and
d. Promote transparency and the modernization of the statistical information
related to public debt
12.4.2 Principles and Techniques for Public Debt Management
Principles and techniques for public debt management that county governments
should embrace include:
a. Transparency and accountability: financial openness and assurances of
integrity by agencies responsible for debtmanagement;
b. Legal institutional framework: the public debt management governance should
clarify the authority to borrow and to issue newdebt, invest, and undertake
transactions on the County Governments behalf;
c. Debt management strategy: the risks inherent in the County Governments
debt structure should be carefully monitored and evaluated. These risks should
be mitigated to the extent feasible by modifying the debt structure, taking into
account the cost of doing so;

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d. Risk management framework: a framework should be developed to enable
debt managers to identify and manage the trade-offs between expected cost
and risk in the county government debt portfolio;
e. Development and Maintenance of an Efficient Market for Government
Securities: in order to minimize cost and risk of public debt over the medium
to long run, debt managers should ensure that their policies and operations are
consistent with the development of an efficient government securities market.
12.4.3 Framework for County Public Debt Management
A clear legal and institutional framework is necessary in each county for managing
issues relating to county public sector borrowing and debt management. Legislation
on sovereign borrowing sets out the authority to borrow and delegate power from the
body within the county which has the financial authority to the body that does the
borrowing on behalf of the county;
a. Functional organizational structure:the functional organization for public debt
management should correspond to the spheres of debt management aspects
that are identified;
b. Coordination with fiscal and monetary policies: it is important to ensure
effective coordination of county debt management initiatives with national
fiscal and monetary policies while maintaining separate responsibility for each
is an important aspect of debt management;
c. Regulations: It is essential to formulate regulations and procedures which set
out the explicit roles of the departments of state responsible for finance,
county governments, foreign affairs, the central bank, capital markets
authority, other agencies involved in loan operations and management at all
stages of the loan cycle;
d. Issues of guarantees: in the case of a payment guarantee, the guarantor takes
on an obligation to pay some of the entire principal amount of the debt and
accrued interest if the borrower defaults. So the development and adoption of
guidelines for the administration and management of guarantees at both the
national and county levels is an important aspect of county public debt
management;
e. On-lending arrangements: Often other public sector borrowers seek the
assistance of the government when directborrowing is difficult or not possible.
12.5 PLANNING AND BUDGETING
12.5.1 County Planning and Budgeting Linkages
The relevant Constitutional provisions related to county governments planning, and
budgeting are Articles 185, 220 and the Fourth Schedule on functions. Article 185 (4)
provides for the county assembly to approve plans and policies for the management

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and exploitation of the countys resources; and the development and management of
its infrastructure and institutions. This is in accordance with the functions provided
in the Fourth schedule, function 2 (8) which state that every county government is
responsible for the County Planning and Development.
This means that the county governments will require to anchor their development
plans to the national plans. The planning cycle will also need to be compliant with the
national development plans as shown in Figure 12.5.
Figure 12.3: Planning & Budgeting Framework

The government is currently implementing the Vision 2030 whose aim is to
transform Kenya into a newly industrializing middle income country by the year
2030. The vision is implemented through successful five year medium term plans
coordinated by the ministry in charge of planning. The ministry normally organizes
stakeholders fora for development of the national development plans coordinated
from the regions to the national level. The regional outreach is normally to the
districts where the various stakeholders, including private sector, civil societies, faith
based organisations, and other organized and individuals gather to give inputs which
would feed into the national plans.
The above planning process is participatory and consultative to some extent as it has
been bringing together stakeholders, to create a better understanding of issues, to
agree on priorities and to seek local solutions built around broad-based consensus.

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This process seems in
congruence with the views of
the Kenyans based on the
consultations as indicated in
the Box 12.7. However it will
be important to review the
process against the good
principles of participation to
ensure that there is full
participation of the Kenyans
as provided for in the CoK
2010.
Currently there is no law
governing the process of
planning, though there are
proposals to legislate it. The
work towards this
development will need to be reviewed and ensure that it is compliant with the
provisions of the CoK 2010 as also prescribed in Article 220.
Article 220 (1) requires both governments develop annual budgets containing the
annual estimates of revenue and expenditure, differentiating between recurrent and
development expenditure; proposals for financing any anticipated deficit for the
period to which they apply; and proposals regarding borrowing and other forms of
public liability that will increase public debt during the following year.
Article 220 (2) requires a national legislation be enacted to prescribe for the structure
of the development plans and budgets of counties; their tabling in the county
assemblies; and the form and manner of consultation between the national
government and county governments in the process of preparing them. This
legislation among other things will contain the following:
a. The generally accepted planning and budgeting principles
b. The linkages between the national and county plans and budgets
c. The consultative process which is fully public participative
d. Comprehensive monitoring and evaluations framework
e. Comprehensive provisions for budgetary controls
f. Planning and budgetary cycles and reviews
In addition the law will require to incorporate the ten principles of budgeting
outlined below:
1. Comprehensiveness: The budget must encompass all fiscal operations of
government, i.e. off-budget expenditure and revenue are prohibited.
PLANNING, EXPENDITURE AND REVENUE LINKAGES

During the county consultations the communities raised
various issues which were relevant to planning, expenditure
and revenue linkages, they would want to see implemented
at the county level. The major recommendations by the
Kenyan public they would want to see to ensure sound
budgeting, financial management and planning included the
following:
a) The county governments should consistently develop
their medium and long term plans that will guide them in
development of their counties.
b) There is need to embrace ICT as a tool for planning.
c) The budgeting should be preceded by socio-economic
needs assessment, resource mapping and development
prioritization.
d) Priority should be given to the needs of the people and
that grants whether conditional or non-conditional should
be project targeted

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2. Discipline: Decision-making must be restrained by resource realities over the
medium term; the budget should absorb only those resources necessary to
implement government policies; and budget allocations should be adhered to.
3. Legitimacy: Policy makers, who can change policies during implementation,
must take part in and agree to the original policy.
4. Flexibility: Decisions should be pushed to the point where all relevant
information is available.
5. Predictability: There must be stability in macro and strategic policy, and in the
funding of existing policy.
6. Contestability: All sectors must compete on equal footing for funding during
budget planning and formulation.
7. Honesty: The budget must be derived from unbiased projections of revenue
and expenditure.
8. Information: A medium-term aggregate expenditure baseline against which
the budgetary impact of policy changes can be measured and accurate
information on costs, outputs and outcomes derived should be available.
9. Transparency: Decision makers should have all relevant issues and
information before them when they take decisions and these decisions and
their basis should be communicated to the public.
10. Accountability: Decision makers are responsible for the exercise of the
authority provided to them.
12.5.2 Budget Process
Kenya has over the last 11 years since 2000 been using medium Term Expenditure
Framework (MTEF) budgeting process. MTEF is a broad approach to integrating
policy-making, planning and budgeting over a 3-year period based on policy
priorities. The process is meant to ensure that there is certainty and consistency in
funding for ministries; and adequate measures for enforcing government to stick
within its overall budget (aggregated hard budget constraint), while allowing for
flexibility in expenditures between ministries and programmes.
There are currently five MTEF sectors in Kenya comprising of Physical
Infrastructure; Special Programmes; Human Resource Development; Environment,
Water and Sanitation; and most recent the Governance, Justice, Law and Order
experience however shows that while MTEF can be an effective tool for planning and
budgeting, Kenya is far behind its neighbours in using the tool effectively for
expenditure management. The causes identified were mainly two based on a review
undertaken in 2004 by the developmental partners. The first noted was that the
MTEF process and the annual budget formulation process operated as a parallel
processes rather than an integrated process, with the MTEF process being used more
as a planning instrument than a budgeting instrument. Secondly, the MTEF process
did not specify intersectoral priorities or even priorities within sectors for the

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approval of Government officials or of cabinet. Thus, budgeting in Kenya remains
largely incremental, and significant reallocations of expenditures to high priority
sectors (or within sectors from lower priority to higher priority activities) are not
taking place. Similar findings were noted during the end term review of the GJLOS
146
.
Based on the experiences of many countries, as evidenced from Tanzania and
Uganda, MTEF can be an effective tool to integrate policy with planning and
budgeting. The importance of MTEF is to facilitate the government achieve fiscal
discipline, to allocate expenditures in line with national priorities, to coordinate
donors, and to ensure transparency and accountability.
One tool which has been practiced to achieve the MTEF key factors of fiscal
discipline, to allocate expenditures in line with national priorities, to coordinate
donors, and to ensure transparency and accountability, is the sector-wide approach to
planning (SWAp). SWAp is a process intended to support a locally-owned coherent
sector strategy and expenditure program under Government leadership in a
comprehensive and coordinated manner. It is an approach based on a shared vision
and shared priorities and on a joint commitment to a sector strategy and policy
framework, rather than a financing instrument. The core SWAp framework is shown
in table 12.1 below.
Table 12.1: SWAP Process
Framework Core elements
Policy framework 1. Definition of the national sector framework (what to align to)
2. Partnership principles (common donor policies on how to align)
Planning
framework
1. Sector Investment Plan SIP (tool for prioritisation)
2. Sector Information System performance monitoring
3. Coordination both inter-sectoral and with external partners
Funding framework 1. Channels of funding (ladder of options project, basket, budget support)
2. Financial management (transparency, accountability, value for money)
3. Resource mobilisation (using SWAP to increase funding)
SWAp has so far been implemented to a certain extent in the Governance, Justice,
Laws and Order Sector (GJLOS). Other sectors where SWAp has been tried include
the Water and the Health sectors. Evidence shows that implementation of SWAp in
these three sectors has not appreciated the above principles and as such MTEF has
received criticisms from the various agencies. The important factor is that SWAp is
not a blueprint, but a process that evolves over time depending on context-specific
factors.
Article 201 of the Constitution requires that the public be involved at all levels in
financial matters. Internationally best practices have shown that public participation
is best exercised through the use of the Project Cycle Management (PCM) and
Community Participation (CP) tools. The tools are designed to ensure that
stakeholders are consulted and relevant information is available, so that informed

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decisions can be made at key stages in the life of a project. The use of these tools
enhances the SWAp evolution and at the same time makes the MTEF process more
effective and efficient tool for planning and budgeting.
Figure 12.4: SWAP MTEF Framework

Figure 12.4 shows a graphical representation of the MTEF supported by SWAP and
PCM/CP processes. With the constitution requirement that counties plan and budget
be based on functions and delivery of services, these tools will be the most
appropriate for the purpose. The operationalization of these tools will be spelt out in
the policy and the relevant legislations. The key public participation issue which need
to be captured in the proposed legislation will ensure that the following provisions as
provided in the Constitution of Kenya 2010 are incorporated or referred to in a
separate legal framework.
a. Article 10 to ensure that there are provisions which ensure that national values
and principles of good governance are incorporated.
b. Article 196 to ensure that county assembly conduct its business in an open
manner, and hold its sittings and those of its committees, in public; and
facilitate public participation and involvement in the legislative and other
business of the assembly and its committees.
The proposed county planning and budget legislation will also contain the details to
be published annually in the Appropriation Act as envisaged in Article 224 of the

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Constitution 2010. The Appropriation Act will contain the same details for the
development and recurrent expenditure approved by the County Assembly. Further
the planning and budget legislation will contain the procedure for withdrawal of
funds from the county revenue fund before the assenting of the appropriation Act as
envisaged in Article 222.
Article 223 provides that the national government may spend money over and above
the funds allowed within the Appropriation Act for the financial year. Details of such
expenditure are provided for in the Constitution. This amount should not be more
than 10% of the budget for year unless approved by Parliament. Though the provision
of Article 223 does not mention the county governments it is our proposal that they
should also be allowed to have supplementary appropriations to be drawn from their
revenue funds. The details of such provisions should be included in the county
planning and budget legislation.
12.6 EXPENDITURE CONTROL
12.6.1 Expenditure Controls Framework
Figure 12-5 shows the expenditure control framework, indicating the funds expected
to be withdrawn from the Revenue Fund account and the control mechanism of the
spending.
Article 207 of the constitution provide for the establishment of County Revenue Fund
for each county government, into which all money raised or received by or on behalf
of the county shall be paid except money excluded by an Act of Parliament. The
conditions given for withdrawals from this Fund can only be made it is a charge
against provided for by an Act of Parliament or by legislation of the county, and is
authorized by an appropriation by legislation of the county. Secondly the money can
only be withdrawn from the fund only with the approval of the Controller of Budget.
Article 190 and Article 225 require all the county governments to maintain proper
and adequate financial management systems and to be fully accountable to the public
on the expenditure and utilisation of the funds of the county. This whole process is
graphically explained in the expenditure control framework shown as figure 12-5. The
expected system as explained above in the chart will be as follows:
a. All the county funds as explained in the revenue section above will all be
consolidated in the County Revenue Fund. The fund will contain own revenues
and transfers from the national revenues, grants and borrowings.(Move it to
the revenue fund)
b. The county assemblies will vote for the budget as explained in the last section
and the necessary Appropriations approved to facilitate expenditure by the
various departments of the county.

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c. It is anticipated that the county treasury will seek quarterly approvals from the
Controller of Budget for withdrawals from the revenues fund based on the
needs and functions being undertaken by the various departments.
Figure 12.5: Financial Control Systems in County Governments

d. The treasury will then disburse the funds to the departments for expenditure
as per the appropriation act and the necessary approved project proposals
which informed the original budget. As noted above in the budget section it is
anticipated that the public participation will be part of the evolution of the
budget in accordance with the good principles of project cycle management.
e. In every county there will be the county accountant general within the treasury
who will maintain up to date financial records of all funds withdrawn from the
revenue fund and expenditure incurred as per the appropriation act. Details of
the financial and accounting systems to be maintained in the county are
outlined below.
f. At the expenditure level illustrated in the diagram above, the community will
further be involved in monitoring the project in accordance with the PCM
principles as outlined in the expected PCM regulations,

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BOX 12.7: COUNTY SUBMISSSIONS ON
PLANNING, EXPENDITURE, REVENUE LINKAGES

During the county consultations the communities raised
various issues which were relevant to the planning,
expenditure and revenue linkages, they would want to see
implemented at the county level:
a) The county governments should consistently develop
their medium and long term plans that will guide them
in development of their counties.
b) There is need to embrace ICT as a tool for planning.
c) proposal that county government budgets should
provide for a minimum of 70% development
expenditure, a maximum of 20% personnel
emoluments and a minimum of 10% operation and
maintenance.
d) The budgeting should be preceded by socio-economic
needs assessment, resource mapping and development
prioritization.
e) Priority should be given to the needs of the people and
that grants whether conditional or non-conditional
should be project targeted
f) Grants allocations should be based on sound fiscal
policies and successful past project implementation
g) For a county to receive funds or grants from the
National Government, or have the National
Government guarantee loans, the county should have
established an independent county revenue authority
as supervisory body for management of such funds.
The authority to be composed of community
stakeholders elected but not handpicked by the
governor.
g. Additional controls will
be exercised through the
internal audit function
which is explained in the
section below.
Important control
measure shown in the
chart is the
independence of the
internal audit as it will
require to report to an
independent audit
committee.
12.6.2 Budgetary Controls
Planning and budgeting are key
tools for financial controls
depending on how they are
institutionalized in the county
governance systems.
Article 225 (2) provides that
Parliament shall enact
legislation to ensure both
expenditure control and
transparency in all governments and establish mechanisms to ensure their
implementation.
The public expressed their wish during the county consultation (see the box) that
proper budgetary control mechanisms be implemented to ensure that funds are only
used for the purposes they were budgeted for and that the three Es (efficiency,
effectiveness and economy) of value for money are achieved. SWAp sector framework
provides measures for monitoring and evaluation which constitute one of the
budgetary controls options to achieve expenditure controls. Secondly the principle of
using SWAp process as a budgetary control measure could be enhanced by
incorporating the public participation in monitoring and evaluation through the
PCM/PC systems described below. Article 201 (a) provides for openness,
accountability and public participation in financial matters.

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12.6.2.1 Public Oversight Role
Community participation (PC) has been used to some extent in the local government
sector as a tool for monitoring community based projects developed by the local
authorities. However project cycle management (PCM) as a tool for monitoring and
evaluation has not been practiced in Kenya. Available literature shows that the
combined PCM/CP as a tool for monitoring is very effective in project expenditure
controls.
However despite the introduction of LASDAP incomplete or irrelevant projects,
commonly referred to as white elephants, have been some of the most glaring
symptoms of undelivered services in local authorities in the country. For nearly one
decade, massive efforts have been expended towards the implementation of priority
projects selected through LASDAPs. By 2009 more than Ksh. 35.5 billion had been
spent on projects through the disbursement of LATF funds to Local Authorities in the
past 10 years, with glaringly lack of service delivery from this fund. Project
completion rates in Local Authorities have been dismal despite the enormous amount
of taxpayers money spent.
Many reasons have been advanced for the failure of LASDAP projects in local
authorities. Some of the most commonly cited factors include corruption, lack of
goodwill for LASDAP, lack of capacity in terms of skills and competencies and weak
institutional structures in Local authorities; delay in the disbursement of LATF;
inadequate procurement systems; and bad governance (MoLG 2008). A weak
commitment to implement policies combined with poor service delivery characterizes
many Local Authorities, undermining their ability to successfully complete projects
that can positively impact the lives of poor people within their jurisdictions.
Despite all the above weaknesses and the perceived failure of LASDAP, the major
problem as was established from the lessons learned through the RPRLGSP was lack
of adequate project management systems. The programme proved that if project cycle
management (PCM) and community participation (CP) were adequately
implemented with a well-designed process of monitoring and evaluation, success rate
in project implementation can be very high.
PCM is defined as the application of knowledge, skills, tools and techniques to project
activities, to meet specific scope, time, cost and quality goals of projects147 (Project
Management Institute, 2008). PCM is programmed through a project cycle and this
cycle is a logical flow of various project stages or project components broken down
into a logical sequence of activities. This phase or stage by stage approach stimulates
people to share the same perceptions, speak the same language and use the same
tools and formats to design and implement a project. Typically, the project cycle
comprises seven standard project stages, phases or activities, arranged in a logical
sequence to accomplish a projects goals or objectives, and include:

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OUTSTANDING ISSUES

Before finalization of this section a number of issues
will require to be considered:
1. How is MTEF, SWAp and PCM used in other
countries as planning and budgetary control tools
2. Challenges of MTEF and SWAp operationalization in
Kenya will need to be fully appreciated
3. Need to get Treasury and Ministry of Planning views
on capacity to undertake full implementation of the
tools
Stage 1- policy setting and strategic planning (achieved through the SWAp
process sector policy development)
Stage 2 - project identification (achieved through the SWAp process of sector
planning framework)
Stage 3 - appraisal, prioritisation and selection
Stage 4 - formulation and planning
Stage 5 - contracting and commitment
Stage 6 - implementation, monitoring and midterm evaluation
Stage 7 - final evaluation
The importance of monitoring
demonstrated by RPRLGSP
whereby out of the 65 projects
funded under the PRF, 97% had
their construction completed
and 91%had started operation.
This compares with the Local
Authorities Transfer Fund
(LATF), projects as given by the
National Taxpayers Association
(NTA) of completion rate
estimated at around 45% and an
operation rate of 31% (National Taxpayers Association (NTA) 2009).
12.6.2.2 Recommendations
The following recommendations are proposed to ensure to ensure the planning and
budgeting and revenue linkages are entrenched in the policy and legislations to
provides adequate financial controls:
a. The law to be developed as proposed under Article 225 (2) should incorporate
budgetary controls operations which will facilitate monitoring and evaluation
b. The law should incorporate PCM/CP as tools for monitoring and evaluation
through community participation.
12.6.3 Procurement/ Supply Chain Management
12.6.3.1 Constitutional Provisions and Key Issues in the Current Practice and
Law
The Public Procurement and Disposal Act, 2005 which came into operation on 1st
January, 2007 underplays as its major objective being to establish procedures for
procurement and the disposal of unserviceable, obsolete or surplus stores and
equipment by public entities to maximise economy and efficiency. To achieve this
overall objective the act was expected to promote competition and ensure that

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competitors are treated fairly; to promote the integrity and fairness of those
procedures; to increase transparency and accountability in those procedures; and to
increase public confidence in those procedures. In addition the Act was expected to
be a major catalyst in promotion of local industry and economic development.
The Government of Kenya has been implementing the Public Financial Management
Reform Programme (PFMR), managed by the Public Financial Management Reform
Secretariat in the Ministry of Finance. One of the key pillars of the PFMR is
procurement with the objective to promote transparent and accountable procedures
in this area within the public sector. As part of this reform effort and through the
Public Procurement and Disposal Act 2005, the Directorate of Public Procurement
and Public Procurement Oversight Authority (PPOA) has been set up to implement
procurement reforms. The new legal and policy framework has continued to reform
procurement practices in central and local governments.
However, despite these well-designed procurement reforms and regulations,
malpractices associated with procurement in the public sector are rampant. Some of
the most notable malpractices based on the lessons learned by The Rural Poverty
Reduction and Local Government Support Programme (RPRLGSP) include:
Unjustified needs and priorities
Cost overestimations
Manipulation of technical specifications to favour certain bidders
Poor adherence to tender and bid procedures
Collusion between bidders and LA officials
Lack of objective criteria to evaluate bids
Conflict of interest (some bidding agencies are owned by councillors or staff)
Poor monitoring of the procurement and contracting process
Other problems which have been encountered are delay in procuring of goods and
services due to protracted period set in the act. For example it requires a minimum of
90 days to procure an international related services or goods. Even for local items the
bottlenecks are many to the extent that a basic procurement can take as long as one
month even for items of low value.
The Constitution has provided for some amendments to the Procurement and
Disposal Act. Article 227 provides that when a State organ or any other public entity
contracts for goods or services, it shall do so in accordance with a system that is fair,
equitable, transparent, competitive and cost-effective, which emphasizes some of the
objectives in the current legislation. The Constitution has provided that an Act of
Parliament shall prescribe a framework within which policies relating to procurement
and asset disposal shall be implemented and may provide for all or any of the
following:

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a. categories of preference in the allocation of contracts;
b. the protection or advancement of persons, categories of persons or groups
previously disadvantaged by unfair competition or discrimination;
c. sanctions against contractors that have not performed according to
professionally regulated procedures, contractual agreements or legislation;
and
d. sanctions against persons who have defaulted on their tax obligations, or have
been guilty of corrupt practices or serious violations of fair employment laws
and practices.
The new Constitutional provisions will undoubtedly enhance the involvement of the
Kenyans in supply of goods and services especially where foreigners have benefited
more than the locals. However keys issues like capacity, period of procurement and
other bottlenecks will require to be addressed.
Legal opinion has been sought from legal practitioners to establish if procurement
law can be established for county governments separate from the national
procurement law. Article 227 of the constitution provides that Parliament shall enact
a law to prescribe a framework within which policies relating to procurement and
asset disposal shall be implemented. This means that it is anticipated that the country
will have one unifying law to govern procurement and disposal for the two levels of
government. In our view this is well acceptable as long as the law provides for a
system that is fair, equitable, transparent, competitive and cost-effective.
For these principles to be achieved and maintained the following key proposals are
recommended for either inclusion in the proposed Act of Parliament or in policy
developed to ensure that operations of the procurement is efficient, effective and
provides economy, and more so as a tool for financial controls:
a. The procurement law will require to be amended to incorporate the new
constitutional provisions as indicated above;
b. The thresholds provided in the First schedule of the Regulations need to be
revised periodically to cater for any problems noted in the system
c. There will be need for each of the counties to establish procurement
departments in line with the constitution and the new legislation
d. There is need for capacity building to ensure that there is adequate capacity at
the county level
12.6.4 Role of Controller of Budget
Article 228 of the Constitution provides for the creation of the office of the Controller
of Budget. The function of the office is to oversee the implementation of the budgets
of the national and county governments by authorizing withdrawals from public
funds. The Controller of Budget shall ensure that any withdrawal from the public

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fund is authorized by law. The Controller is also required to submit to each house of
parliament a report on the implementation of the budget of both the national and
county government. The office therefore acts as a form of control in the areas of
Budget, Expenditure, Income and Cash.
While the constitution has provided that the controller shall be required to report to
both houses of parliament, it is important that a mechanism be created to have the
report disseminated to the public in order that they can effectively participate in the
affairs of the county and in particular discharge public oversight from an informed
position. This promotes the principle of openness and accountability.
12.6.4.1 Issues
a. Report to county assembly- there is need to have the controller also report to
the county assembly. This will enhance the capacity of the assembly to play its
oversight role
b. One of the issues that require to be addressed is how regular and in what
amounts the Controller of Budget will be giving the authority for withdrawals
of funds by the county governments. There are several options that can be
considered:
One of the options is to approve withdrawal once at the beginning of the
financial year based on the approved budget of the county government
Another option is to design a mechanism for regular approval of
withdrawals. The periods can either be monthly, quarterly or semi-annual.
In this case therefore the county governments will be required to prepare
their budget implementation to match the regular flow of funds. This
option assumes the amounts approved for withdrawal are of equal
instalments
Another option is to approve the withdrawals regularly but based on the
cash flow projections presented and approved with the budget
It is recommended that the Controller of Budget approves withdrawal of funds on a
quarterly basis, based on the approved budget and submitted statement of cash flow
requirements that is aligned to the budget. The approval should be granted not less
than 14 days before the beginning of the period it relates to. A mechanism must be
created to quickly resolve such stand offs so as to ensure that service provision by the
county governments does not suffer.
Also it is recommended that an Arbitration Committee (with representatives from
both the county government and the office of the controller of budget) be established
that will advise the Controller of Budget on the best way to resolve the dispute.

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The other aspect for consideration is the requirements that need to be met before the
authority can be given for withdrawal of funds. It is important that this information
be clearly stipulated in order to ensure that as much as possible objective criteria are
used in evaluating a request by a county government for withdrawal of funds.
Secondly there is need to develop the modalities or recourse that county government
will have in the event they are denied an authority to withdraw while they are
convinced that they have met all the conditions required by law. The same applies
where the authority is delayed
A mechanism must be created to quickly resolve such stand offs so as to ensure that
service provision by the county governments does not suffer. Considering the above,
it is recommended that approval be given based on the following
a. approved budget by the county assembly
b. county appropriation bill
c. approvals for withdrawal given quarterly and based on the cash flow as
prepared and approved with the budget
d. Expenditure to be based on items indicated in the application and which tie in
with the budget.
e. Report by the county of utilization of the previous approval
12.6.5 Role of Accounting Officer
The office of the Accounting Officer of the County Government is created by Article
226 which states that there shall be an Act of Parliament that shall provide for:
a. the keeping of financial records and the auditing of accounts of all
governments and other public entities, and prescribe other measures for
securing efficient and transparent fiscal management; and
b. the designation of an accounting officer in every public entity at the national
and county level of government.
At sub article (2), it is indicated that the accounting officer of a national public entity
is accountable to the National Assembly for its financial management, and the
accounting officer of a county public entity is accountable to the county assembly for
its financial management.
That Article therefore, establishes the office of the Accounting Officer provides the
functions and clarifies the reporting requirements. The Article further provides under
sub article (5) that should a holder of a public office, including a political office, direct
or approve the use of public funds contrary to law or instructions, the person will be
liable for any loss arising from that use and shall make good the loss, whether the
person remains the holder of the office or not.

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According to The Comptroller & Auditor General (Amendment) Act 1993 of Ireland,
the Accounting Officer is defined as the Officer referred to in Section 22 of the
Exchequer and Audit Departments Act, 1866 to whom the duty of preparing the
Appropriation Accounts of a Department is assigned. The Act indicates the
principle role of an Accounting Officer as to safeguard public funds and ensure
propriety of expenditure of the funds. The officer should ensure that all relevant
financial considerations are taken into account where they concern the preparation
and implementation of policy proposals relating to expenditure or income. The officer
should also ensure economy and efficiency in the use of resources and design
systems, practices and procedures used to evaluate effectiveness.
The Local Government: Municipal Finance Management Act, of South Africa, 2003
stated that the Fiduciary duties of accounting officer as indicated below
Exercise utmost care to ensure reasonable protection of the assets and records
of the entity
Act with fidelity, honesty, integrity and in the best interest of the managing
the affairs of the entity
Disclose all material facts including those reasonable discoverable which in
any way may influence the decisions or actions of the parent municipality
Seek to prevent any prejudicial interest of the parent Municipality
12.6.5.1 Issue
Designation of Accounting Officer
One of the issues is to identify who will be designated as the Accounting Officer.
Article 226(1)(b) requires the designation of an accounting officer in every public
entity. Article 179(1) of the constitution vests the executive authority of the county to
the executive committee that is headed by the Governor. It however does not
specifically designate any officer as the Accounting Officer. The National Government
structures designate the Cabinet Secretary for Finance as the Accounting Officer. The
Ireland Act states that the person designated as the Accounting Officer is one to
whom the duty of preparing the Appropriation Accounts of a Department is
assigned Mirrored against the National Government structures, it is recommended
that the County Secretary for Finance be designated as the Accounting Officer for the
County Government.
Role and responsibility of Accounting Officer
The other issue to be addressed is the role and responsibility of the Accounting
Officer. Article 226(2) requires the keeping of financial records and the auditing of
accounts of all governments and other public entities. There is a provision for
national legislation to prescribe other measures for securing efficient and transparent

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fiscal management. It is recommended that the other measures to be prescribed
should include:
Safeguarding public funds and ensure propriety of expenditure of the funds.
ensure economy and efficiency in the use of resources
12.6.6 Oversight Role of the County Assembly
Article 185 provides that the legislative authority of a county is vested in, and
exercised by, its county assembly. Sub-article (2) provides that a county assembly
may make any laws that are necessary for or incidental to, the effective performance
of the functions and exercise of the powers of the county government under the
Fourth Schedule. In sub article (3) the county assembly is specifically given oversight
role over the executive and any other county executive organs, while respecting the
principle of the separation of powers.
Sub article (4) states that a county assembly may receive and approve plans and
policies for
a. the management and exploitation of the countys resources; and
b. the development and management of its infrastructure and institutions.
Article 224 states that on the basis of the Division of Revenue Bill passed by
Parliament under Article 218, each county government shall prepare and adopt its
own annual budget and appropriation Bill in the form, and according to the
procedure, prescribed in an Act of Parliament. Article 226 (2) provides that the
accounting officer of a national public entity is accountable to the National Assembly
for its financial management, and the accounting officer of a county public entity is
accountable to the county assembly for its financial management.
12.6.6.1 Concept of Oversight
Oversight can be defined as watchful care. This approach has proven to be an
effective technique in holding the executive to account and influence the executive
branch. The concept of oversight contains many aspects which include political,
administrative, financial, ethical, legal and strategic elements.
In the United States of America, congressional oversight prevents waste and fraud;
protects civil liberties and individual rights; ensures executive compliance with the
law; gathers information for making laws and educating the public; and evaluates
executive performance. The functions of oversight are:
a. To detect and prevent abuse, arbitrary behaviour or illegal and
unconstitutional conduct on the part of the government and public agencies.
At the core of this function is the protection of the rights and liberties of
citizens.

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b. To hold the government to account in respect of how the taxpayers money is
used. It detects waste within the machinery of government and public
agencies. Thus it can improve the efficiency, economy and effectiveness of
government operations.
c. To ensure that policies announced by government and authorised by
Parliament are actually delivered. This function includes monitoring the
achievement of goals set by legislation and the governments own
programmes.
d. To improve the transparency of government operations and enhance public
trust in the government, which is itself a condition of effective policy delivery.
12.6.6.2 Structures for Oversight
The US Congress's oversight function takes many forms:
Committee inquiries and hearings;
Formal consultations with and reports from the president;
Senate advice and consent for presidential nominations and for treaties;
House impeachment proceedings and subsequent Senate trials;
House and Senate proceedings under the Twenty-fifth Amendment in the
event that the president becomes disabled, or the office of the vice president
falls vacant;
Informal meetings between legislators and executive officials;
Congressional membership on governmental commissions;
Studies by congressional committees and support agencies such as the
Congressional Budget Office, the General Accounting Office, and the Office of
Technology Assessment - all arms of Congress.
The issues to be considered are the functions and organs of oversight. The oversight
function of the county assembly shall encompass the following: political,
administrative, financial, ethical, legal and strategic elements. The function shall seek
to:
To detect and prevent abuse
To hold the county executive to account in respect of how county revenue is
used.
To ensure that policies announced by county executive and authorised by
county assembly are actually delivered.
To improve the transparency of county executive operations and enhance
public trust in the county government
To evaluate executive performance

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INTERNAL AUDITS

What Kenyans said during the consultations:
a) Internal audits should be undertaken on quarterly
basis and be made public as a basis for
community monitoring and evaluation.
b) For a county to receive funds or grants from the
National Government, or have the National
Government guarantee loans, the county should
have established an independent county revenue
authority as supervisory body for management of
such funds. The authority to be composed of
community stakeholders elected but not
handpicked by the governor.
12.6.6.3 County Assembly Oversight Organs
The structures /organs that the county assembly shall utilize for oversight will
include:
County Assembly, Standing committees and Sub-committees
Formal consultations with and reports from the county executive
Informal meetings between county assembly members and executive officials
Secretariat for the County Assembly
County Assembly Secretariat
There is need to establish a secretariat for the County Assembly that will be
responsible for collecting and collating information and producing reports to help the
Assembly in decision making.
12.6.7 County Internal Audit Function
12.6.7.1 Definition
Article 225 (2) provides that Parliament shall legislate to ensure that there is both
expenditure control and transparency in all governments. Internal auditing is one of
the established systems of
providing the required
financial controls in
institutions. According to the
definition provided by the
Institute of Internal Auditors
(IIA), Internal Auditing is an
independent, objective
assurance and consulting
activity designed to add value
and improve an entitys
operations. It helps an entity
accomplish its objectives by
bringing a systematic,
disciplined approach to
evaluate and improve the
effectiveness of risk management, control and governance processes.
Based on the county consultations indicated in the box above, it was clear that
Kenyans would prefer there to be established an internal audit mechanism to
consistently provide an oversight to the usage of public funds.

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12.6.7.2 Historical Background of internal Audit
The Local Government Act, CAP 265, do not explicitly provide for the establishment
of internal audit functions in Local Authorities, besides in the Third Schedule, which
defines the powers, duties and responsibilities of certain officers, including the Chief
Financial Officer (the Treasurer). The Schedule states, under clause No. 10, that
where an internal audit department is maintained by the local authority, the
Treasurer shall be responsible and shall promptly report to the committee
responsible for finance any irregularities discovered in the course of such internal
audit.
The reporting line to the Treasurer did not enable internal audit functions to have the
level of independence required for performance of such duties. Consequently, the
Minister for Local Government, through Legal Notice Number 83 of 29th May 2000,
published in the Kenya Gazette Supplement No. 43 of 30th June 2000, amended
clause No. 10 in Part II of the Third Schedule of the Local Government Act to read
that every local authority shall establish Internal Audit Unit independent from the
Treasurer. The Internal Auditor shall be responsible therefore and shall promptly
report to the committee concerned and the Finance Committee any irregularities
discovered in the course of the internal audit.
12.6.7.3 Current Operations of Internal Audit Function in Local Authorities
The internal audit functions in Local Authorities currently draw their authority from
the Treasury Circular No. 16 / 2005, titled Establishment and Operationalization of
Audit Committees in the Public Service issued by the PS, Treasury, on 4th October
2005 with an effective date of 31st October 2005; and the Local Authority Financial
Management Regulations, 2007,
The Treasury Circular states in part that in order to enhance oversight, governance,
accountability and transparency in the Public Service, the Government has enforced
the establishment and strengthening of audit committees in all ministries,
departments, state corporations and local authorities. The audit committees will
have the responsibility for independent in-depth review of the framework of internal
control and of the internal audit process.
The Local Authority Financial Management Regulations, 2007, defines Internal
Audit as an independent review function conducted by qualified and appointed
individual(s) for the purpose of ensuring compliance with internal controls, laws and
regulations, and the general assessment of performance across the local authority.
The internal auditor is defined to mean a person charged with the independent
review, appraisal, inspection and monitoring function established by the Council,
pursuant to the Act, to examine and evaluate the whole system of internal controls
established by the Council, including the operational, financial and accounting

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activities of the Council. Therefore the regulations provide the following functions for
the internal audit functions:
a. The Council shall establish an Internal Audit department, reporting to the
Audit Committee as an independent, non-operational unit of the local
authority, separate and apart from the Treasurers department.
b. The Council shall cause to be employed as head of the Internal Audit
department an Internal Auditor who meets the qualifications and
requirements set out in the scheme of service applicable to local authority staff
from time to time, and who shall carry out internal audits evaluating the whole
system of controls, financial and otherwise, established by the Council in order
to provide reasonable assurance of the local authoritys operational
effectiveness and efficiency, compliance with laws and regulations, the
safeguarding of assets against unauthorised use or disposition and the
maintenance of proper accounting records, and reliability of financial
information.
c. The duties of the Internal Auditor shall be:
Conduct regular and continuous internal audits of the financial
transactions of the local authority and report any irregularities and/or
inconsistencies to the Audit Committee, with copies to the Clerk, the
Treasurer and the heads of department;
Provide the necessary reports and support to Ministry of Local
Government Inspectors, to the Controller and Auditor-General, and to
any other outside auditors, with the concurrence of the Clerk, in regard
to other external audits and investigations of the local authority; and
Have unrestricted access to all establishments and financial records of
the Council, and shall be entitled to require such explanations, as
he/she considers necessary to satisfy himself/herself of the correctness
of any matter under examination.
12.6.7.4 Revised Treasury Guidelines on Roles and Responsibilities of Internal
Auditors
The PS, Treasury has recently issued Circular No. 4/08, Strengthening of Internal
Audit Function in Government Service. The broad framework of the duties and
responsibilities of internal auditors set by this circular include:
a. Conduct systems audits to provide reasonable assurance that key Local
Authority operating systems such as cash management, procurement,
transport, revenue/AIA, assets management etc. are functioning effectively
and that the Governments strategic and operational objectives are being met
consistently, efficiently and in a cost-effective manner.

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b. Conduct Risk Based Audits (RBA) to provide reasonable assurance that risk
management processes and structures put in place by management are
functioning effectively and recommending appropriate risks mitigation
measures where necessary.
c. Provide consulting services to Local Authorities in developing appropriate risk
management, control and governance frameworks and enhance the level of
assurance provided to management.
d. Conduct Value for Money (VFM)/performance audits geared towards
economic, effective and efficient use of public resources and sound
management of public expenditure with the view to enhancing value for tax
payers money.
e. Conduct IT supported audits, including payroll audits, with the view to
enhancing internal controls in computerized environments.
f. Review, analyse, and evaluate budgetary allocation and periodical budgetary
performance reports submitted to Treasury by line Ministries to ensure that
the allocation and expenditure patterns are in line with the ministrys strategic
objectives and that there is evidence of prudent and effective utilization of
budgetary resources.
g. Review and evaluate Annual Appropriation Accounts, fund Accounts and
Statements of Assets & Liabilities before they are submitted to Controller and
Auditor General by Accounting Officers.
h. Verify and analyse periodical financial returns that are required to be
submitted to the Ministry of Local Government and/or Treasury by Local
Authorities from time to time [such as pending bills returns, expenditure
returns, imprest returns, revenue and AIA returns, staff returns and vehicle
returns].
i. Review and evaluate documents used in initiating commitments such as AIEs,
LPAs, LSOs and contract agreements etc.
j. Provide secretarial support to the Local Authority Audit Committee.
k. Carry out investigations/special audits on irregularities identified or reported
and report on any wastage of public funds resulting from decisions which may
not have been well-planned; decisions made without being cost conscious; and
/or general misuse or misappropriation of public resources and other Local
Authority assets.
l. Conduct periodic Public Expenditure Tracking Surveys (PETS) on specific
programmes in different sectors to ascertain economic, effective and efficient
utilization of resources and overall quality of public expenditure management.
m. Tracking of grants and other budgetary resources issued by the exchequer to
the Local Authority to ensure that the grants are utilized for intended
purposes.

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n. Carry out forensic audit where required and appropriate.
o. Follow up outstanding audit issues to confirm corrective/remedial action is
taken on reported audit findings and recommendations.
12.6.7.5 International Practices on Internal Audit Function
Code of Practice for Internal Audit in Local Government in United Kingdom148sets
out four main principles to be observed for internal auditors:
a. Integrity - All internal auditors should demonstrate integrity in all aspects of
their work. At all times the integrity and conduct of each internal auditor must
be above reproach. The relationship with colleagues, internal clients and
external contacts should be one of honesty, truthfulness and fairness. This
establishes an environment of trust and confidence that provides the basis for
reliance on all activities carried out by individual auditors and the internal
audit team.
b. Objectivity - Objectivity is a state of mind that has regard to all considerations
relevant to the activity or process being examined without being unduly
influenced by personal interest or the views of others. The internal auditor
must be impartial in discharging all responsibilities; bias, prejudice or undue
influence must not be allowed to limit or override objectivity. Internal auditors
must act objective and be perceived as doing so, and must avoid any conflict of
interest arising either from professional or personal relationships or from
pecuniary or other interests in an organisation or activity subject to audit;
resist undue influences that could restrict or modify the scope or conduct of
the work or significantly affect the content or judgments in the internal audit
report.
c. Competence - Internal auditors should apply knowledge, skills and experience
to their work, seeking additional advice and support where necessary to ensure
work is carried out competently. They should obtain sufficient knowledge of
the organisations aims, objectives, risks and governance arrangements; the
purpose, risks and issues of the service area; the scope of each audit
assignment; relevant legislation and other regulatory arrangements that relate
to the audit.
d. Confidentiality - Internal auditors must safeguard the information they receive
in carrying out their duties. Any information gained in the course of audit work
should remain confidential, without limiting or preventing Internal Audit from
reporting within the organisation as appropriate. There must not be any
unauthorised disclosure of information unless there
CIPFA also provides that for internal audit services to work properly in the public
sector, independent audit committees must be put in place. The purpose of an audit
committee is:

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a. to provide independent assurance of the adequacy of the risk management
framework and the associated control environment
b. to provide independent scrutiny of the authoritys financial and non-financial
performance to the extent that it affects the authoritys exposure to risk and
weakens the control environment
c. to oversee the financial reporting process.
The South Africa Municipal Financial Management Act 2004 provides that each
municipal entity must have an internal audit unit. The responsibilities for the unit
are:
a. prepare a risk-based audit plan and an internal audit program for each
financial year;
b. advise the accounting officer and report to the audit committee on the
financial year;
c. implementation of the internal audit plan and matters relating to internal
audit, internal controls, accounting procedures and practices, risk and risk
management, performance management, loss control, and compliance with
this Act, the annual Division of Revenue Act and any other applicable
legislation.
The Act also provides that each Municipal entity must set up an audit committee. The
Act provides that an audit committee is an independent advisory body. Its the
responsibility in advising the municipal council, the political office-bearers, the
accounting officer and the management staff of the municipality, on matters relating
to internal financial control and internal audits; risk management; accounting
policies; the adequacy, reliability and accuracy of financial reporting; performance
management; and effective governance.
The members of an audit committee must be appointed by the council of the
municipality or, in the case of a municipal entity, by the council of the parent
municipality. One of the members, who is not in the employ of the municipality or
municipal entity, must be appointed as the chairperson of the committee. No
councillor may be a member of the audit committee.
12.6.7.6 Recommendations
From the above analysis it is clear that internal audit function is major tool for
financial controls which could be employed by the county governments. For many
years the internal control function has not been operated in accordance with the
internationally recommended practices, and hence the many problems which have
been the subject of the financial mismanagement in local authorities in Kenya and in
the public sector generally. Hence it is imperative that to achieve good governance
and controls of the financial affairs of the county government there will be need not

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only to implement good internal control practices but also to anchor it appropriately
in the policy and legislative framework.
The following recommendations are therefore proposed to ensure that the internal
audit function is adequately implemented as one of the tools for the control of the
counties financial management systems:
a. Each county will be required to establish an independent internal audit
department
b. Each county will be required to establish an independent internal audit
committee with its members drawn from the professionals and civil society.
The members will have been vetted to be compliant with Chapter 6 of the
Constitution. The Chairman besides having been vetted for compliance with
Chapter 6 of the constitution will be a professional accountant of good
standing with the Institute of Certified Public accountants of Kenya.
c. The internal auditor will be expected to undertake his/her audit in accordance
with the standards of the Institute of Internal Auditors and will report to the
Internal Audit Committee
d. The Audit committee will regularly table its report to the Committee of the
County Assembly responsible for Public Accountability with copies to the
Governor and the Executive responsible for finance in the county.
12.7 FINANCIAL REPORTING AND AUDIT
12.7.1 County Financial Accounting and Reporting
One of the major principles of Public Finance as provided in Article 201(a) is
including public participation in financial matters. The public may only participate
effectively in the financial matters of a county government if they have the necessary
and timely information.
The goal of a PFM system is to support the achievement of fiscal discipline, strategic
& efficient allocation and use of funds, value for money and probity in the use of
public funds.
ICT has provided a platform in which, considering todays computerized,
interconnected and global environment, financial information can be provided
conveniently in terms of speed and spread (reach). This has ensured that the lag
between demand and supply of information is minimized.
12.7.1.1 Integrated Financial Management Information System (IFMIS)
IFMIS is an application that combines budget preparation, budget execution,
accounting, financial management and reporting activities on a single integrated
platform.

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IFMIS enhances transparency and accountability through reliable financial reporting,
informed decision making and reliable planning for national growth in Public
Financial Management. It increases efficiency by ensuring less manual work, less
book-keeping more analysis and reporting, timely production of public accounts,
reliable and timely management reports for informed decision-making,
accountability will rest with budget holders, ease of access to financial information,
internal controls will be enforced by the system and no duplication of data entry. It
further ensures commitment control that will assist MDAs manage their budgets
effectively and books of accounts are updated in real time.
The National Government should develop an integrated financial management
information system that will be applicable to both levels of Government. This will
facilitate the flow of intergovernmental fiscal transfers since the two levels should
have a system that is compatible and facilitates operations between the two
governments financial systems. This will be in line with Article 190(1) which states
that there shall be legislation ensure that county governments have adequate support
to enable them to perform their functions.
Sub article (2) indicates that County governments shall operate financial
management systems that comply with any requirements prescribed by national
legislation. In sub article (3) Parliament shall, by legislation, provide for intervention
byte national government if a county government(a) is unable to perform its
functions; or(b) does not operate a financial management system that complies with
the requirements prescribed by national legislation.
Sub article (4) Legislation under clause (3) may, in particular, authorise the national
government (a) to take appropriate steps to ensure that the county governments
functions are performed and that it operates a financial management system that
complies with the prescribed requirements; and(b) if necessary, to assume
responsibility for the relevant functions.
12.7.1.2 Reporting
In relation to financial reporting, public entities have now adopted The International
Public Sector Accounting Standards (IPSAS). IPSAS are a set of accounting standards
issued by the IPSAS Board for use by public sector entities around the world in the
preparation of financial statements. These standards are based on International
Financial Reporting Standards (IFRS) issued by the International Accounting
Standards Board (IASB).The standards focus on the accounting and financial
reporting needs of national, regional and local governments, related governmental
agencies, and the constituencies they serve.
Currently all Local Authorities are required to prepare and report their accounts
using IPSAS. Several international organizations have adopted IPSAS which include

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OECD, United Nations System, Commonwealth, Interpol. It is should therefore be a
requirement that all county governments should report their accounts using IPSAS
Article 185 provides that the legislative authority of a county is vested in, and
exercised by, its county assembly. In sub article (3) the county assembly is specifically
given oversight role over the executive and any other county executive organs, while
respecting the principle of the separation of powers.
While there are several ways in which the assembly may exercise this role, one critical
method is by receiving and evaluating reports on various aspects of the county
executive management. The issue to consider is the type of reports and the regularity
in which they need to be submitted to the assembly by the executive. In some
occasions the assembly may generate its own reports particularly in areas where the
report by the executive is not satisfactory.
Further the principles of finance as enumerated in Article 201 states that there shall
be openness and accountability, including public participation in financial matters.
The participation can only be effective if the public are participating from an
informed position. This means that necessary and timely information have to be
disseminated to the public. The information will be in form of reports. The issue here
again is what type of required by the public and how often should the reports be
given.
The preparation of periodic reports:
Encourages Governments to undertake a comprehensive review of national
legislation, policies and programmes on development
Ensures that each State regularly monitors the realization of the planning goals
and budgetary objectives
Encourages Governments to set priorities and indicators against which they
can judge performance;
Provides Governments with a benchmark against which subsequent reports
may be compared;
Provides information and opportunity for public to scrutinize and discuss
Governments performance
Highlights difficulties in implementation that might otherwise have gone
unnoticed.
It is therefore recommended as follows
Reports to the County Assembly will include the following
Financial reports (including budget implementation, debt position, cash
position)
Project implementation report

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Sector reports
Annual reports of activities and performance of the county
Annual Financial statements
Adherence to county plan
Frequency of reporting should be quarterly or such other period as a particular
county may determine depending on
its circumstances except for the last
three which shall be annual.
Reports to the public
Project cycle management
reports
Financial reports
Obligations of the public to the
county government e.g. paying
rates
Laws passed by the county
government
Frequency of reporting should be quarterly or such other period as a particular
county may determine depending on its circumstances except for the last which shall
be as and when the laws are passed. Other reports to be given on an annual basis are:
Annual reports of activities and performance of the county
Annual Financial statements
12.7.2 Role of Auditor General
Article 229 (1) provides for the establishment of the Office of the Auditor-General
who shall be nominated by the President and, with the approval of the National
Assembly, appointed by the President. Sub article (4) states that within six months
after the end of each financial year, the Auditor-General shall audit and report, in
respect of that financial year, on
a. the accounts of the national and county governments;
b. the accounts of all funds and authorities of the national and county
governments;
c. the accounts of all courts;
d. the accounts of every commission and independent office established by this
Constitution;
e. the accounts of the National Assembly, the Senate and the county assemblies;
The major issue for consideration is the capacity of the office of the Auditor General
to carry out its mandate as outlined in the constitution. Two aspects need to be
OUTSTANDING ISSUES ON
REPORTING AND AUDIT AND
PUBLIC ACCOUNTABILITY:

Shall we have peoples assembly as
proposed during the public
hearings?
Where and how will the governor
present the accounts to the public?

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considered, qualitative and quantitative capacity. Since the mandate covers all public
bodies, there is need to ensure adequate numbers of professionals complemented
with requisite resources to cover the mandate.
In order that the office carries out its mandate effectively, it should be decentralized
to the county level, while ensuring adequate capacity at the level.
12.8 FINANCING COUNTY INFRASTRUCTURE AND INVESTMENT
12.8.1 Role of Counties in Infrastructure Development and Delivery
County governments have been assigned the central role in the development and
delivery of infrastructure in the new constitution. Counties are mandated to plan,
develop, manage and maintain a broad range of infrastructure within their
jurisdictions. These include agriculture related facilities such as cattle dips, livestock
sale yards, county abattoirs, health facilities, refuse dumps, cinemas, libraries,
museums, county roads, ferries and harbours, markets, housing, village polytechnics,
storm water drainage, water and sanitation installations, fire stations, among others.
The National Government is, among other roles, charged with the responsibility for
national economic policy and planning, national standards, regulation, national
public works, national statistics, immigration and citizenship, macroeconomic
management, foreign affairs, defence and natural resources (Schedule 4).
Some aspects of social and economic infrastructure are also shared in the sense that
the constitution has assigned both levels of government corresponding responsibility
and accountability for the delivery of services at different levels within the same
sector. Examples of such concurrent functions for which infrastructural facilities will
require to be developed by each level of government include: education, transport,
health facilities, public works, public investment, statistics, disaster management,
energy regulation, environment and natural resources, forestry, tourism, betting,
casinos and other forms etc. The functional allocation and accountability for
infrastructure delivery represents a major policy shift compared to the situation prior
to the enactment of the new constitution.
The infrastructure development responsibilities of counties include: county roads,
storm water drains, water supply, sewerage, solid waste dumps, hazardous waste
disposal facilities, security and street lighting, telecommunications utilities, ferries
and harbours, public road transport, markets, county abattoirs and slaughter
houses, livestock sale yards, county assembly halls, county offices and buildings, fire
stations, county hospitals, health centres and dispensaries, cemeteries, conference
and social halls, cinemas, museums, electricity and gas reticulation infrastructure,
libraries, county stadia and parks, vehicle parking yards and silos, housing
development, village polytechnics, home craft centres, nursery schools and child care
facilities.

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12.8.2 Infrastructure Gaps and Equitable Development in Counties
County infrastructural facilities and installations are essential for supporting
productivity within and across counties and the wider national economy.
Development of county infrastructure will require large initial capital investment but
the economies of scale tend to be significant. In addition, counties, will through their
infrastructure projects, be pivotal in the delivery of the social and economic rights
specified in the Bill of Rights (Article 43).
Given the critical role of counties in the delivery of the social and economic rights, it
will be important for the new leadership of each county to establish the scope, extent
and quality of infrastructure within their respective jurisdictions. Information on the
status of infrastructure in all the county governments would be consolidated and an
appropriate data bank established at the National Government level. The exercise will
help in establishing the infrastructure gaps in counties and assist them in the
prioritization of their capital investment programmes. The infrastructure data would
then be used for national, inter-county and county planning. The data will also
inform the equitable share of national revenues and the allocation of conditional and
unconditional grants.
12.8.3 Approaches for the Development and Financing of County
Infrastructure
County governments can opt to directly contract out work relating to the
development their infrastructure. They can also collaborate with the national
government, other counties, state organs, private sector and non-state agencies in the
fulfilment of their infrastructure delivery mandates (Article 185 (4); Article 227 (1)
Schedule 4-Part 2). Currently, various government ministries and state corporations
are involved in the implementation of a broad range of infrastructure projects
relating to the functions allocated to devolved governments in the constitution.
Counties can also draw lessons from infrastructure and service delivery approaches
currently being practiced by the current local authorities. Existing local authorities
have, for example, established water and sewerage companies that are wholly owned
by respective local authorities and operate on commercial lines under autonomous
boards and managements. Some local authorities have also commercialized or
privatized some services such as refuse collection, security and street lighting, office
cleaning etc. The Nairobi Water and Sewerage Company Limited more than
quadrupled the monthly revenue collections from water sales as a result of the
improved management and financial control systems that were introduced following
the privatization of the service. The concessioning of security and street lighting
within the Central Business District (CBD) and from JKIA to Gigiri to Adopt-A-Light
under contractual arrangements involving concessions on billboard advertising by

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corporate entities helped in keeping the streets and adjacent areas well lit and
relatively safe.
There are four broad approaches for the joint development and financing of County
Infrastructure those individual counties may choose to adopt. These include:
a. Joint Authorities and Joint Committees: these can be set up as provided for
under Article 189 (2) to facilitate cooperation of the national government and
county governments or between two or more counties for the performance of
the functions of county governments including the provision of county
infrastructure and services.
b. County Government Corporations and Companies: county governments can
set up their own county-level corporations (e.g. the current water and
sewerage companies that are wholly owned by local authorities).
c. State Corporations: county governments can alsocontract state corporations
falling under the National Government for the latter to provide both finance
and management of county infrastructural projects.
d. Public-private partnerships: Infrastructure PPPs are contractual collaborative
arrangements between public sector organizations/county governments and
private sector institutions for the joint and collaborative delivery of capital
projects.
The Public Procurement and Disposal (PPPs) Regulations (2009) of Kenya identifies
five types of partnerships that, in the meantime, can also be adopted for the delivery
of county infrastructure. These are:
i. management contracts (MCs). MCs are short term PPP arrangements under
which the public sector procuring entity entrusts private companies with
operating infrastructure or providing management services according to
contract for a period not exceeding five years. The public sector retains
ownership and control of the facilities, capital assets and properties.
ii. Leases: when public and private sectors engage in a lease arrangement, the
private party pays rent to the procurement entity and manages, operates and
maintains the facility in exchange of fees or charges from consumers in
exchange of the services for a specified period of time
iii. Concessions: concessions, just like BOOT agreements (below) are long term
PPP arrangements. The contract covers a period not exceeding 30 years under
which the private party maintains, rehabilitates upgrades and enhances the
facility under consideration in the course of the concession.
iv. Build-Own-Operate Transfer (BOOT): Build-Own-Operate (BOO) schemes:
BOO contracts are long term PPP contracts in which private companies invest,
build, operate and own infrastructure until capital is recovered through fees
under a concession from the county, and the facility in question is then
transferred back to the county government.

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v. Build-Own-Operate (BOO): contracts where the private sector invests, builds
and permanently owns asset under contractual terms that secure public
interest under county supervision.
Other types of PPPs that county governments can utilize are: Design-Build-
Maintenance (DBM); Design-Build-Operate (DBO); Build-Lease-Operate-Transfer
(BLOT); Design-Build-Transfer-Operate (DBTO); Design-Build-Finance-Operate
(DBFO) also called the Private Finance Initiative (PFI) in Britain; and Purchase-
Upgrade-Operate (PUO).
Figure 12.6: County Infrastructure Financing and Development

12.8.4 County Governments Development Bank of Kenya (CGDBK)
The Fourth Schedule to the constitution defines the functions that are to be
undertaken by the two levels of government. Some of the functions allocated to the
county government will require the development of the requisite infrastructure in
order that the required service may be provided. Some of the envisaged infrastructure
will require huge capital outlays and it will not therefore be possible to finance the
same from the normal annual budgetary allocations. The constitution has provided
for borrowing by the county governments albeit with national government
guarantees. However the source of the funds is not elaborated and it can therefore be
assumed that the existing sources such as commercial institutions, capital market,
multilateral lenders and foreign governments may be targeted to provide the loans.

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Considering the importance of the county governments and the pivotal role they will
play in catalysing local economic development, it would be appropriate to establish a
sector specific financial institution that will cater for the long term funding needs of
the county governments. This will facilitate more effective access to the loan facility
and therefore improve and hasten the project cycle management that will result to
faster completion rates for projects.
The concept has precedents in the agriculture sector where the Agricultural Finance
Corporation was established. There are also the Industrial Development Bank, The
Kenya Tourism Development Corporation and the National Housing Corporation, all
which focus on a sector and thus become partners in the development of the sector.
Though the County Governments are strictly not a sector, the concept of specialized
lending can be adopted and a Financial Institution established to cater for their
needs.
The concept is not entirely new as the Local Government Loans Authority (LGLA)
was established vide Local Government Loans Authority Act (Cap 270 of LK). The
Authority was meant to provide funding for long term infrastructural need of the
Local Authorities. The Authority is however defunct after experiencing high rates
from recipients of the loans default.
Proposals have been made for the revival of the defunct Local Government Loans
Authority (LGLA) which was established as a revolving fund mandated to extend and
administer cheap loans to the local authority in the country. LGLA relied mainly on
government subventions as well as on external loans that were guaranteed loans.
Most of the loans were utilized by local authorities to develop county social
infrastructure such as town halls, municipal offices, markets, slaughter houses etc.
The authority was managed by civil servants serving in the ministrys departments
and administered through a committee chaired by the Minister for Local
Government. Loan decisions and repayments were politicized to the point where
most local authorities stopped the servicing of their loan obligations. Efforts to
restructure the authority into a Municipal Development Bank in the 1980s were not
followed through by successive ministerial administrations.
A County Governments Development Bank of Kenya that is managed professionally
could be established to facilitate the development of county infrastructure. The
Authority can also be the conduit through which guaranteed loans and conditional
grants for the development of infrastructure could be channelled to county
governments. The authority will also be required to administer the loans including
disbursements and repayments. One other task for the Authority would be to assist
the county governments to eventually be capable of accessing the capital market for
long term financing. This would mean ensuring the county governments are
financially structured and are managed in a way that gives sufficient confidence to the

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market for it to lend them funds. The Task Force will be firming up the idea further
after studying similar organizations in other country jurisdictions. The management
and corporate governance framework for the new county infrastructure development
facilitation institution must however be designed and effected in a manner that
avoids the pitfalls encountered by LGLA.
Table 12.2: County Infrastructure facilities that can be commercialized or
developed through public-private partnerships
# INFRASTRUCTURE CATEGORY TYPES OF INFRASTRUCTURE
1. Physical infrastructure roads;
offices and housing;
gas and electricity reticulation;
water and sewerage;
refuse yards and dumps;
streets and security lighting;
ferries and harbours;
cemeteries, funeral parlours and crematoria;
fire stations, vehicles, plant and equipment
2. Entertainment and recreational
facilities
museums;
sports and cultural facilities;
county parks and beaches
3. Educational facilities libraries;
pre-primary education;
village polytechnics;,
home-craft centres and;
childcare facilities.
4. Health amenities dispensaries, clinics;
ambulance service and;
pharmacies
5. Commercial centres markets;
livestock sale yards;
6. Agricultural Facilities cooperative buildings and facilities;
fish ponds;
abattoirs
Source: Constitution of Kenya, Schedule 4-Part 2
12.8.5 Efficiency, Sufficiency and Optimization of County Infrastructure
The set of values and principles of governance provided in the following articles of the
constitution should be judiciously applied to promote and ensure sufficiency,
efficiency and optimization of scarce public resources in the development of county
infrastructure:
a. the national values and principles for governance outlined in Article 10;
b. the values and principles of the public service articulated under Article 232(1)
c. the principles of public finance (Article 201)
d. the objects of devolution(Article 174);
e. the principles devolved government (Article 175); and
f. the guidelines on procurement of public goods and services (Article 227).

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12.9 INSTITUTIONAL AND TRANSITIONAL ISSUES
12.9.1 Institutions and Funding of Transitional Arrangements
The Commission on Revenue Allocation and the Senate play key roles in
intergovernmental fiscal transfers. They act as counterbalancing forces against the
national executive and the national assembly, respectively in the sharing of national
revenues. The role of the Commission on Revenue Allocation is largely advisory. It
makes recommendations to the Senate, the National Assembly, the national
executive, the county assemblies and the county executives. This role is
complemented by that of the Senate (Article 96(3)) in the determination of the
allocation of revenues among the counties. The Senate also monitors the utilisation of
revenue allocated to counties; and recommends a new formula for revenue sharing
once every five years. To be effective and credible in playing their role, both
institutions must have sufficient capacities.
There has been a debate as to whether budgetary resources should be allocated to the
counties before the counties and the Senate are in place. The argument arises
especially with regard to the 2012/2013 budget which will have been passed before
the next elections. It is arguable that it could be possible to set aside money in the
2011/12 budget to support transitional requirements for county governments. The
budget could be managed by a statutory body that would be in charge of the
transition or at worst by a designated ministry with sufficient oversight by CIC and
parliament.
It is without doubt, however that counties will require resources to operate
immediately after the next elections. It is recommended CRA is in place it should
design and recommend a formula for revenue allocation that could be used in the
first instance to allocate revenues to counties pending the election of senators. This
initial budget could be approved by the National Assembly, with a proviso for the
formula to be reviewed by the Senate before the next budget.
12.9.2 Framework for the Audit and Re-Allocation of Existing
Infrastructure Assets
Experience locally and elsewhere has shown that public infrastructure assets and
facilities get vandalized, disappear or are simply illegally transferred for private
ownership particularly during periods of transition before, during or soon after
general elections and regime changes. Moreover, the envisaged transition is unique in
that unlike the past where local government changes were only at the political level
the establishment of counties would entail changes at executive officers ranks. This
underscores the need to take proactive measures to stem the possibility of the same
happening prior to the assumption of power by county governments that will be
elected next year.

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The TFDG Interim Report should therefore recommend the immediate establishment
of an Ad Commission that will be tasked to carry out infrastructure audit, re-
allocation and the transfer of infrastructure facilities, land, vehicles, plant,
equipment, tools to either to the National Government, county governments,
constitutional commissions and offices etc. Persons to serve in the proposed
commission should be vetted to ensure they are Chapter Six (Leadership and
Integrity) compliant.
This recommendation recognizes the study on assets and liabilities of local
authorities (and national government departments in counties) for which the TFDG
has developed terms of reference is may not be completed before the expiry of the
Task Forces tenure. It also recognizes that the study in question will be limited to
about 15 local authorities, and on completion, its recommendations will be limited to
policy aspects. Hence, the critical work involving the actual audit of the assets of all
local authorities and those of government departments located at county level will
still require to be undertaken.
In the meantime, the government, through the Office of the Head of Public Service
should issue a circular to all accounting officers directing them to in turn advise their
field offices to compile and sent returns on the assets in their units located in every
county under their held by each unit. The accounting officer of the ministry
responsible for local authorities should issue a corresponding circular to all local
authorities. No assets should be disposed either from the effect date of the circular or
some other specified date. Accounting officers would be required to oversee the
exercise in their respective ministries and to assume accountability for the same.
Timelines and sanctions for deliberate asset omissions and/or providing inaccurate
data should be specified in the circular.
12.10 CONCLUSIONS
12.10.1 Summary
Fiscal decentralization is critical in a devolved system of government, where the
financial aspects are devolved to county Governments and the spending
responsibilities and revenue sources are divided between levels of government. The
key element of the conceptual framework of the fiscal decentralization is the
interrelationship between the two governments and how the functions and financial
resources are distributed and managed.
The sources of the county government financial resources are provided by the
constitution as revenues from both inter-governmental transfers and own sources;
grants from donors and loans guaranteed by the national government. The inter-
governmental sharing of national revenues consists of the block revenues based on
the vertical and horizontal distribution between the national government and the

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county governments, and between the county governments respectively; conditional
and unconditional grants; and equalization grants.
County governments may raise their own revenues by imposing taxes and charging
fees for services in a way that does not prejudice national interests. Counties should
also explore other possible sources which may need to be legalized. In levying taxes,
County governments should conform to the constitution and also adhere to the key
principles of taxation on equity; simplicity, transparency and certainty; effectiveness;
efficiency and cost; flexibility; enforceability; exportability; and burden equity.
Besides the donor grants (as the other source of financial resources to the counties),
which should conform to the national policy on donor funding, the other major
source of financial resources to the county governments will be internal and external
borrowing. As the constitution requires that all loans to the county governments be
guaranteed by the national government, provision of these guarantees should be
efficient, transparent and accountable. However it is important to note that County
Governments may borrow only with the approval of their respective county
assemblies and if the national government guarantees the loan (Article 212).
Assessment and approval of loan guarantees for Counties must also be based on the
national values and principles of public service, leadership and integrity. The
objectives of public debt management in counties which include promotion of
transparency and the modernization of the statistical information, effeciency and
environment of public debt sustainability should be given due consideration in the
process of guaranteeing loans.
For the county governments to manage their financial resources articulately planning
and budgets are cardinal to the whole process of public finance management. The
county and national integrated development plans will require to be linked, with the
county development plans based on the national integrated development plans.
Similarly budgets will also be linked both at the county and national level.
MTEF is the current tool being used at the national level to combine the planning and
budgeting. Therefore there will be need to institutionalize MTEF, SWAp and PCM/CP
as tools for planning, budgeting and budgetary controls for the counties.
Incorporation of the Project Cycle Management (PCM) and Community Participation
(CP) tools in the process of planning and budgeting and later in monitoring and
evaluation will be in tandem with the principles of public finance as provided in the
constitution Article 201.
Procurement or Supply Chain Management system is an important financial control
measure which will require to be enhanced also at the county government. Under the
on-going Public Financial Management Reform Programme (PFMR), the legal and
policy framework of the procurement process has promoted transparent and
accountable procedures and practices in central and local governments. However,

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misconduct associated with procurement in the public sector are still widespread and
delay in procuring of goods and services due to protracted period set in the act. Hence
there will be need to review the current procurement Act, one to incorporate the
provisions of Article 225 of the constitution and secondly to amend various other
articles which would make it an effective tool of financial controls in both
governments.
The other major ingredient of financial controls which will need to be
institutionalized in the county governments is the internal audit function.
International practice on internal audit sets out four main principles to be observed
by internal auditors which include integrity, objectivity, competence and
confidentiality. To achieve independence and ensure that the internal audit function
meet the above principles, the internal auditor will report directly to an independent
audit committees constituted of professionals and civil society.
Financial transparency cannot be achieved unless there are regular and audited
accounts maintained by the governments. It is also important that the maintenance
of the accounts and financial records will be efficient and compliant with the
International Public Sector Accounting Standards (IPSAS). Further the systems
maintained by both levels of governments will need to read into each other for ease of
inter-governmental relations and transfers. Therefore the integrated financial
management information systems (IFMIS) being implemented at the national level
will also need to be implemented in the county governments. However to avoid the
current systems operational systems there is need to ensure that the IFMIS is
adequately tested and operational before it is implemented in the counties.
County governments are responsible for the development and delivery of
infrastructure in the constitution. Counties are mandated to plan, develop, manage
and maintain a broad range of infrastructure within their jurisdictions. The
constitution has assigned both levels of government some aspects of social and
economic infrastructure and the corresponding responsibility and accountability for
the delivery of services at different levels within the same sector. This represents a
major policy shift compared to the situation prior to the enactment of the
constitution 2010.
There are four broad approaches for the joint development and financing of County
Infrastructure which counties may choose to adopt. These include, Joint Authorities
and Joint Committees, County Government Corporations and Companies, State
Corporations, and through Public-private partnerships.
12.10.2 Conclusion
The following conclusions and recommendations are made for the public financial
and management to be adequately devolved to the county levels:

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1. It is recommended that a separate legislation on county government public
finance management be distinct but have reference to the national public
finance management organic law. The reasons for this are to have consistence
with Article 6 of the CoK 2010 that the governments at the national and county
levels are distinct and inter-dependent and shall conduct their mutual relations
on the basis of consultation and cooperation.
2. Legislation on sharing of revenue both vertical and horizontal sharing, and
also how the county government will share revenues with further decentralised
units at the county level
3. A new legislation on County taxation be developed to cover rating, valuation for
rating, the criteria, steps and procedures for tax or fees calculation, tax
collection procedures and should also specify the sanctions for non-compliance.
4. Legislation to empower Revenue collection agent e.g. KRA to collect taxes
5. Legislation on the Institutional Framework to coordinate borrowing and grants.
This means the current legislations the Internal Loans Act and External Loans
Act will be combined.
6. The policy and procedure manual for incorporating the PCM/CP as both tools
for planning/budgeting and monitoring be developed. For the policies to be
effective they should be embedded in the County Public Finance management
Act.
7. Amendment of the Public Procurement Act to incorporate issues raised in the
chapter
8. A new policy and legislation to institutionalize internal audit function at both
levels of government be developed.

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13 THE TRANSITION ROAD MAP
13.1 INTRODUCTION
Kenyas transition towards a democratic constitutional dispensation dates back to
December 1991 when renewed popular quest for reforms and agitation for the rebirth
of a new Republic began in earnest. In that year, Section 2 A of the old constitution
was repealed. This rubric of the law had made Kenya a de jure one party state, had
hitherto prohibited formation of other political parties to compete for power with the
then ruling party.
The Constitution of Kenya, 2010 on 27
th
August 2010 therefore marked a cataclysmic
milestone in Kenyas constitutional evolution and development. It brought to a
pinnacle the long enduring constitution making process after Kenyans validated the
(PCK) at a National Referendum on 4th August 2010. The process thus far has been a
costly investment. Lives have been lost, civil liberties and fundamental freedoms
curtailed, property destroyed, colossal sums of public resources wasted and
opportunities for real social and economic advancement lost.
The Constitution of Kenya 2010 has set an irreversible transition path by the people,
towards a long desired democratic political dispensation; whose core pillar is
devolved democratic governance institutions and systems. This is a major departure
from what Kenyans have come to know and believe in since independence. The
Constitution restores the sovereign power of the people of Kenya under Chapter One -
Sovereignty of the People and Supremacy of the Constitution. Also resurrected is the
collective and individual self-esteem of Kenyans and Kenya. The social contract
theory is also given prominence in the Preamble:
The greatest challenge to Kenyas inevitable transition into the new democratic
constitutional dispensation is the lingering national mindset which has been
socialized over the years to institutionalize centrist despotic governance as a way of
life. The Constitution of Kenya 2010 recognizes this reality, especially the culture
shock its implementation must visit upon the political elite who over time, applied
social engineering strategies designed to exclude the vast majority of Kenyans from
the mainstream of public affairs. It is this recognition which inform the Constitutions
choice of phased time-bound self-execution.
Comparative analyses of democratic constitutional transitions indicate that Kenyas is
closer to that of Hungary. In 1989, Hungary adopted a new constitutional order
through amendment. Although Hungary chose to transit through constitutional
amendment, while Kenya took the popular route by way of referendum, the
circumstances under which both countries exited before transiting are similar.
Hungary underwent its transition from authoritarian rule to democracy and rule of
law. Like in the Kenyan case, the Hungarian transition is referred to as a

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"constitutional revolution," which means the choice of law instead of power, not only
for the future political system, but also as the basis for the mode of transition.
In his paper Constitutional Transition and Legal Continuity, Connecticut Journal of
International Law, spring, 1993,Peter Paczolay points to the importance of the
typology of transition as determining whether a given transition is a continuity and
discontinuity. The manner in which Kenyas transition is managed will therefore
determine whether the legitimacy of both the national and county governments is
based on the enduring aspects of the expired constitution or the Constitution of
Kenya 2010.
The transition into devolved dispensation has far reaching implications to
implementation of the Constitution of Kenya in the spheres of governance, human
resource, functional distribution, service delivery, requisite policy and facilitative
legislative framework.
Figure 13.1: Conceptualizing the Transition Process to Full
Establishment of County Governments

13.2 ORGANIZING THE TRANSITION ROAD MAP
As illustrated in Figure 13.1 the Task Force on Devolved Government has
conceptualized the Transition Road Map in three phases relating to key issues of

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finance, human resources, office facilities, land and other assets, liabilities, and civic
education.
This framework identifies the key issues that must be addressed to ensure proper
establishment and working of the new county governments. The issues are policy and
institutional in nature and require the contribution of various actors. The TFDG
proposes that these Transition Processes be anchored in law through a Transition to
County Governments Bill, 2011. In articulating the transition issues, it will be
important to keep the following overarching issues and processes in mind, namely:
Human Resource; how existing human resource in the central government,
including the Provincial Administration, and local authorities will be
rationalized and deployed and the management of the social, political and
financial implications of the process;
Service delivery; how continuation of delivery of services at both the national
and county governments will be guaranteed in the transition period;
National stability and security; how national stability and security will be
assured in the course of transition;
Assets and liabilities; how existing assets and liabilities will be apportioned
and managed;
Policy and facilitative legislative framework; how requisite policies and
facilitative legislation will be formulated on timely basis to ensure compliance
with the transition schedule set out by the Constitution;
Capacity building framework; how capacities from the perspectives of human
and physical infrastructure will be undertaken to ensure that county
governments take off smoothly;
Ongoing reform processes; how the various ongoing reform processes at both
the current central and local government levels will be transited into the new
dispensation; and
Communication; how information accruing from and relating to the transition
process will be generated, owned, managed and disseminated.
13.3 TRANSITION AREAS
The attainment of the issues outlined in Figure 14.1 over the transition period will be
important for the success of counties. The transition period as defined by the
Constitution is three years after the establishment of the county governments, that is
between August 2012 when the county governments come into being after the next
elections and August 2015. However, for our purposes we define two transition
periods, the first being that after the passage of Bills necessary for effecting devolved
governments, including that provided for by Article 200, and August 2012. Within
this period arrangements will be made to ensure that county governments start on
good footing after August 2012, when the second phase of the transition period starts.

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Activities of the first period are summarised in Table 13.1, indicating for activity why
the actions are necessary, who the actors are, the supporting policy
measures/legislation, the expected outcomes and the timelines. The implementation
of some these proposals are already in progress, for example audit of assets and
liabilities of local authorities and audit of central government staff in counties have
started. The audit of the assets and liabilities of LAs is necessary to assist in the
clearing of their financial obligations as required by the terms of reference of the Task
Force. The audit of current government and local authority staff stationed in counties
is to assist in their secondment to county governments during the transition.
Table 13.1: Transition in Phase 1
ACTIONS JUSTIFICATION ACTOR(S) REQUIRED
POLICY/LEGAL
MEASURES
OUTCOME TIME
FRAME
AUDIT OF ASSETS AND
LIABILITIES OF LAs
Clearing of
outstanding financial
obligations of LAs
ODPM/MoLG,
LAs, Transition
Secretariat
Assets and Liabilities
Bill, Transition Bill
Debts and
liabilities of
each LA
established
May 2011-
June 2012
AUDIT OF LA
INFRASTRUCRURE
COUNTIES
Vesting of plant &
equipment to county
governments
Ministry of Public
Works, LAs,
ODPM/MoLG and
Transition
Secretariat
Transition Bill,
Intergovernmental
Relations Bill,
Number and
functionality
of plant &
equipment
established
July 2011-
March
2013
AUDIT OF CENTRAL
GOVERNMENT
INFRASTRUCTURE IN
COUNTIES
Vesting of some plant
& equipment to
county governments
MoPW, MDAs
and Transition
Secretariat
Transition Bill,
Intergovernmental
Relations Bill,
Number and
functionality
of plant &
equipment
established
July 2011-
March
2013
AUDIT OF CENTRAL
GOVERNMENT STAFF
IN COUNTIES
Secondment of
central government
staff to county
governments
MoSPS and other
MDAs
Transition Bill,
Intergovernmental
Relations Bill, County
Public Service
Commission Bill
Number of
staff in each
county by
cadre, grades,
gender, age &
qualification
March
2011-
December
2011
AUDIT OF LA STAFF
IN COUNTIES
Secondment of LA
staff to county
governments
ODPM/MoLG,
LAs & Transition
Authority
Transition Bill,
Intergovernmental
Relations Bill, County
Public Service
Commission Bill
Number of LA
staff in each
county by
cadre, grades,
gender, age &
qualification
July 2011-
March
2012
CIVIC EDUCATION Sensitisation of the
public on Acts related
to county
governments
ODPM/MoLG,
MOJCA, and
stakeholders
Bills on counties
published & or
published
Civic
education on
devolution
started
August
2011- June
2012
COUNTY BUDGETS Agreement on initial
budgets for counties
ODPM/MoF,
CRA, CIC &
Transition
Secretariat
Transition Bill,
County Public
Finance Management
Bill,
Intergovernmental
Relations Bill
Initial County
budgets
agreed
March
2012
COUNTY PROFILES Establishment of
basic data and
framework for data
collection and
analysis in counties
MoPND &VISION
2030
Development
Facilitation Bill,
National Planning
Commission Bill
Profiles of
counties
produced and
printed
May 2011-
Dec 2011
ANALYSIS OF
FUNCTIONS
Development of
understanding &
framework for
devolving functions
to counties by MDAs
All MDAs Transition Bill,
Intergovernmental
Relations Bill, Review
of existing policies
and Acts of
Parliament relevant
to each function
Definition and
plan for
distribution of
functions
published &
necessary Acts
amended
June 2011-
Dec 2011

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The audit of central government and local government infrastructure is to assist in
the determination of plant and equipment to be vested to the county governments. In
the case of the central governments it will also assist in determining which plant and
equipment will be left to it in the counties. After the bills that relate to devolution
have been published, there will be civic education to inform the public on all the
aspects of the new system of government. The overall civic education programme is
being developed and will be implemented under the coordination of the Ministry of
Justice National Cohesion and Constitutional Affairs. The materials and the
programme for the devolution aspect of this matter is being developed by the Task
Force on Devolved Government and will be implemented by the Office of the Deputy
Prime Minister and Ministry of Local Government.
Table 13.2: Transition in Phase 2
ACTION ACTIVITY ACTOR(S) LEGAL
AUTHORITY
TIME
FRAME
Formation of
county
governments
Swearing in of Governor and
Deputy Governor
Presiding Judge of the
County High Court
Devolution Bill
Swearing of County Assembly Presiding Judge of the
County High Court
Devolution Bill
Appointment and swearing in of
Speaker of County Assembly
County Assembly & County
Executive & Presiding
Judge of the County High
Court
Devolution Bill
Appointment of Clerk of County
Assembly
County Assembly & County
Executive
Devolution Bill
Appointment, confirmation and
swearing in of County Executive
Governor & County
Assembly
Devolution Bill September
2012
Establishment of
County Public
service
Appointment of staff for
executive
County Executive County Public
Service Bill,
Transition Bill
September
2012
Appointment of staff for County
Assembly
County Executive County Public
Service Bill
September
2012
Transfer of assets
to county
governments
Vesting of assets of LAs and
central government to County
Governments
Transition Authority Transition Bill November 2012
Development of
County
Government
offices
Construction of required
structures
County Executive Transition Bill November 2012
Secondment of
staff to county
governments
Some staff of LAs and central
government placed under
control of county executive
MoSPS County Public
Service Bill,
Transition Bill
August 2012
Establishment of
County Public
Service
Commission
CPSC appointed by county
executive and confirmed by
county assembly
County Executive &
Assembly
County Public
Service Bill
November 2012
Appointment of
county staff
Advertisement and interviews by
CPSC
CPSC County Public
Service Bill
From January
2013
Restructuring of
Provincial
Administration
Restructuring of PA initiated MoSPAIS Sept 2012-
August 2017
Devolution of
functions to
counties
Asymmetric devolution of
functions begins
MDAs & Transition
Authority
Transition Bill June 2013-
August 2015
Capacity Building
for County
Governments
Development of capacity
building programmes & training
of county staff
National Government &
Transition Authority
Transition Bill January 2012-
January 2015
It is expected that Treasury will allocate funds to the counties in the 2012/13 budget
even though the county governments will not be in existence when the budget

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processed is finalised. It is proposed that ODPM/MoLG, CRA and the Transition
Authority should be involved in the decisions on these initial county budgets. It is
also important that data bases for counties are developed to assist county
governments to effectively undertake development planning as soon as they are
established. This initial work is proposed to be done by the Ministry of State for
Planning, National Development and Vision 2030.
One of the most important activities in the whole process of devolution is that of
devolution of functions assigned by the Constitution from the national government to
county governments. The process leading to this activity is as described in chapter 6
will start with the unbundling of functions by MDAs. This process is expected to start
in June and end in December, 2011. The purpose of the exercise is to separate and
define the functions that fall under each level of government. In the process there will
be need to review legislation and policies governing the all the functions to be
devolved. It is estimated that about 700 laws will have to be amended, a task that is
expected to be finalised before June 2012.
The second phase of the transition, shown in Table 13.2, starts after the county
governments take office sometime in August 2012. The most immediate activity in
this phase will be the formation of the county governments that will include the
swearing in of the Governors and their deputies and the members of the county
assemblies. This will be followed by the appointment of the county executive and a
few key political staff. Some preparatory work to ensure this process goes well will be
initiated the Transition Authority.
To effectively begin to put in place county public services it will be necessary for the
county governments to establish their public services using the modalities provided
in chapter 5. These institutions are proposed to be established by November, 2012
and will begin the recruitment process from January 2013. In the meantime county
government services will be provided by staff seconded from ministries and former
local authorities. As county recruit their staff will be need for capacity building to
ensure that they facilitate effective delivery of services in the new system of
governance. This function will be provided by the national government through its
training institutes and by providing financial resources for other opportunities
through grants to county governments. The restructuring of the provincial
administration will be initiated at this stage and as prescribed by the Constitution will
go on for a period of five years.
One of the key activities in this phase is the taking over of facilities previously owned
by both the national and local governments in the counties. These facilities would
have been identified in phase one (1) and may include buildings and other plant and
equipment. Some of these like hospitals, schools, machinery and so forth are key for
service delivery. Inadequacy in offices identified in phase 1 will be addressed at this

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level by initiating development under the guidance of county public works officers
after appropriate procurement procedures have been followed.
As already noted, counties will begin to take over the assigned functions at this stage.
The process is proposed to start in January 2012 and is expected to be finalised by
June 2015. This process will be implemented jointly by the national and county
governments with oversight by CIC and the Transition Authority. It is proposed that
the Transition Bill provides the framework and modalities for asymmetric devolution
of functions. This is important to provide a legal basis necessary for smooth transfer
of functions to counties.
13.4 PROPOSED ENABLING LEGISLATION
Table 13.3 summarises the list of bills to be legislated in support of the
implementation of the devolved system of government. It indicates which
Constitutional articles the laws are responding to, the suggested contents and
timelines applicable.
Table 13.3: Proposed Legislation for Implementing Devolved Government
in Kenya
# CONSTITUTIONAL
PROVISION
PROPOSED LEGISLATION CONTENTS TIMELINES
1 Devolution Bill, 2011
2 Transition Bill, 2011
3 Transfer of Assets & Liabilities Bill, 2011
4 Devolved Government Elections Bill, 2011
5 County Public Financial Management Bill,
2011

6 Intergovernmental Fiscal Relations Bill
7 Intergovernmental Relations Bill, 2011
8 Development Facilitation Bill, 2011
9 County Public Service Commission Bill,
2011

10 County Leadership, Ethics and Integrity
Bill, 2011

11 County Systems Bill, 2011
12 County Government Structures Bill, 2011
13 Minorities and Marginalised Groups Bill,
2011

13.5 PUBLIC COMMUNICATIONS IN SUPPORT OF THE TRANSITION PROCESS
The implementation process for operationalising devolved government will be
supported by a robust public communication effort, primarily driven by the Ministry
of Justice, National Cohesion and Constitutional Affairs, but implemented by the
Office of the Deputy Prime Minister and Ministry of Local Government, in

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conjunction with a wide ranging set of non-state actors. A comprehensive
programme to implement this is under development, guided by the proposals in this
document, the requirements Integrated National Civic Education Strategy under
development and strengthened by feedback arising from consultations based on this
ITFR.
13.6 CONCLUSIONS
A seamless transition is critical for the successful implementation of the devolved
structures and for ensuring that county governments have the necessary frameworks,
capacity and infrastructure to undertake their functions and duties once the first
elections under the new constitution are held in 2012. While it may not be possible to
provide for every transitional detail, the key issues and stages in the transition
processes have been highlighted in this chapter, and further details will be provided
for in legislation that will guide the transition process.

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ANNEXURES
ANNEX 1: COUNTY CONSULTATIONS QUESTIONS
Issue 1: Cooperative Government, Inter-Governmental Relations and Levels of
Governance
1. What actions are needed to facilitate cooperation and consultation between County
governments and between County governments and the National Government?
2. What actions are needed to facilitate the undertaking of joint functions between County
governments and between County governments and the National Government?
3. How should the County government cooperate with National Government Ministries,
Parliament, the Judiciary, and the Commission for Revenue Allocation and other
Constitutional Commissions?
4. What actions are needed to facilitate linkages and consultation between a county
government and its senator?
5. What considerations should be taken into account in establishing cities and urban areas in
counties?
6. How should cities and urban centers be governed?
7. How will cities, urban areas and municipalities relate with county and national
governments?
8. What other decentralized units will be necessary in County governments and why?
9. How should conflicts between County governments be addressed?
Issue 2: Functions of and Service Delivery by County Governments
1. What conditions must be in place in a county before a function is transferred to it?
2. How should these functions be exercised and services provided by the county
governments and by whom?
3. What are the key factors that should be considered in planning within counties?
4. How should the county public service be structured, staffed and managed?
5. What type of capacity and skills will be required for effective service delivery at the county
government level?
6. How do you want national government functions exercised and services provided at
county level?
7. What do you think should be the role of the Provincial Administration in the counties?
8. How would you like the provincial administration to be restructured to play its roles?
9. How should organisations providing cross-border services (for example water services
boards) be managed?
10. How should a county government manage services being implemented on its behalf by
quasi-government bodies or lower county structures?
11. When should functions of the national government be transferred to county government
and vice versa?
Issue 3: Financial Resources and Management in County Governments
1. What should be the basis for any allocation of funds and grants to county governments?
2. How should conditional and unconditional grants be applied to promote the objects of
public finance and achieve the goals of national development?
3. How should current devolved funds (such as CDF, LATF, Road Maintenance Levy Fund
(RMLF), Youth Enterprise Fund, Women Enterprise Fund, Bursary Funds, etc) be
managed in the context of County Governments?

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4. What criteria should be used to allocate the resources from the Equalization Fund within
a county?
5. What controls and safeguards should be put in place to prevent misuse and inappropriate
application of funds at the county level?
6. What other taxes should a county government be allowed to raise?
7. What should be the criteria and requirements for the approval of loans and loan
guarantees to county governments?
8. What sanctions should be applied to county governments for abuse and/or default in the
repayment of loans?
9. Under what conditions/circumstances can national government intervene?
10. What procedures and practices should county governments apply to ensure sound
budgeting and financial management?
Issue 4: Political Governance, Leadership, Accountability and Integrity in County
Governments
1. What should be the qualifications, leadership qualities, and experience of the governor,
senator, county assembly members and county executive members?
2. What should be the procedures for appointment and approval and removal of the county
executive committee?
3. What should be the procedure for election of the County Speaker?
4. What kind of electoral processes will enhance political competition and choice at County
level?
5. What should be the size and population of each ward in a county?
6. What should be the procedures for developing party lists for proportional representation?
7. How should the performance of the governor, deputy governor, senator, assembly
speaker, assembly members, and executive committee be assessed and enforced?
8. How should a county be governed during suspension of the county government by the
national government?
9. What transition procedures and institutions, if any, should there be to ensure continuity
of county government?
Issue 5: Public Participation and Oversight and Protection of Minorities and
Marginalized Groups.
1. What criteria should be used to determine minorities and marginalized communities in
counties?
2. How can minorities and marginalized groups in counties be protected?
3. What procedures should be put in place to ensure public participation and influence in
county governments affairs?
4. What kind of oversight measures and checks should the public have to ensure
performance and accountability by the county government?
5. What information and communication methods are required for the public to effectively
participate in devolved governance?
6. How should members of the public receive feedback from the county governments?
7. How can Information Communication Technology (ICT) be utilized to promote good
governance and accountability in counties?

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ANNEX 2: SCHEDULE OF COUNTY VISITS OF 20
TH
FEBRUARY TO 16
TH
MARCH 2011
COUNTY VENUE DATE
CLUSTER 1: COAST AND NORTH EASTERN PROVINCES
Taita Taveta County
Taveta

Lutheran Taveta Hall/ Challa Hotel

21st February 2011
Taita Taveta County
Wundanyi/Mwatate

Voi Town Hall

22nd February 2011
Kwale County
Kinango

Kinango Youth Centre

23rd February 2011
Kwale County
Matuga/Msambweni

Kwale County hall

24th February 2011
Mombasa County
Likoni/Kisauni/Mvita
Changamwe

Aga Khan Jubilee Hall

25th February 2011
Kilifi County
Kaloleni/Ganze

Kaloleni Social Hall

28th February 2011
Kilifi County
Bahari

Kilifi County Hall

1st March 2011
Kilifi County
Malindi/Magarini

Malindi County Hall

2nd March 2011
Tana River County
Garsen, Hola
Tana River

Garsen- Methodist Guest House
Hola-Tana River County Hall

3rd March 2011

Garissa County
Dujis/Fafi/Lagdera

Garissa County Hall

4th March 2011
Ijara Ijara Woman Kind 4th March 2011
Wajir County
Wajir West & North
Habaswein in Wajir South

Giriftu Pastoral Training Centre.
Habasein , DCs office

7th March 2011
Wajir County
Wajir East

Wajir County Hall

8th March 2011
Mandera County
Mandera

Mandera Town Hall

23rd March 2011
Lamu County
Lamu East

Lamu West

Faza Social Hall
Lamu County Hall
Green View Hotel-Mpeketoni

9
th
March 2011
10th March 2011
Nairobi County St. Benedict Kasarani 15th March 2011

Page | 305
COUNTY VENUE DATE
Cluster 2: Group 1
Marsabit County
Moyale

Moyale County Hall

21st February 2011
Marsabit Marsabit- St. Stephen ACK 22nd February 2011
Isiolo County
Gabartulla

Garbatulla Social Hall

23rd February 2011
Isiolo Isiolo Police Mess 24th February 2011
Laikipia County
Nanyuki

Nanyuki Town Hall

25th February 2011
Meru County
Maua

Maua Youth Polytechnic

26th -27th February 2011
Meru Meru County Hall 28th February 2011
Tharaka Nithi County
Marimanti

Tharaka CDF Hall

1st March 2011
Chogoria Chogoria Town Hall 2nd March 2011
Chuka Chuka Town Hall 3rd March 2011
Nyandarua County
OlKalou

Olkalou Town Hall

4th March 2011
Ndaragwa Ndaragwa DCs office 5th 6th March 2011
Laikipia County
Nyahururu

Nyandarua County Hall

7th March 2011
Nyeri County
Nyeri

Nyeri Municipal Chambers

8th March 2011
Othaya CDF Hall Othaya 9th March 2011
Nairobi County Mbotela Social Hall 15th March 2011
Embu County
Embu

Embu- Town Hall

21st February 2011
Siakago Siakago Catholic Hall 22nd February 2011
Kirinyaga County
Kerugoya,

Kerugoya County Hall

23rd February 2011
Wanguru Wanguru Sec School 24th February 2011
Baricho Baricho Secondary School 25th February 2011
Muranga County
Muranga,

Muranga County Hall

26th -27th February 2011
Maragua Muranga Teachers College 28th February 2011
Kiambu County
Thika

Thika Municipal Hall

1st March 2011
Kiambu Kiambu County Hall 2nd March 2011

Page | 306
COUNTY VENUE DATE
Kitui County
Mwingi

Mwingi County Hall

3rd March 2011
Kitui Kitui Multi-Purpose hall 4th March 2011
Mutomo Mutumo Catholic Church 5th 6th March 2011
Makueni County
Sultan Hamud

Kasikeu Secondary School- Kilungu

7th March 2011
Wote Makueni County Hall 8th March 2011
Machakos County
Matuu

Matuu Town Hall

9th March 2011
Machakos Machakos Town Hall 10th March 2011
Nairobi County DOs office Kibera 15th March 2011
CLUSTER 3: RIFT VALLEY PROVINCE
Kajiado County
Loitoktok

Loitoktok DCs Office ( B)
Kajiado County Hall (A)

21st February 2011
Namanga DCs office (A & B) 22nd February 2011
Narok County
Narok

Narok Town Council (A&B)

23rd February 2011
Bomet County
Bomet
Kilgoris

Bomet County Hall (A)
Kilgoris Town Hall (B)

24th February 2011

Kericho County
Kericho/Londiani

Kericho Teachers College (A&B)

25th February 2011
Litein Bureti County Council Hall (A&B) 28th February 2011
Nandi County
Kapsabet

Kapsabet Town Hall (A&B)

1st March 2011
Burnt Forest Burnt Forest-Amcent Secondary School (A & B) 2nd March 2011
Uasin Gishu County
Eldoret

Eldoret Town Hall (A&B)

3rd March 2011
Elgeyo Marakwet County
Iten
Kapsowar

Iten-Keiyo County Hall (B)
Kapsowar Marakwet County Council Hall (A)

4th March 2011
Trans Nzoia County
Kitale
Kachibora

Nzoia County Council Hall (B)
Kachibora -DCs Office (A)

7th March 2011
West Pokot County
Kapenguria
Sigor

Kapenguria- Mtero Hall (A)
Pokot County Council Hall (B)

8th March 2011

Page | 307
COUNTY VENUE DATE
Turkana County
Lodwar
Lokichogio

Lodwar County hall (B)
County Council UNICEF Hall (A)

9th March 2011

Samburu County
Maralal
Baragoi

Maralal Samburu County Hall
Baragoi- CCF hall

10th March 2011
Baringo County
Karbarnet
Marigat

Karbanet County Hall (A)
Eldama Ravine- Town Hall (B)

11th March 2011
Nairobi County Charter Hall 15th March 2011
CLUSTER 4: WESTERN AND NYANZA PROVINCES
Busia County
Busia
Port Florence

Busia County Hall
Port Victoria Centre

21st February 2011

Bungoma County
Bungoma
Kapsokwony

Bungoma County Hall
Kapsokwony County Hall

22nd February 2011

Kakamega County
Kakamega
Mumias

Kakamega Municipal Social Hall
Mumias ACK Mumias Hall

23rd February 2011
Kakamega County
Lugari

Tack Hall Min of Education- Lumakanda.

24th February 2011
Bungoma County
Webuye

Webuye Municipal Hall

24th February 2011
Vihiga County
Mbale
Luanda

Avugwi Social Hall County Council.
Busagame Sec School

25th February 2011

Siaya County
Siaya
Ugunja

Siaya County Hall
Ugunja Town Hall

28th February 2011

Kisumu County
Kisumu

Kisumu Social Hall

1st March 2011
Siaya County
Bondo
Rarienda

Bondo County Hall
Rarienda DCs Office

2nd March 2011

Kisumu County
Awasi
Kombewa

Awasi Nyando Catholic Church
Kombewa DOs office

3rd March 2011

Page | 308
COUNTY VENUE DATE
Homa Bay County
Homabay
Oyugis

Homa Bay County Hall
Oyugis Town Hall

4th March 2011

Homa Bay County
Mbita
Magunga

Mbita Town Hall
Magunga DCs office

7th March 2011

Migori County
Migori
Kehancha

Migori County Council Hall
Kehancha Multi-Purpose Hall

8th March 2011

Kisii County
Kisii & Keroka

Gusii County Council

9th March 2011
Ogembo & Nyamambe Gucha County Hall 10th March 2011
Nyamira County
Nyamira
Nyansiongo

Nyamira County Hall
Nyansiongo Town Hall

11th March 2011
Nakuru County
Nakuru

Nakuru Municipal Hall

14th March 2011
Nakuru County
Naivasha

Naivasha- CPK Hall Hall

15th March 2011

Page | 309
ANNEX 3: INTERNATIONAL AND OTHER TREATIES AND CONVENTIONS
RELEVANT TO DEVOLUTION

TO BE INSERTED

Page | 310
ANNEX 4: ANALYSIS OF DISTRIBUTION OF FUNCTIONS UNDER SCHEDULE 4
OF THE CONSTITUTION OF KENYA
FUNCTION

E Exclusive R Residual C/S Concurrent or Shared
LEVEL OF
GOVERNMENT
NATURE OF
FUNCTION
National County
Foreign Policy Foreign Affairs

E
Foreign Policy

E
International Trade

C/S
Water Use of international waters

E
Water resources

C/S
Energy Energy policy including electricity
and gas reticulation and energy
regulation

C/S
Immigration and citizenship

E
Relationship between Religion and State

C/S
Language policy and promotion of official and local languages

C/S
National defence and use of national defence services

E
Police services Setting of standards of recruitment,
training of police and use of police
services

E
Criminal law

E
Correctional services

E
Courts

E
National economic policy and planning

C/S
Monetary policy, currency, banking (including central banking),
the incorporation and regulation of banking, insurance and
financial corporations.

E
National statistics and data on population, the economy and
society generally

C/S
Intellectual property rights

C/S
Labour standards

E
Consumer protection, including standards for social security and
professional pension plans.

C/S
Education policy, standards, curricula, examinations & granting
of university charters

C/S
Universities, tertiary educational institutions and other
institutions of research and higher learning and primary schools
, special education, secondary schools and special education
institutions.

C/S
Promotion of sports and sports education

C/S
Transport and
communications
generally
Road traffic

C/S
Construction and operation of
national trunk roads

C/S
Standards for the construction and
maintenance of other

E
Roads by counties;

E
Railways;

E
Pipelines;

E
Marine navigation;

E
Civil aviation;

E
Space travel;

E
Postal services;

E
Telecommunications; and

E
Radio and television broadcasting.

E
National public works

C/S
Housing Housing policy

C/S

Page | 311
FUNCTION

E Exclusive R Residual C/S Concurrent or Shared
LEVEL OF
GOVERNMENT
NATURE OF
FUNCTION
National County
Land General principles of land planning
and the co-ordination of planning by
the counties

C/S
Environment Protection of the environment and
natural resources with a view to
establishing a durable and
sustainable system of development

C/S
Fishing, hunting and gathering;

C/S
Protection of animals and wildlife;

C/S
Water protection, securing
sufficient residual water, hydraulic
engineering and the safety of dams

C/S
Energy policy

C/S
Health Health policy

E
National referral health facilities

E
County Health Services County health facilities and
pharmacies;

E
Ambulance services;

E
Promotion of primary health care;

E
Licensing and control of
undertakings that sell food to the
public;

E
Veterinary services (excluding
regulation of the profession);

E
Cemeteries, funeral parlours and
crematoria; and

E
Refuse removal, refuse dumps and
solid waste disposal.

E
Disaster management

C/S
Ancient and historical monuments of national importance

C/S
Elections National elections

E
Agriculture Agricultural policy

E
Crop and animal husbandry

E
Livestock sale yards

E
County abattoirs

E
Plant and animal disease control;
and fisheries

E
Veterinary Veterinary policy

E
Capacity building and technical assistance to the counties.

E
Public investment

E
National betting, casinos and other forms of gambling

E
Tourism policy and development.

E
Control of air pollution, noise pollution, other public nuisances
and outdoor advertising

E

Page | 312
ANNEX 5: REVIEW OF METHODS FOR COSTING DELIVERY OF DEVOLVED SERVICES
METHOD APPROACH ADVANTAGES DISADVANTAGES WHEN IT IS MOST
USEFUL
REQUIREMENTS AND
ISSUES TO BE
CONSIDERED
COUNTRY EXAMPLES
Relative
Share
Rough division of the
total public revenues
and expenditures
across tiers of
governance using
international data
and crude common
sense estimates or
fixed percentage of
GDP or public
revenues
Quick results
Transparent
Affordable results as the
method divides the
available funds across
the tiers of governance
Not related to the actual
costs of local service delivery
/ expenditure needs
Does not ensure that the
funding covers the
mandatory functions (will
often lead to many unfunded
mandates)
Cannot be used for planning
& budgeting purposes and
efficiency initiatives
May be static and gradually
without relations to the
actual division of function if
not updated over time
When there is
limited data on
expenditure
assignments,
standards and
unit costs
When quick
reforms are
pursued, as the
method may be
preferred to
other existing
and more
random,
arbitrary and
non-transparent
principles
A crude guess has to
be made on finances
that accords with the
division of tasks
across the tiers of
governance
Should the local share
be linked to public
revenues (and which)
or GDP?
Ghana (in the
determination of the
Distruict Assemblies
Common Fund which
is at the moment
7.5% of public
revenues

Cambodia (CS Fund)
which has been set
between 2.5-3.0% of
the national budget
Historical
Data
Review of the
existing costs of all
services and other
functions prior to the
decentralisation at
various tiers. It
reviews the costs of
all services at all tiers
of governance
Provides a baseline for
future calculations when
tasks are transferred;
adjustments are then
made at the margin
It is easier to get reliable
information on costs of
services prior than after
decentralisation has just
taken place
It avoids the issue of
unclear mandatory
functions, as it deals with
the existing division in
practice
Useful for planning and
budgeting purposes
Useful to estimate
realistic and affordable
standards.
It is hard to link the results
directly to the grant system,
as it is not based on the
legal framework, but
prevailing practice.
It does not, if a stand-alone
exercise provides an answer
of the costs of a
decentralised system,
required grants etc., as this
system has not been
defined.
Costs may not be the same
when functions are
transferred to the LG levels.
The process of
decentralisation is already
on-going in most countries.
In cases where
the future
assignment of
tasks is likely to
change, but
where it is hard
to predict the
outcome
In case where
there has been
no costing of
actual services
In case where
there is time for
this kind of
exercise, which
requires
significant input
and time
Requires data on
budget and accounts,
on service standards
on costing etc.
Is a first step which
may later be
supplemented with a
review of cost in
cases where the
assignments are
changed and /or
where assignments
are clarified
Philippine with the
calculations made to
determine the Internal
Revenue Allotments (IRA)
(grant). However, the
calculations in the
Philippines went beyond
this rude calculation.

Spain has used some
variant of this approach
as well (Bahl &Vazquez,
2006)

Page | 313
METHOD APPROACH ADVANTAGES DISADVANTAGES WHEN IT IS MOST
USEFUL
REQUIREMENTS AND
ISSUES TO BE
CONSIDERED
COUNTRY EXAMPLES
Full
Bottom-
Up
Costing
Review the costs of
the devolved units
mandatory functions
as they are supposed
to be or expected to
be after final
decisions about the
decentralisation and
assignment of
functions have been
made real costing
of all services by use
of a bottom-up
approach studying
cost of services
May provide information
of use for determining
the future size of the
grants to devolved units
(fiscal gap analysis)
Useful for planning &
budgeting purposes
Hard to predict the outcome
of future assignments
The costing cannot
contribute to the dialogue,
and assumptions may not be
fulfilled;
Very labour intensive and
time consuming
Standards are often not
available for the costing
May lead to unaffordable
results
In systems
where final
decisions on
decentralisation
and major
standards have
been made and
when
fundamental
reforms are on
the agenda
Clarify mandatory
functions with no
ambiguity
Clarify service
standards (is very
demanding)
Make realistic phasing
Indonesia

Started in Yemen, but
not completed
Full
Bottom-
Up
Costing
plus
Historical
Data
Review of selected
localised services as
they are delivered in
practice (and cost the
real expenditure
needs of these)
Only facilitates up to
the main service
delivery level of
government are
included in the costs
and only core basic
services which will be
decentralised, by use
of combination of
existing expenditure
and actual needs
Provides a baseline for
future calculations when
tasks are transferred,
adjustments at the
margin can be made
It is easier to get reliable
information on the costs
of services prior than
just after
decentralisation has
taken place
It partly solves the
problem of unclear
mandatory functions, as
it deals with the existing
division in practices and
the costing does not
depend on the
assignment
Useful for planning &
budgeting purposes
It is hard to link the results
directly to the grant system,
as it is not based on the
legal framework, but on
prevailing practice
If it is a stand alone
exercise, it does not provide
the answers about the costs
of a decentralised system,
required grants etc. s this
system has not been defined
It requires significant input
and surveys
It is a very demanding
method, which is very labour
intensive
Standards are often not
available for the costing
In cases where
the future
assignment os
tasks is likely to
change, but
where it is hard
to predict the
outcome
In cases where
there have been
no costings of
actual services
It is a good
starting point for
the full costing
methods
Requires data on
budgets and
accounts, on service
standards, on costing
etc.
Is a first step which
has to be
supplemented with a
review of cost in
cases where the
assignment is
changes and/or where
assignments are
clarified
Latvia (studies in
1998-2000)

Estonia (1999-2000)

Uganda Local
Govern ment Finance
Commission (Revenue
Share Studies from
2001-20003)
Source: Adapted from Steffensen, Jesper (2010) Overview of Costing Methods for LG Expenditures. Fiscal Decentralisation
and Sector Funding Principles and Practices: Annex 2:

Page | 314
ANNEX 6: PROVISIONAL SIMULATIONS OF HORIZONTAL REVENUE SHARING
SCENARIOS
The scenarios presented here are for illustration purposes to facilitate focussed
discussion on the issue of the formula and the accompanying variables that would
feasibly be used to share revenue allotted to counties between counties. The
simulation exercise makes the following assumptions:
Population is based on 2009 census - No growth factor
Urban population is core urban plus peri-urban populations of urban centres
(KNBS)
Base
amount of
15% share is
Kshs 105.5
bn, based on
forward
estimates in
2011-1
Budget
Policy
Statement.
The amount
projected to
apply to the
2012/13 year
when 15%
share will
be paid
for the
first time
The following
Counties were
purposively
selected, namely
Isiolo,
Kakamega,
Lamu, Marsabit,
Meru,
Mombasa,
Murang'a,

Page | 315
Nairobi and Narok. The guiding criteria to have counties that as far as possible are
representative of
a lot of the issues
that citizens
during the county
visits suggested to
be the variable
though which
revenue would be
shared. These
were population,
urbanization, size
of county and
contribution to
the economy.
The scenarios
developed were as follows:
Population - 100% shared on total population
Population and Urbanization - 80% shared on total population, 20% on urban
population
Population and Size of County - 80% shared on total population, 20% on land
RGDP-S - Simulated regional GDP based on county share of Single Business
Permit fees (by existing local authorities)
The results were as follows suggest that larger counties in terms of population get
more from a population based formula, which is to be expected. If on the other end a
derivation formula is applied to the sharing of revenue, then Nairobi and other
counties that have more own revenue, would receive more.

Page | 316
ANNEX 7: PROVISIONAL COUNTY PROFILES
County Constituencies
(No.)
Districts
(No.)
Local
Authorities
(No.)
Total Pop
'09
Area in Sq.
Km
Rural Pop Urban Pop Density Poverty Property Tax SBP
Baringo 5 6 4 422,372 6,498.5 369,614 52,758 65.0 48.2 3,471,896 14,181,137
Bomet 5 4 4 585,072 1,592.3 499,484 85,588 367.4 54.3 9,252,396 16,766,555
Bungoma 6 9 7 1,375,063 3,032.2 1,098,549 276,514 453.5 62.3 17,022,412 43,907,714
Busia 5 7 7 743,946 1,695.0 624,041 119,905 438.9 64.8 6,232,147 23,846,175
Embu 4 5 4 516,212 2,818.0 443,312 72,900 183.2 56.4 8,842,304 37,364,008
Garissa 4 7 3 623,060 44,175.0 490,194 132,866 14.1 72.7 0 7,706,261
Homa Bay 6 6 7 366,620 1,169.9 307,327 59,293 313.4 72.7 4,938,713 8,846,838
Isiolo 2 3 1 143,294 25,336.1 90,417 52,877 5.7 52.4 1,588,837 1,548,208
Kajiado 2 5 2 687,312 21,901.0 475,765 211,547 31.4 47.5 26,014,130 38,215,688
Kakamega 9 11 6 1,660,651 3,051.2 1,469,472 191,179 544.3 65.2 23,562,853 36,869,437
Kericho 3 5 6 897,453 3,358.0 632,538 264,915 267.3 42.3 81,751,635 21,631,904
Kiambu 9 10 8 1,639,116 2,968.9 836,239 802,877 552.1 33.6 90,104,874 162,226,098
Kilifi 5 6 5 1,109,735 12,609.7 838,591 271,144 88.0 67.3 60,738,373 43,362,872
Kirinyaga 4 5 4 528,054 1,479.1 444,650 83,404 357.0 51.9 7,946,360 45,896,667
Kisii 7 10 10 1,030,212 1,155.6 800,001 230,211 891.5 64.0 12,097,290 31,393,035
Kisumu 6 6 5 1,351,620 3,036.7 897,080 454,540 445.1 66.9 80,476,720 60,992,271
Kitui 6 16 4 1,012,709 30,496.5 923,142 89,567 33.2 61.8 4,785,093 42,750,932
Kwale 3 3 2 649,931 8,270.2 545,869 104,062 78.6 64.3 52,139,190 13,094,302
Laikipia 2 5 3 399,227 9,461.9 319,459 79,768 42.2 54.5 36,602,009 34,397,603
Lamu 2 2 1 101,539 6,273.1 81,301 20,238 16.2 44.4 8,604,545 3,941,634
Machakos 6 8 5 1,098,584 6,208.2 579,284 519,300 177.0 60.5 105,293,008 74,776,173
Makueni 5 9 3 884,527 8,008.7 790,396 94,131 110.4 60.4 478,566 28,593,123
Mandera 3 6 2 1,025,756 25,991.5 835,669 190,087 39.5 72.7 0 2,446,430
Elgeyo /
Marakwet
4 4 3 369,998 3,029.8 316,370 53,628 122.1 42.6 2,515,138 8,155,440
Marsabit 4 7 2 215,970 31,713.2 156,176 59,794 6.8 51.1 0 6,086,948

Page | 317
County Constituencies
(No.)
Districts
(No.)
Local
Authorities
(No.)
Total Pop
'09
Area in Sq.
Km
Rural Pop Urban Pop Density Poverty Property Tax SBP
Meru 7 8 4 1,591,533 8,025.5 1,352,999 238,534 198.3 50.7 11,325,394 73,049,101
Migori 5 7 5 1,131,633 3,659.1 874,392 257,241 309.3 56.2 1,226,333 22,087,747
Mombasa 4 4 2 939,370 218.9 939,370 4292.1 44.2 457,182,230 263,133,595
Murang'a 6 8 7 926747 2,133.3 778,814 147,933 434.4 34.1 9,609,528 52,032,449
Nairobi 8 9 1 3,514,612 3,729.7 274,368.00 3,240,244 942.3 44.8 1,773,629,923 832,202,732
Nakuru 6 9 4 1,227,082 4,460.5 724,252 502,830 275.1 48.5 113,925,889 154,855,794
Nandi 4 5 3 752,965 2,884.2 679,615 73,350 261.1 43.0 9,237,412 14,751,860
Narok 3 4 3 576,388 15,074.7 526,475 49,913 38.2 59.7 0 9,563,555
Nyamira 3 4 4 720,322 1,061.3 601,778 118,544 678.7 49.2 475,782 8,587,436
Nyandarua 4 7 3 596,268 3,245.3 488,231 108,037 183.7 46.2 6,689,098 41,600,154
Nyeri 6 8 4 693,558 3,337.1 529,082 164,476 207.8 39.0 22,015,561 58,428,813
West Pokot 3 4 3 645,879 13,686.2 607,803 38,076 47.2 55.2 9,547,870 6,584,696
Samburu 2 3 2 223,947 21,022.2 185,255 38,692 10.7 38.2 0 5,127,819
Siaya 5 6 7 842,304 2,530.4 731,444 110,860 332.9 70.8 2,569,444 25,031,079
Taita /
Taveta
4 4 3 284,657 17,084.0 213,734 70,923 16.7 56.9 5,495,467 17,100,849
Tana River 3 3 1 240,075 38,436.9 208,712 31,363 6.2 64.5 4,095,554 1,978,520
Tharaka-
Nithi
2 4 4 130,098 1,549.5 121,563 8,535 84.0 58.3 0 2,947,066
Trans Nzoia 3 3 2 1,093,289 5,353.9 952,967 140,322 204.2 47.6 15,220,641 28,122,163
Turkana 3 6 2 930,595 107,928.3 840,278 90,317 8.6 61.5 0 8,285,380
Uasin Gishu 3 3 3 894,179 3,345.2 547,072 347,107 267.3 50.8 130,994,966 56,205,916
Vihiga 4 4 3 554,622 530.9 401,102 153,520 1044.7 65.6 1,448,442 14,962,663
Wajir 4 8 1 661,941 56,685.8 584,724 77,217 11.7 72.7 0 1,719,050
Total 210 286 175 38,610,097 581,313 27,089,600 11,520,497 2,592 3,219,148,023 2,507,355,890

Page | 318
BIBLIOGRAPHY

TO BE INSERTED IN FINAL REPORT

Page | 319
ENDNOTES

1
The Fourth Cabinet Meeting of 2010 was held on 17
th
August 2010 during which Cabinet Memorandum Cab (10) 55,
was jointly submitted by the Deputy Prime Minister and Minister for Finance, the Minister for Justice, National Cohesion and
Constitutional Affairs and the Attorney General, Cabinet under item (v) directed each lead Ministry to commence on drafting the
relevant Bills so that the implementation dates set out in the new Constitution are strictly adhered to.
2
See SID, Readings on Inequality in Kenya: Sectoral Dynamics and Perspectives, SID, 2006.Particularly Kanyingas
paper titled Governance Institutions and Inequality in Kenya p.
3
To be added
4
See, Ghai & McAuslan, Public law and political change in Kenya
5
ibid
6
Wanyande. P: Evolution of governance practice in Kenya; an overview in Bujra (ed) p.43
7
Ghai the problematique ..
8
Ogendo O, Constitutions Without Constitutionalism: Reflections on an African Political Paradox
9
Ibid note 2 p.48-49
10
See Kangu M
11
See Mbai C, Accountability in Governance in Bujra (ed) Democratic Transition in Kenya, ACEG, Nairobi, 2005 p.105
12
Mitullah ( )
13
Mitullah, W ( ) Local Level Governance in Kenya a Review and Critic of Key Issues in Bujra (ed) Democratic Transition
in Kenya,170.
14

15
Dobbs, Richard et. al. (2011) Urban world; Mapping the economic power of cities. McKinsey Global Institute. March
2011
16
Katz, 2008
17
Adopted from Asian Development Bank (2008)
18
HM Government (2009) World Class Places: The Governments Strategy for improving the quality of place.
http://www.communities.gov.uk/publications/planningandbuilding/worldclassplaces
19
Current one is the Political Parties Act, Chapter 7A
20
UNDP, United Nations Development Programme Policy Document. (UNDP) ,1997
21
Ciulla J, Leadership Ethics: Mapping the Territory, Business Quarterly( 1995), p.5:5-24
22
George, B,(2003) Authentic leadership. San Francisco: Jossey Bass
23
Edid M, IWS Issue Brief- Ethical leadership and the price of bad behaviour, Cornel University ILR School,2004 p.2
24
Annex 3 provides an initial Provisional Summary of the International Conventions and Agreements to which Kenya is
signatory that have an immediate implication on the operationalization of County Governments
25
Draft Kenya Local Government Bill, 2009
26
What is Good Governance. UNESCAP, 2009. Accessed 4
th
April 2010
27
Because the term good governance can be focused on any one form of governance, aid organizations and the
authorities of developed countries will often focus the meaning of good governance to a set of requirements that conform to
the organizations agenda, making "good governance" imply many different things in many different contexts.
28
http://www.42explore2.com/patriot.htm Accessed 29th March 2011
29
The World Bank defines decentralization as the transfer of authority and responsibility for public functions from
central government to intermediate and local governments or quasi-independent government organizations. There are 3 distinct
types of decentralization; de-concentration, delegation and devolution; these 3 have different characteristics, policy implications
and conditions for success. In this paper we speak of devolution. In devolution, central government transfers authority for
decision making, finance and management to quasi autonomous units of local government with corporate status.
30
Article174(a) of the Constitution
31
Article174(c)
32
Article174(d)
33
Article174(f)
34
Article174(i)
35
Article175(a)
36
Article176 (l)
37
Article 177(l)
38
Article 193(1)(a)
39
Article 193 1(c)
40
http://en.wikipedia.org/wiki/Closed_list
41
Article 193(2)

Page | 320

42
Article 193(3)
43
Article 178(1)
44
Article 178(2) (a)
45
Article 178(2) (b)
46
Article185 (1)
47
Article185(3)
48
Article 185(4)
49
Article 200
50
Article 194(1)(a)
51
Article 194(1)(b)
52
Article 194 (10)(d)
53
Article 194(1)(e)(i)
54
Article 194(1)(e)(ii)
55
Article 89(3)
56
Article89(5) of the Constitution provides that the number of inhabitants of each constituency shall be as nearly as
possible equal to the population quota but that the same may vary taking into account geographical features and urban centres,
community of interest, historical, economic and cultural ties and means of communication. Such variance however must not be
more than forty per cent for cities and sparsely populated areas and thirty per cent for other areas.
57
http://en.wikipedia.org/wiki/Asymmetric_federalismAccessed 29th March 2011
58
Article 191(1)
59
Article 191(2)(a)
60
Article 191(3)
61
Article 191(3) (c)
62
Article 191(2) (b)
63
Article 175
64
See Articles 176 and 179 to 183 of the Constitution on the County Executive establishment.
65
Under Article 180(5) the qualifications and disqualifications for election of Governor are the same that apply to
County Assembly members and are provided for in Article 193, including for independent candidates being supported by 500
registered voters in a ward.
66
Article 38 (3)
67
Under Articles 24 and 25 of the Constitution
68
Articles 99 (1)(b) and 193(1)(b)
69
This section has borrowed heavily from the IDEA publication, Andrew Reynolds et al, Electoral System Design: The
New International IDEA Handbook, , IDEA, Stockholm,2005
70
Such as the Alternative Vote and the Two-Round System. The IDEA Handbook provides details on how these systems
work.
71
Article 197(2)
72
Article 1 (3)(b) of the Constitution states that the sovereign power of the people of Kenya is delegated to the national
Executive and the Executive structures in the County governments, and in Article 10 one of the national values and principles of
governance that is provided for is the sharing and devolution of power.
73
In Article 179
74
These functions are provided in Article 183 and are mainly implementing County and national legislation, and
managing and coordinating the County administration and its departments.
75
Article 183(3)
76
Article 185(3) &(4)
77
Under Article 179 (7) of the Constitution
78
In Article 200
79
The Act also abolished the graduated personal tax, a major revenue source for Local Authorities thus drastically
reducing their financial independence.
80
Functions are taken to refer those assigned under Schedule 4 of the Constitution of Kenya
81
Competencies or responsibilities refer to the powers given to a public authority in respect of a specific activity key to
ensuring the provision of a public service. This would refer to powers of planning, regulating, setting standards, constructing,
financing, managing, monitoring & evaluating; sanctioning or intervening in any way to ensure that a function assigned to it is
discharged
82
Parrado (2005)
83
The problem usually is not that concurrent functions are present. The issue normally arises in the manner in which
the implementation of concurrent functions is implemented. It is this process that must be managed to ensure that objects of
devolution are achieved in a low conflict environment.

Page | 321

84
Hermann et. al. ( )
85
Ferazzi (2008)
86
Steytler ( )
87
Further options for delivering services are discussed
88
The Rio Declaration of 1992
89
See generally Art.1 of the Constitution.
90
See US Civil Rights Act of 1964, 29 C.F.R. 1608.1.
91
U.S. Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination (1981)
92
Art.260 of the Constitution.
93
Report of the African Commissions Working Group of Experts on Indigenous Populations/Communities presented to
the African Commission on Human and Peoples Rights at its 28th ordinary session 2005.
94
Prof. Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human
Rights Council: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous
people.
95
Article 1 of the ILO Convention No.I69 concerning Indigenous and Tribal Peoples in Independent Countries available
at <http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm> (accessed on 20 January 2010).
96
See Barume, AK, Land Rights of Indigenous People in Africa, IWGIA Document 115, Copenhagen (2010).
97
Report Op. cited.
98
Id.
99
Id.
100
Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human
people.
101
ACHPR.
102
Report of the African Commissions Working Group of Experts on Indigenous Populations/Communities presented to
the African Commission on Human and Peoples Rights at its 28th ordinary session 2005.
103
See BarumeOp cited.
104
Ibid.
105
Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities (1979)
E/CN.4/Sub.2/384/Rev.1 at 96.
106
See definition by Minority Rights Group International available at <http://www.minorityrights.org/566/who-are-
minorities/who-are-minorities.html> (accessed on 3 December 2010).
107
Article 2 (1) to 2 (4) of the National and Ethnic Minorities and Regional Languages Act of Poland.
Article 2.1 of the Polish Act provides that: A national minority, as defined by this Act, shall be a group of Polish citizens who
jointly fulfil the following conditions: 1) is numerically smaller than the rest of the population of the Republic of Poland; 2)
significantly differs from the remaining citizens in its language, culture or tradition; 3) strives to preserve its language, culture
or tradition; 4) is aware of its own historical, national community, and is oriented towards its expression and protection; 5) its
ancestors have been living on the present territory of the Republic of Poland for at least 100 years; 6) identifies itself with a
nation organized in its own state.
Article 2.2 of the Act provides: The following minorities shall be recognized as national minorities: 1) Byelorussians; 2) Czechs;
3) Lithuanians; 4) Germans; 5) Armenians; 6) Russians; 7) Slovaks; 8) Ukrainians; 9) Jews.
Article 2.3 of the Act provides: An ethnic minority, as defined by this Act, shall be a group of Polish citizens who jointly fulfil the
following conditions: 1) is numerically smaller than the rest of the population of the Republic of Poland; 2) significantly differs
from the remaining citizens in its language, culture or tradition; 3) strives to preserve its language, culture or tradition; 4) is
aware of its own historical, national community, and is oriented towards its expression and protection; 5) its ancestors have
been living on the present territory of the Republic of Poland for at least 100 years; 6) does not identify itself with a nation
organized in its own state.
Article 2.4 of the Act provides. The following minorities shall be recognized as ethnic minorities: 1) the Karaim; 2) the Lemko; 3)
the Roma; 4) the Tartar.
108
Van Der Bakeninfra note 29
109
See ACHPR Case 276 / 2003 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya. Before that there was failed national case of William
YatichSitetalia& 72001 Others V Baringo Country Council & 2 Others [2002] eKLR.klr
110
Ol Ole Njogo and 7 others v the Honourable AG and 20 others case No. 91 of 1912 (5 EALR.70)
111
See HCCA 635/97: Joseph Letuya and 21 others Vs Attorney General and 5 others, HCCA 228/2001: Joseph Letuya
and 21 others Vs the Minister for Environment and Natural Resources and HCCA 238/99 & Appeal No. 98/2000: Francis Kemei
and 9 others Vs Attorney General and 3 others Judicial Review No. 421/2002: Republic Vs Minister for Environment and lands
officials.

Page | 322

112
See Kiptum Y and Odhiambo, C Safeguarding Sengwer Territory, Land, Culture & Natural Resources :Participatory 3-
Dimensional Modelling of Cherangany Hills available at <http://www.iapad.org/publications/ppgis/p3dm_sengwer_people.pdf
accessed 3rd Dec.2010> quoting C.H Adams, Acting PC Rift Valley in his testimony to the Kenya Land Commission (Carter
Commission) of 1932.
113
Captain A.R Mahony, the DC West Suk in a meeting in Kapenguria on 17
th
of September 1935.
114
Rodolfo Stavenhagen implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled Human
people.
115
N, Ramakantan, Federalism, Decentralization and Democratization in a Multicultural Polity: Some Critical Issues in the
State of Federalism in India, IFF Summer University 2008 Paper for Week 2 available at
<http://www.federalism.ch/files/FileDownload/887/Remakantan_India.pdf> (accessed on 10 January2011).
116
Michael Keating, Federalism and the Balance of Power in European States SIGMA/ OECD, (2006):37.
117
Prof. Keating Op. cited.
118
Prof. Keating Op. cited.
119
Article 174 of the Constitution of Kenya 2010.
120
RamakantanOp. cited.
121
Ibid.
122
Christophe Van der Beken, Ethiopia: Constitutional Protection of Ethnic Minorities at the Regional Level , Afrika
Focus, Vol. 20, Nr. 1-2, 2007, pp. 105-151.
123
Ibid.
124
See Polish 1992 Education Ministers Resolution on the Organisation of Educational Programmes Enabling Minority
Pupils to retain their Sense of National, Ethnic and Linguistic Identity.
125
Philip Lee, The Illustration of Democracy. In the Democratization of Communication (1985): Published on behalf of
the World Association for Christian Communication pp 3 - 8
126
Ibid Pg. 2
127
Ibid Pg. 3
128
Kibisu Kabatesi, Press Law: Some Home Truths; in Democratization and Law Reform in Kenya (1997), ClariPress.pp
185-221
129
See Ochilo, The Role of the media in Democratic Transition in Kenya; in Governance and Transitional Politics in Kenya
(2008)Nairobi University Press
130
Constitution of Kenya (2010), pp. 27-29: Printed by the Government Printer, Nairobi
131
See Hedebro (1982), The Role of Communication and Politics(1998) in Media and Sustainable Development, ACCE: Nairobi
pp 226
132
Ibid Pg. 227
133
Shramm (1964), The Role of Communication and Politics(1998) in Media and Sustainable Development, ACCE: Nairobi pp
227
134
Uche (1991) Communication and Development in Military Political Culture. A case study of Nigerian Public campaign for
Social Change In Media and Sustainable Development, ACCE: Nairobi pp 227
135
Ibid Pg. 227
136
Ibid Pg. 228
137
Ibid Pg. 228
138
See the Constitution of Kenya (2011)
139
Ibid Karima et al
140
KarimaBounermra et al.The Role of ICTs in Science and Technology in Africa. In African Renaissance (1999), Mafumbe
Publishing , South Africa
141
There were 4 Agenda Items, namely 1) Immediate measures to address the humanitarian crisis, promote reconciliation,
healing and restoration 2) Immediate measures to address the humanitarian crisis, promote reconciliation, healing and
restoration 3) How to overcome the then prevailing political crisis; and
142
This is expected to arise because local service providers are expected to be closer and therefore more responsive to
needs; and in the process promotes higher accountability and efficiency.
143
This principle policy and decision making should be made and services should be provided at the lowest level of
government unless there are compelling reasons for assigning the tasks the higher level of government.
144
See Annex 4 for some analysis of the implications of various simulations and types of formula on revenue sharing
outcomes.
145
Pareto principle is named after the social economist Vilfredo Pareto (1848 -1923) who stated that if we can find a
way of making to make some people better off without making anybody else worse off, we have a Pareto Improvement
146
See the Deloitte final evaluation repot for the GJLOS reform programme 2010

Page | 323

147
PMBOK is short for Project Management Body of Knowledge, a project management guide, and internationally
recognized standards, that provide fundamentals of project management.
148
Statement issued by Chartered Institute of Public Finance and Accountants (CIPFA) of United Kingdom (2006)

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