Draft Sessional Paper On Devolved in Kenya, 2011

REPUBLIC OF KENYA
Office of the Deputy Prime Minister and Ministry of Local Government
Draft Sessional Paper on Devolved Government in Kenya, 2011
Developmental Devolved Government for Effective and Sustainable Counties
Table of Contents
List of Tables ............................................................................................... iii List of Figures.............................................................................................. iii The Deputy Prime Minister and Minister for Local Governments Statement.................................................................................................... iv List of Acronyms ....................................................................................... viii Chapter 1: Context and Constitutional Foundations of Devolved Government in Kenya ...................................................................................1
1.1 1.2 1.3 1.4 1.5 Introduction ................................................................................................1 The Centralized Colonial State................................................................... 2 The Constitution and Theory of Devolution ............................................. 6 Kenyas Unique Form of Devolution .......................................................10 Conclusion ................................................................................................. 13
Chapter 2: The Promise of Developmental Devolved Government ........ 15

2.1 Building Blocks for Cooperative and Competitive Counties ................... 17 2.2 Conclusions............................................................................................... 20
Chapter 3: Structures for Inclusiveness, Integrity and Effective Governance ................................................................................................. 21

3.1 Introduction .............................................................................................. 21 3.2 Issues on County Governance ..................................................................22 3.3 Recommendations ....................................................................................27 3.4 Expected Outcomes ................................................................................. 39 3.5 Conclusion ................................................................................................ 40
Chapter 4: Intergovernmental Relations ................................................ 42

4.1 Introduction ............................................................................................. 42 4.2 Issues on Intergovernmental relations ................................................... 43 4.2.1 Issues on dispute management and resolution ................................... 43 4.3 Recommendations ................................................................................... 44 4.4 Expected Outcomes ................................................................................. 45 4.5 Conclusion ................................................................................................ 45
Chepter 5: Delivering County Public Services for Prosperity ................. 46

5.1 Introduction ............................................................................................. 46
The Constitution is the expression of the will of the people

Draft Sessional Paper on Devolved Government in Kenya, 2011 Developmental Devolved Government for Effective and Sustainable Counties
5.2 The Public Service Delivery Issues ........................................................... 47 5.3 Recommendations .................................................................................... 51 5.4 Expected Outcomes ................................................................................. 55 5.5 Conclusions............................................................................................... 56
11.2 The Strategic Risks to the Transition to Devolved Government........... 118 16.3 Recommendations ..................................................................................121 16.4 Expected Outcomes .............................................................................. 122 16.5 Conclusions ............................................................................................ 122
Chapter 6: Building an Effective County Public Service ...........................57

6.1 Introduction ............................................................................................. 57 6.2 The Issue ................................................................................................... 57 6.3 Recommendations ................................................................................... 59 6.4 Expected Outcomes .................................................................................66 6.5 Conclusions...............................................................................................66
Annexes ..................................................................................................... 123

Annex I Glossary of Terms .......................................................................... 123 Annex II Anticipated Maximum Sizes of County Assemblies ................... 125 Annex III: Mapping of Functions from the Fourth Schedule, Constitution of Kenya, 2010 .............................................................................................. 127 Annex IV: Proposed Sector Clustering .........................................................131 Annex V - Recommended National Planning Framework ........................... 133 Annex VI - CEPOD Implementation Plan ...................................................... 137 Annex VII Transition Period Phase I ...........................................................138 Annex VIII Transition Period Phase II ........................................................139
Chapter 7: An Effective County Public Finance Management System ... 69

7.1 Introduction ............................................................................................. 69 7.2 The County Public Finance Issues ............................................................ 70 7.3 Recommendations .................................................................................. 78 7.4 Expected Outcomes ................................................................................. 85 7.5 Conclusions............................................................................................... 88
Chapter 8: Strategic Public Communication and Civic Education ..........91

8.1 Introduction ..............................................................................................91 8.2 The Issues ..................................................................................................91 8.3 Recommendations ................................................................................... 93 8.4 Expected Outcomes ................................................................................. 94 8.5 Conclusion ................................................................................................ 95
List of Tables
Table 1.1: Shared Institutions in the Constitution of Kenya 2010 .......................... 8 Table 3.1: Summary of Number of Wards Determination Criteria........................32 Table 3.2: Classification of Urban Areas in Kenya by Population Size Only ........ 34 Table 10-1: Recommended Legislation to Operationalize Devolved Government in Kenya....................................................................................................121
Chapter 9: Intervention and Suspension ................................................. 97

9.1 Introduction ............................................................................................. 97 9.2 National Government Intervention ......................................................... 97 9.3 Suspension of County Governments...................................................... 101 9.4 Conclusion ..............................................................................................102
List of Figures
Figure 3.1: Indicative Structure of the County Executive in Kenya ..................... 28 Figure 3.2: Proposed Further Units of Decentralisation in Kenya....................... 30 Figure 5-1: Recommended Functional and Competency Assignment Process...52 Figure 5.2: Functions and Competencies Unbundling Framework ..................... 53 Figure 10.1: The Risk Universe of the Devolution Implementation Process ...... 118
Chapter 10: The Implementation Framework for Transition to County Governments ............................................................................................105
10.1 Proactive Management of the Transition .............................................105 10.2 Transition to County Governments .......................................................107 10.3 The Transition Programme ....................................................................108 10.4 Recommendations..................................................................................113 10.5 Expected Outcomes .............................................................................. 114
Chapter 11: Strategic Risk Management Framework .............................117

11.1 Introduction .............................................................................................117
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The Deputy Prime Minister and Minister for Local Governments Statement
marginalization of certain sections of our society. These can only be ameliorated if implementation remains faithful to the tenets of devolution. Kenyans eagerly await the arrival of county governments. This long yearned for governments will require hard choices to be made. This Sessional Paper poses many of those hard choices we must make in building devolved government institutions, staffing them and resourcing them. This Sessional Paper outlines the policy framework for devolution and devolved government in Kenya. It proposes implementation mechanisms for the devolved system of government as envisaged in the Constitution of Kenya, 2010. Consequently, it provides the broad basic policy framework for legislation and administrative action to implement devolved government, as well as benchmark future institutional initiatives and actions on issues related to devolution in Kenya. It conceives devolution anticipated in the Constitution as the system through which Kenyans will develop robust governance and economic institutions with appropriate capacities to foster a cohesive and united country. The context and promise of devolved government in our national ethos, the historical and constitutional foundations of devolution in Kenya; the recommendations on strategic policy issues; the road map to implementation; and the resource and risk management framework are documented in this policy paper. After promulgation of the Constitution of Kenya, 2010 the government embarked on its implementation as outlined in its Fifth Schedule. A Cabinet Memorandum outlined the responsibilities for ministries as agents in the implementation, with the Office of the Deputy Prime Minister and Ministry for Local Government (ODPM & MoLG) designated the lead government agency on devolution. To fulfil this mandate, the ODPM & MoLG established a multi-sectoral and multidisciplinary Task Force on Devolved Government (TFDG) through Gazette Notice 12876 dated 25th October 2010. The TFDG comprised government technical experts, members of the academia, the private sector and civil society representatives. The Gazette Notice also established a high level National Steering Committee to facilitate the TFDG in respect of policy and resource mobilization. The TFDG was mandated, among other things, to make proposals for structures for effective implementation of devolution consistent with the provisions of the Constitution through the production of a draft policy paper and draft legislation. This policy framework would be the basis of proposed laws as well as administrative interventions for the implementation of devolution at national, county and sectoral levels. The process ensured extensive public participation through County consultation visits; and workshops, symposium, stakeholder forums and memoranda from
n the 4th August 2010, Kenyans voted for the Constitution of Kenya 2010, and it was promulgated on the 27th August 2010. The signing of the Constitution of Kenya 2010 ushered in the birth of a Second Republic, and provided the first step towards a journey of national renewal. Embedded in this renewal is a new Kenya where all citizens have opportunity to effectively engage in all aspects of socio-economic and political transformation of our nation encapsulated in the Constitution of Kenya, 2010 and Vision 2030. In executing devolved government, I fully expect that counties shall be in the vanguard of unleashing local economic development, through appropriate leveraging of local resources, with the requisite support from national government and other development agencies. The growth so generated, will be key to spurring the national growth effort, embodied in Kenya Vision 2030 and subsequent long term growth blueprints. The concept of devolution underpins and permeates every chapter of the Constitution. It is the game changer in our public life as a nation. Any attempt to undermine any of its aspects will negate the historic gains that the Constitution proffers. We should therefore avoid dilution of any aspects of devolution during implementation. Our future prospects as a nation are intrinsically linked in the minds of our people to the promise of devolution; that of placing government, development and decision-making in the hands of the sovereign citizens of our great nation. This Sessional Paper is therefore, an affirmation by the Kenyan people that we have rid ourselves of running a rigidly centralized system of government, which has left us a legacy of inequitable development, inter-ethnic conflicts, impunity and
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the widest reach possible. This had to be done not only because of the need to capture citizen views to enrich formulation of policy, but also because public participation in policy making is a constitutional requirement. Concurrently, there was interpretation, researching, documenting, benchmarking on the constitutional principles that underpin governance and devolution; cooperative governance and inter-governmental relations; functional distribution and service delivery at the levels of government; financial resources and management; leadership, representation, accountability and integrity; protection of minorities and marginalized groups; citizen participation and oversight, public communication and civic education. Within the confines of limited resources and strict constitutional timelines, an Interim Report on Devolved Government was released on April 20, 2011 for public debate. The Interim Report was subjected to a comprehensive validation process involving intense and extensive county validation; workshops with Members of Parliament, civil society and organized groups. In these meetings, the Interim Report draft bills were discussed and consensus built on policy-related issues. Amongst the key highlights of this validation process was an International Symposium on Devolved Government in Kenya held on June 7- 9, 2011 at the Kenyatta International Conference Centre. During this symposium, the TFDG shared its report with local and international experts, practitioners, academia and a broad cross-section of Kenyans on how devolved government in Kenya could be structured and operationalized. A collation of the inputs received from these consultations resulted in policy proposals on the implementation of devolved government in Kenya, which form the basis of this Sessional Paper and the six annexed draft bills on devolved government. The six Bills constitute the basic minimum legislation required at the nascent stage in the implementation of devolved government in Kenya. Subject to relevant future reviews, the Sessional Paper constitutes the basic framework, benchmark and reference for future institutional initiatives geared towards intervention and sustainability of decentralization of power, resources and responsibilities in Kenyas devolved governance system in conformity with the letter and spirit of the Constitution of Kenya. In the course of implementing the Constitution of Kenya 2010, Kenyans ought to guard against circumspect habits and attitudes that may constrain the momentum of implementation. The Constitution of Kenya 2010 must be understood broadly as the vehicle for transforming our society and devolution is its anchor. We
must therefore believe in the principle and support its implementation for the greater good of the country. Let all stakeholders including government ministries, departments, and civil society contribute to this process and protect it from any sabotage. We are all agreed that a harmonious approach on the basic framework for implementation of devolution is necessary, and I urge all stakeholders to contribute to this process. There should be no need for each sector to attempt to implement an aspect of the Constitution, in particular devolution in its own favour. In this respect, priority should be given to objective unbundling of functions in terms of actual components of a function that will be undertaken by the County governments and the national governments in order to effect the constitutional requirement that resources must follow functions. In this regard, it is critical for a robust public financial resources management system to be established along functional responsibilities as anticipated in the Constitution to avoid conflicts on the principle of sharing. It has been quite obvious in the formulation of this policy paper that bureaucratic inertia can breed unintended conflicts that could compromise transitional arrangements related to continuing public service delivery and transition to sustainable and viable county governments for posterity. This calls for the spirit of a shared destiny in matters of managing instruments and resources for transitional activities and in future relations between the two levels of government aware of the mechanisms for checks and balances entrenched in the instruments of devolution. It is in the context of the foregoing that the proposals on transitional arrangements including capacity building and training of human resource; infrastructure and financial arrangements; audit of liabilities and assets; functions transfer and financing to support this process are extremely in urgent need of inclusive and effectively coordinated implementation.
Hon. Musalia Mudavadi, EGH, MP, Deputy Prime Minister and Minister for Local Government
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List of Acronyms
AIDS ACHPR AIA AIE BOT BOO BOOT CCIC CBD CIPFA CCN CEPOD CSO CRA CoE CPS CDTF CP CDF CIC CIOC CoK CILOR CEDA EU GIS GJLOS GDP HIV IEBC ICT ICPAK IFMIS IGR IIEC IASB IFRS viii Acquired Immunodeficiency Syndrome African Commission on Human and Peoples Rights Appropriations in Aid Authority to Incur Expenditure Build Operate Transfer Build-Own-Operate Build-Own-Operate-Transfer Cabinet Committee on Implementation of the Constitution Central Business District Chartered Institute of Public Finance and Accountants City Council of Nairobi Civic Education Programme on Devolution Civil Society Organisation Commission on Revenue Allocation Committee of Experts Committee of Permanent Secretaries Community Development Trust Fund Community Participation Constituency Development Fund Constitution Implementation Commission Constitution Implementation Oversight Committee Constitution of Kenya Contribution in Lieu of Rates Convention on the Elimination of All Forms of Discrimination European Union Geographic Information System Governance, Justice, Law and Order Sector Gross Domestic Product Human Immunodeficiency Virus Independent Electoral and Boundaries Commission Information and Communication Technology Institute of Certified Public Accountants of Kenya Integrated Financial Management Information System Inter-Governmental Relations Interim Independent Electoral Commission International Accounting Standards Board International Financial Reporting Standards
ILO IPSAS JICA KADU KANU KACC KEPSA KRA LSK LA/LAs LASDAP LATF LPOs LSOs MTEF MPs MDGs MDA MoLG MoSPS NARC NTA NUGDPF NGOs ODPM PWDs PELF PRSP PCC PCM PA PETS PFMR PPOA PSC PPP RMLF REPLF RPRLGSP SWAP
International Labour Organisation International Public Sector Accounting Standards Japan International Cooperation Agency Kenya African Democratic Union Kenya African National Union Kenya Anti-Corruption Commission Kenya Private Sector Alliance Kenya Revenue Authority Law Society of Kenya Local Authorities Local Authority Service Delivery Action Plan Local Authority Transfer Fund Local Purchase Orders Local Service Order Medium Term Expenditure Framework Members of Parliament Millennium Development Goals Ministries, Departments and Agencies Ministry of Local Government Ministry of State for Public Service National Rainbow Coalition National Taxpayers Association National Urban Growth and Development Policy Framework Non-Governmental Organisations Office of the Deputy Prime Minister Persons With Disabilities Poverty Eradication Loan Fund Poverty Reduction Strategy Paper Presidential Coordinating Council Project Cycle Management Provincial Administration Public Expenditure Tracking Surveys Public Financial Management Reform Programme Public Procurement Oversight Authority Public Service Commission Public-Private Partnerships Road Maintenance Levy Fund Rural Electrification Programme Levy Fund Rural Poverty Reduction and Local Government Support Programme Sector Wide Approaches
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apter Ch
SMS SALGA TFDG TORs COAG TJRC UN UN-HABITAT WSTF WEF YEF Short Message Service South Africa Local Government Association Task Force on Devolved Government Terms of Reference the Council of Australian Governments Truth Justice and Reconciliation Commission United Nations United Nations Human Settlements Programme Water Services Trust Fund Women Enterprise Fund Youth Enterprise Fund
Context and Constitutional Foundations of Devolved Government in Kenya

1.1
enyas struggle for constitutional reforms has its roots in the desire to correct deficiencies in its post-independence governance framework which was premised upon the highly centralised system started in the colonial days. The main objective of this struggle has been the restoration of power to the people in order for them to manage their affairs, particularly in matters of local development. The post-independence governance framework was characterised by poor governance as evidenced by corruption, ethnic conflict, insecurity, political uncertainty; and poverty. Some of the negative outcomes include the alienation of large portions of society from the mainstream economy; wasteful public investments; massive poverty and ethnic animosity; and cut-throat political competition and intolerance. The post-election crisis was largely due to weaknesses in key institutions of governance including the constitutional framework, the judiciary, police, executive, electoral system, and parliament. The weaknesses of these institutions can be traced back to the over centralization of power in the Executive through post-independence constitutional and legal amendments. This resulted in monopolisation of power as opposition political parties were initially frustrated and eventually outlawed. State power was captured by a small political-cumeconomic elite that accumulated both political control and economic wealth x
Introduction
to protect the centralised system. Democratic advancement was stifled as the governance of the country drifted from constitutional rule to personal rule. The national goals of fighting poverty, disease and ignorance, which had been set at independence, were distorted.
detention without trial; rape, war crimes and the grabbing of African land for white settlement, among other violations. The independence struggle was informed by the need to confront and address these wrongs.
1.2
The Centralized Colonial State
1.2.1 The Post-Independence Quasi-Federal System

At independence Kenya adopted a fairly progressive liberal Constitution. Its 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. The independence Constitution created regions (Majimbo) with extensive political and development powers for delivery of public services. 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. This 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 constitutional compromise encompassed 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 who would remain in the ex-colony after independence. The regions were constitutionally empowered to make laws through an elected regional assembly. The regional assemblies had legislative competences (both exclusive and concurrent) on most of the local service delivery matters including agriculture, education, and community development, housing, and health services. There was, also, a system of local government to facilitate popular participation in governance. The design of the independence constitution was informed by the experience 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 local governance. This was to be achieved through devolution of political and economic power to the regions. It was envisaged that the fears of the ethnic minorities would be assuaged. Unfortunately, the quasi federal independence constitution was not allowed to consolidate and flourish. Within one year of independence, the process of 3
Discriminatory development in Kenya has its origin in the exclusive colonial system which was primarily established to serve the interests of the minority white settler community. The system did not allow representation for the majority Africans in the Legislative Council. The exclusion of Africans was wrongly premised on the argument that they could not articulate their issues and did not understand their best interests. The first African member of the Legislative Council was only nominated in 1944. Power was centralized in the Governor who represented the imperial government. There was no separation of powers as the Executive exercised immense power over both the Legislature and the Judiciary. . The Governor was president of both the Executive and the Legislative Council and was supported by a powerful administrative system, namely, the provincial administration. The system was based on central command and control. The economy of the colonial state was organized and managed along racial lines and was geared towards exploiting the Africans for the benefit of the Colonial State. Through legislation, including the Crown Lands Ordinances (1902 and 1915), Africans were deprived of most of their productive land which was allocated to the white settlers. Africans were restricted to occupying marginal land known as African Reserves which were designed as reservoirs for cheap labour extracted through coercion by way of legislation and taxation. Africans were reduced to squatters, a problem that has persisted to date. 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 highly controlled by the state. Through policy and legislative measures, therefore, the State determined the pace of economic development of the areas occupied by Whites and Africans. Over time, this created regional economic disparities that persist to this day. For about seventy years, the Colonial Government structure led to significant abuse of human rights. The colonial government engaged in forced labour; communal punishment; extra-judicial killings (of those who resisted colonial rule); 2
amending the constitution to recentralize power commenced, resulting in highly centralized and personalized rule.
1.2.2 Perpetuation of the Centralized State

Between 1963 and 1990, the independence Constitution was amended through more than 30 constitutional amendments. Historical analysis points out that these were primarily geared towards securing monopolization of power by the ruling party and the centralization of power around the Executive personified by the President. During this period, political competition was restricted and civil society curtailed as it was increasingly intimidated, co-opted or banned by the state. Over time, the state occupied the entire public sphere crowding out both political actors and the civil society. Apart from political and social control, the state also restated the discriminatory policies of colonial government. It favoured certain sectors of the economy while undermining others through policy and legislation. In keeping with the dominant centralized development model of the time, the state situated itself as the main agent of development. The policy was expressed in Sessional Paper No. 10 of 1965 on African Socialism and its Application to Development, the first national economic blueprint. It advocated for the focusing of development and investment on the high potential areas on the assumption that the economy would experience rapid growth due to the higher returns on investment in those areas. The policy zoned the country into high, medium and low potential areas. The zoning was primarily based on the needs of the settler economy which were anchored on the British needs at the time. 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 appreciation of the need to correct the imbalances created by the discriminatory practices of the colonial government. The independence government also adopted the policy of Africanisation of 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 only to those in the patronage system of friends, colleagues or ethnic political supporters.
From 1964 to 1973, economic growth performance was very impressive, achieving rates in excess of 6 percent per annum. During this period, industry expanded annually by about 10 percent with the import substitution strategy yielding good results. Agriculture on the other hand, grew by about 5 percent per annum, showing positive responses to expansion of African cash crop farming and increases in extension services. However, the benefits of this growth and improved performance in the economy were not equitably shared as anticipated under Sessional Paper No. 10 of 1965. The instruments for ensuring such distribution, the regional governments and other measures, were removed, curtailed or ignored. Thus, in its execution Sessional Paper No. 10 of 1965 had the effect of creating an economic elite and compounding economic differences among the regions. These elite sought to exercise unlimited control over state resources through centralizing and monopolising power. This allowed them to dispense patronage to both individuals and ethnic communities and it inevitably led to massive abuses of power.
1.2.3 The Problem of Centralization

The capture of the state by these elite led to control of both political and economic power in the entire country. The concept of republican government, therefore, as an instrument in the service of the welfare of the people became extinct. Government ceased to serve the people and became the property of a few. Elective and appointive positions became, not the means to serve the people, but rather, avenues for amassing personal wealth. The notion of servant leadership was replaced by personal aggrandizement, corruption, mismanagement and plunder of public resources nursed by political patronage. Allocation of resources and development opportunities was done on the basis of political patronage instead of objective criteria and the most important person in this process was the President. This excluded people from government services creating a feeling of marginalization in many parts of the country. Centralisation led to strong feelings of exclusion, birthing and sustaining the perception that one had to have one of their own in a key political public office to access government services and opportunities. Because of this, political and public service office became intensely valued prizes. Indeed, the presidency became the ultimate price. In excluding local people from making of decisions that affected their lives, centralisation failed to facilitate local solutions to local problems. This occasioned wastage of resources and misguided priorities. Frustrations arising from the centralized system laid the ground for the democratic reforms of the 1990s and the Constitution of Kenya 2010 (CoK 2010). This struggle forced the state to introduce 5
various strategies for addressing the problems of the centralized state, including muted efforts at fiscal decentralisation. Consequently, the adoption of the CoK 2010 aims at fundamentally altering the governance framework through far reaching reforms. Of these, devolution of political power, responsibilities and resources have the most profound and transformative impact on governance and management of resources. If faithfully implemented, the CoK 2010 in general, and devolution in particular, should lead to revolutionary transformation of Kenya and facilitate achievement of Kenya Vision 2030. Devolution, however, is the most complex and the least understood aspect of the CoK 2010. It permeates all spheres of society and organs of government. Effective implementation of devolution, therefore, calls for recognition of this fact. It requires a comprehensive and well-coordinated whole-of-government strategy based on consultation and cooperation among the various arms and departments of government. It would therefore be a serious misjudgement for any government entity to think or assume that it has nothing to do with devolution or that it can implement devolution selectively and in isolation. Devolution in the Kenyan context can, therefore, only be best understood within the context of a clear appreciation of the concept of a constitution. This process must begin with the understanding of the concept of a constitution and its role in governance.
our governance system. This meant that Kenyans settled for a multi-dimensional approach to the organization and management of governance and state power and hence the devolved system of government.
1.3.2 The Theory of Devolution

A devolved system of government involves the constitutional creation of two or more levels of government with assigned functions and resources. The levels of government 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, with the functions and resources to be used for their discharge being set out and defined by the constitution. 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 themselves and their locality. They are allowed a measure of self-governance at this level but at the national level, decision-making is shared. The people of Kenya organized in their different counties share in the making of the decisions that affect the whole country and the whole population. Therefore, the laws which are made at the national level are applicable to and enforceable in the whole country. Because of this, there must of necessity be some shared institutions through which shared decisions can be made. Indeed, the entire national government is structured to provide infrastructure through which the people of Kenya, organised through the 47 counties, are able to share in the making of decisions that affect the whole country.
1.3
The Constitution and Theory of Devolution
1.3.1 Concept of the 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 and provides a power map for the construction of the society and the running of the affairs of State. There are two approaches to the organization of governance and management of State power. The first is the single-dimensional approach which follows a single horizontal dimension in its organization and management of governance and State power. It produces a centralized 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(2)(a) of the CoK, 2010, devolution and sharing of power were identified as values and principles that would guide 6
1.3.3 The Concept and Role of Shared Institutions

Most of the institutions at the national level of government provide infrastructure for cooperation, consultation and consensus building in the processes of making decisions on what constitutes the common good of the people of Kenya. Institutions are shared because they participate in shared decision-making as well as rendering services to both levels of government. Some of the shared institutions are not necessarily national government institutions such as independent commissions and offices. One of the most important shared institutions in the architecture and design of a good devolved system of government is the Bicameral Parliament. One of the houses is conceptualised and structured in a manner that draws from electoral
units determined more on the basis of population. But because this can easily tilt the scales in favour of counties that have higher populations and thereby undermine effective shared decision making; the other house is structured in a manner that ensures a measure of equality of the counties in decision making. This second house is conceptualized as representing the counties with the votes belonging to the counties rather than the individual senators. Quite apart from the Bicameral Parliament, the CoK 2010 establishes other shared institutions. Some of the most important shared institutions are indicated in Table 1.1.
Table 1.1: Shared Institutions in the Constitution of Kenya 2010

No. 1. 2. 3. Constitutional Provision Article 59 Article 67 Article 79 Institution Human Rights and Equality Commission The National Land Commission Ethics and AntiCorruption Commission The Independent Electoral and Boundaries Commission Parliament Remarks Enforces human rights at both levels of government Manages public land at both levels of government Enforces the constitutional integrity standards at both levels of government and in all counties. Manages elections at both levels of government and in all counties Comprises the National Assembly and Senate. Provides a forum through which counties share in making legislation at the national level Recommends the vertical and horizontal sharing of revenue raised nationally Controls expenditure by both levels of government and in all counties. Audits and reports on the accounts of both levels of government and in all counties. Sets salaries for certain categories of public servants at both levels of government and recommends salaries for other categories of public servants at both levels of government and in all counties. In addition to its duties to national government, hears appeals of public servants of all county governments.
government must not become the property of only one community, county or group of communities or counties. Even the other shared independent state organs must not fall under the capture of a few. Both national government and independent state organs must serve the whole country, all counties and all the people of Kenya and must not be unduly controlled by only one county or community or a group of counties or communities to the exclusion of others. Their organization and discharge of functions should be decentralized to ensure that their services are accessible to all, in terms of Articles 6 and 174 of the constitution. These needs should inform the development of policy, legal and institutional infrastructure for intergovernmental relations.
1.3.4 The Value Foundations of the Constitution

In addition, the implementation of the devolved system must be informed by the constitutional value foundations upon which Kenyans want to base their governance system. The CoK 2010 is founded on a very strong value system. It seeks to identify, and establish certain values as the foundation of the governance system. These values, it is expected, should inform and lead to a system of good governance at both the national and county levels of government. Various chapters and articles of the constitution put in place a value system providing a framework within which the governance institutions are expected to operate. 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. It refers to a system of government meant for the common good. James Madison in Federalist Paper No. 39, defined republicanism as a system of government in which all authority to govern belongs to and derives from the people directly or indirectly. Those administering that authority, do so during the pleasure of the people, for a limited period of time and subject to their good behaviour. Republican governance is representative in nature and demands servant leadership that does not usurp the power of the people and use it for personal aggrandizement, but instead focuses on service to the welfare of the people. The authority and power of the people, therefore, cannot be used to impoverish and destroy the people but to serve their welfare. Since governance is representative, the challenge for contemporary constitution making is how to secure a leadership of integrity which focuses all its efforts on serving the welfare of the people and avoids conflict between personal and public interests.
4.
Article 88
5.
Article 93
6. 7. 8. 9.
Article 215 Article 228 Article 229 Article 230
Commission on Revenue Allocation The Controller of Budget The Auditor General Salaries and Remuneration Commission
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Article 233
Public Service Commission
The operationalization of this concept of shared governance must ensure shared institutions are not captured by sectarian interests that make them serve the interests of a few counties or communities. Granted that the top leadership of national government may come from a particular community and county, national
Kenyans, through Article 4 of the CoK 2010, adopted republicanism as a key value foundation. In several other articles, the various other aspects of the doctrine are captured in the CoK 2010. First, it recognizes the sovereignty of the people as the source of all authority to govern. Second, government is established and instituted by the people to serve their welfare. Third, those to whom authority of government is delegated do so during the pleasure of the people; for a limited period of time; and subject to their good behaviour. Fourth, openness, transparency, and accountability as opposed to secrecy in governance are central. Fifth, leadership ought to be based on the principles of integrity and service to the people.
can be abolished by the other. 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 CoK 2010 without undue interference from the other. Indeed the principle of interdependence requires a certain measure of mutual respect between 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. The two levels of government are also inter-dependent since devolution combines self-government at the local level and shared government at the national level. Inter-dependence is necessitated by the fact that consumers of services rendered by the two levels of government are the same citizens of Kenya, although located in different parts of the country. In the distribution of functions, quite a number of functions are concurrent in nature; and others are assigned on the basis of national government formulating national policy and setting national standards while the county level is assigned the implementation functions. Policy formulation and national standard setting functions of national government include a monitoring and evaluation aspect that creates a limited measure of oversight. Such oversight cannot therefore be intrusive, but rather facilitative. Inter-dependence then becomes the foundation of the concept of cooperative government. According to Articles 6(2) and 189(1)(b) and (c), inter-dependence requires that the two levels of government not only cooperate with, 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. Cooperative devolved government requires that as a country, we move away from the usual adversarial approach to issues and embrace a system of consultation, negotiation and consensus building in running of state affairs. This ties in with the expectations for a shift to issue based politics espoused under Kenya Vision 2030. Both vertical and horizontal intergovernmental relationships between national and county levels of government; and among county governments respectively, should be based on and informed by these principles of cooperative government.
1.4
Kenyas Unique Form of Devolution
1.4.1 Cooperative System of Devolved Government

Box 1.1: The Kenyan Form of Devolution Creates system that combines a measure of autonomy and inter-dependence leading to a Cooperative System of Devolved Government Assigns each level of Government functions - exclusive, concurrent as per Article 186 and Schedule 4 of the Constitution thus establishing development mandates for each level of government Under Article 189(1)(a), demands that both levels work together in a manner that does not damage the integrity functional and institutional - of the other level clear intergovernmental relations A constitutionally entrenched system of intervention, conflict management and resolution Clear provisions on resource sharing and management Constitutional requirement for citizen participation
Devolution comes in various forms depending on the context of each country. Indeed Kenya has adopted a form that is unique to itself. It is based on Article 6(2) which describes the governments at the two levels as being distinct and inter-dependent and which conduct their mutual relations on the basis of consultation and cooperation. This is not based on the principle of absolute autonomy. It combines a measure of autonomy and interdependence leading to a Cooperative System of Devolved Government. Cooperative devolved government is founded upon three relational principles; namely, the principle of distinctness; the principle of interdependence; and the principle of consultation and cooperation.
The two levels of government are and should be distinct in their constitutional functions, institutions, resources and legal frameworks. They are coordinate and not subordinate to each other. None is a mere agent of the other and neither 10
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1.4.2 Objects and Principles of Devolution in Kenya

Article 174 of the Constitution of Kenya identifies the objects of devolved government as the promotion of democratic and accountable exercise of power; fostering of national unity by recognizing diversity; giving of powers of selfgovernance 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; recognition of the right of communities to manage their own affairs and to further their development; protection and promotion of the interests and rights of minorities and marginalized communities; promotion of social and economic development and the provision of proximate, easily accessible services throughout Kenya; 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 enhancement of checks and balances and the separation of powers. Article 175 sets out the guiding principles of devolved governments. The county governments should be based on democratic principles and separation of powers; be availed reliable sources of revenue to enable them to govern and deliver services effectively; and must ensure that each of the genders have at least a third of the members of representative bodies in the county. These objects and principles reinforce the reasons why the Kenyan people sought a new dispensation. Citizens made it clear that devolved government in exercising its functions, in relating with the national government and its citizens must adhere to these objects and principles. The structures and instruments of county government must, therefore, mainstream these tenets within them. The institutional organisational cultures that manifest themselves in counties must be reflective of these objects and principles. More critically, these must also be mirrored by national government.
be clearly delineated ensuring some autonomy for each. In the assignment of functions, the principles of subsidiarity, transferability of functions and the three categories of functions; namely, the exclusive, concurrent and residual functions are observed. Article 186 and Schedule 4 of the CoK 2010 assign functions to the two levels of government. Constitutional provisions setting out clear rules for the allocation of resources among the levels of government are prerequisites. This ensures 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. The CoK, 2010 (articles 190, 201, 202, 203, 204, 209, 212, and 213 among others) provides for how each of the two levels of government gets their proportion of resources. The constitution creating the devolved system is supreme and its amendment must be subject to approval by the levels of government. Articles 255, 256 and 257 of the CoK 2010 provide for an amendment process that requires the approval of the two houses of Parliament. Some amendments, in fact, require approval by county assemblies while others require a referendum vote. 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 is required. The CoK 2010 provides for this through Articles 6 and Article 189 amongst others. A constitutionally entrenched system for dispute management and resolution between the two levels of government is a general feature. Articles 159, 163,189,190, 191,192, 225 amongst others provide for conflict management and resolution to ensure harmonious relations between the two levels of government.
1.4.3 The 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 have a number of characteristics. The constitution must create two or more levels of government with each having sovereignty and directly impacting upon its citizens. The Kenyan system has settled for two levels of government. Article 176(2) contemplates further decentralisation below the county government, while Article 184 provides for national legislation to cover urban areas and cities. Article 6 (1) provides for 47 counties. A formal constitutional distribution of governance and development functions for each level of government must
1.5
Conclusion
The CoK 2010 affirms one nation, organised at two levels of cooperative government, with distinct, but interdependent governments. This by and large implies that the relations between the two levels will have to respond to these imperatives. This being the unique form of devolution that Kenya has adopted, the following chapters discuss in greater details the architecture, design and operation of devolution as envisaged in the CoK 2010. They make policy recommendations and legislative proposals on how best to implement the system. 13
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enyas historical context and its legacy have left the nation with major developmental challenges. These challenges clearly portend an urgent need for an intense shift towards a focus on Box 2.1: Citizens Expectations of Devolved development. No one is more Government aware of this need than the 1. Devolved government should lead to citizens as was discerned from national renewal the county visit submissions 2. A nation built on equity and equality for (see Box 2.1). Citizens across all Kenyans the country made it clear that 3. An inclusive nation where everyone feels the mission for the counties they belong should be that of achieving 4. Equal opportunity for all positive and affirmative 5. Design of policies that reduce inequality development outcomes for in the country the citizens. 6. Assurance of positive relations between the people and their leaders These include job creation, 7. A reduction in the adverse effects of harnessing local potential, politics on governance integrating the counties 8. A bringing of the government closer to with the nation, amongst the people others. County governments, 9. Devolved governments as a platform for therefore, will have to prepare accessing services to focus on development, 10. Improved livelihoods and citizen hence the Concept of empowerment Developmental Devolved
The Promise of Developmental Devolved Government
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Government. In these challenges and in the faithful implementation of devolution lies the seed for national rebirth. Indeed, the adoption of CoK 2010 and devolution, therefore, promises development to the people. The CoK 2010 decrees a fundamental shift in the philosophy of governance. It adopts a philosophy founded on solidarity and redistribution and a development framework informed by the concept of financial equalization. This demands that we identify our priorities well and focus on putting infrastructure in the previously neglected areas which now hold the potential for our future growth. The generation of more wealth and expansion of the common basket to be shared lies more in the exploitation of the potential of the previously neglected areas. Concurrently, the areas where potential for growth has been encouraged and exploited should be incentivized to realize their full potential. According to the 2009 Population and Housing Census, Kenyas population was 38.6 million with a sex ratio of about 1:1, and an inter-censal growth rate of 2.6 percent. The population distribution shows that 53.6 percent of the total population is aged 15-64 years; 43.0 percent is aged below 15 years and 3.4 percent is above 64 years. The Census data also shows that Kenya is also rapidly urbanising. The population data for Kenya, therefore, clearly shows that there is a momentous demographic transition taking place in Kenya. This transition is characterised by a huge rise in the population size, and a youthful and productive population, that is highly urbanised. It is also accompanied by a significant rural population. Lessons from Latin America suggest that, the relative youth of its population, make the transformation of its urban economies urgent if Latin America is to positively reap from its demographic dividend. This it can only do if its economies generate high-productivity jobs for its large, young and urbanised workforce.1 The same situation applies to Kenya. Developmental devolved government must yield functional development for the estimated young and urbanising 64 million Kenyans by the year 2030, taking into account the rural populace. By this, it is expected that the era where hospitals, schools and other facilities were built, without the requisite operational resources to enable their utilization 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 expected that developmental devolved government will and must actually lead to outcomes anticipated in CoK 2010 and Kenya Vision 2030 and expected by citizens.
1 Cadena, Andres et. al (2011) Building globally competitive cities: the key to Latin American growth. McKinsey Global Institute, August 2011
2.1
Building Blocks for Cooperative and Competitive Counties
Developmental devolved government must focus on delivering public services that allow citizens to function at their full potential. This means that counties and their respective governments must become arenas where development discourse is the main agenda. In doing this, counties will compete and cooperate with and among themselves if they are to achieve the desired development outcomes. The foundations of developmental devolved government will be to commit to incorporating citizen participation in all developmental initiatives at the county level. Counties will have to cooperate in order to 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 facilities, promoting inclusive growth and generally managing counties for prosperity. The prosperity of the new counties is dependent on enhancing access for opportunity to all citizens while ensuring adequate environmental protection. As we struggle to attain and maintain economic competitiveness, the constraining effect of administrative boundaries becomes a matter of concern as Kenya struggles to realize development through the 47 counties. As earlier discussed, counties will have to respond to Kenyas urbanisation. Globally, the evidence available shows that the preponderance of economic growth will come from such urban areas. In their report, Urban World: Mapping the Economic Power of Cities2, 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 centres, with a fifth of the worlds population, generate 60 per cent of global GDP. In 2025, we still expect 600 cities to account for 60 per cent 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.
2 Dobbs, Richard et. al. (2011) Urban world; Mapping the economic power of cities. McKinsey Global Institute. March 2011
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It is therefore imperative that counties factor in measures to influence the development of urban areas as engines of economic growth. In this process, care should be taken to ensure that there is effective linkage between urban areas and the rural hinterlands, where many Kenyans will still reside. Therefore, this Sessional Paper recommends that an overarching National Urban Growth and Development Policy Framework be expeditiously put in place. This policy framework must seek to rationalise and coordinate urban development issues not only within counties and between counties, but also across the whole nation. Its key concern should be to align service delivery to the desired developmental outcomes, focusing on ensuring urban centres that are competitive, have quality facilities, are well governed and facilitate citizen participation.
2.1.2 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 maintenance of facilities will be essential to the success of the counties. 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 aspect of a public service function is pertinent. Global experience shows that allocation of resources must be informed by the assignment of functions following the principle that resources must follow and match functions. The recognition of the close nexus between service organisation and responsibility on the one hand, and public finance allocation on the other, is important. The key concerns should be efficiency, effectiveness and appropriate citizen participation.
2.1.1 Growing and Sustaining County Cooperative Competitiveness

The ability of the counties to create wealth and enhance welfare outcomes for their citizens will depend on how well they are able to leverage their endowments, within the national, regional and global operating contexts. Attracting jobs that improve the welfare of citizens will not be achieved through lone ranger efforts. Experience elsewhere suggests that to prosper, Kenya and its counties must leverage four key assets innovation, human capital, and infrastructure and quality facilities. Given the level of inequality among and within counties as well as close kinship linkages, it is feasible to consider competitiveness and complementarities within clear cooperative and collaborative frameworks. Such an arrangement responds to application of the cluster concept. The adoption of the cluster approach to industrialization, value addition for agriculture and industry and provision of common and shared services requires that counties must of necessity work together. Counties will have to adopt spatial forms that will be most appropriate to their development needs. Available literature on the subject identifies a number of spatial forms, including development 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). This points to a more deliberate and focused application of integrated economic and spatial planning in counties specifically and the country generally.
2.1.3 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 investment and engagement? Literature shows that the quality of a place is a major ingredient to attracting the necessary human and other resources to achieve desired development outcomes. The United Kingdom government in its strategy for improving the quality of places has observed that places where people live have a profound effect on their quality of life and life chances. This takes effect in various ways such as crime and pollution levels, employment opportunities, social ties and opportunities for community engagement, and the range and quality of local services, transport links and green space. The quality of a 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. The demands of the CoK 2010 and the imperatives of a competitive economy, as well as the rapidly expanding population mean it will be important for counties to prioritize realization of quality places. 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,
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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 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 population in the major urban areas is largely male and youthful.
2.1.4 Managing Counties for Prosperity

The CoK 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 CoK 2010 in articles 176 and 184 provides for further decentralization by the counties and legislation for governance and management of urban areas and cities. In providing for the governance of urban areas and cities it is imperative that attention be paid to the very important economic growth role played by these units.
Structures for Inclusiveness, Integrity and Effective Governance

3.1
ounty governments represent the lynchpin of developmental devolved system of government. Arising out of the national development challenge, it will be necessary to ensure that more resources are allocated towards development, rather than recurrent expenditure. Therefore, in operationalizing county governments, creation of cost effective structures which are necessary for inclusiveness, integrity, participation and effective public administration is a key requirement. This chapter provides direction on the matters related to county governance. It focuses on units and structures of governance, governance of counties, including public administration; units of further decentralisation; governance of urban areas and cities; classification of cities and urban areas; integrated planning and service delivery; inter-city and municipality forums; citizen participation, protection and inclusion of marginalised communities and groups. Effective governance of counties requires legislative, administrative and executive structures which are adequately aligned, and respect constitutional foundations of devolved governments. The positions articulated herein inform the various pieces of legislation, facilitate the operations of devolved governments as well as provide the framework around which national government shall restructure its operations in the counties.
2.2
Conclusions
The CoK 2010 seeks to reverse the centralized non -participatory governance paradigm by institutionalizing an embracing governance and leadership system based on integrity. It does this primarily by establishing an enabling normative framework. It provides for relevant governance institutions; checks and balances on the exercise of executive power; 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.
Introduction
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3.2
Issues on County Governance
3.2.1 County Structures

Kenya is emerging from a centralised system of governance consisting of many actors, characterised by overlapping roles and responsibilities. This system comprised the central government, including the provincial administration and local authorities. In its twilight years, the role of Members of Parliament in the set-up was becoming ubiquitous. Over the years, the governance of the conflicting structures became a major challenge and a bottleneck to realising development goals, especially in respect of planning, resource allocation, management and oversight. The county governments, like other political organizations will require political, administrative and legal structures which must be aligned for effective delivery of services to the county residents. This will require that county governments have the instruments to establish administrative structures for executing their executive and legislative functions. The CoK 2010 provides for two levels of government national government and county governments. County Government will consist of a County Assembly and a County Executive as provided in Article 176(1) of the CoK 2010. Overall governance of the county shall be the responsibility of the County Assembly and County Executive. Box 3.1: Policy Questions on County Governance Structure County Assembly Number of Wards per County Size of the County Assembly County Executive Establishment of County Executive Appointment of County Executive County Governance Levels of further decentralization County public administration Urban Areas and Cities Classification of urban areas and cities Governance and management of cities The County Assembly, which is the legislative arm of government, shall be established in each county in accordance with Article 177 of the CoK 2010. The legislative authority of the county assemblies is found in Article 185. Amongst other things, the new assemblies are expected to enact legislation, and to receive and approve county budgets, plans and policies for the management and exploitation of the countys resources and the development and management of its infrastructure and institutions. The county assembly, as envisioned in the CoK 2010, is clearly a more
complex and active participant in the governance of county matters, than the councils in current local authorities. On the other hand, according to Article 179, the executive authority of a county is vested in the county executive. This county executive comprises of the governor, the deputy governor and such number of county executive members as provided under Article 179(3). Article 176 (2) provides for further decentralisation and acknowledges the importance of urban areas and cities, with Article 184 (1) stating that national legislation shall provide for the governance and management of urban areas and cities. Apart from this provision, the Constitution of Kenya, 2010, in respect of existing local authorities, says in the Sixth Schedule, Part 4, Section 18 that, all local authorities 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. Box 3.1 documents the key policy issues in respect of the structure of county governance. These issues relate to the levels of governance below the county, the establishment, management and control of urban areas and cities within counties, the number of wards in a county, the anticipated size of county assemblies, and the structure of the county executive.
3.2.2 Citizen Participation

In the past, while there have been many organisations and institutions engaged in development, majority of citizens have not been effectively engaged in local development. Public participation in governance is an important element of democratic theory and practice. It is an approach to citizen empowerment inspired by the spirit of the African Charter on popular participation in development and transformation among other relevant international conventions. The basic principles underlying the practice of stakeholder engagement informs the treatment of citizen participation as a crosscutting issue that must be mainstreamed in all aspects of governance. As a central principle of public policymaking, it presupposes that all levels of government should seek to build citizen and stakeholder involvement into their respective policy making processes and activities. This implies that if public participation is to be effective, sovereign citizens must be involved in all aspects of design, planning and management of development, and enjoyment of related benefits. The right of citizen participation is enshrined in the UNs 1948 Universal Declaration of Human Rights. It is also a core element of democratic development of a 23
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modern society. However, Kenya has had a challenge of providing structures and modalities for effective public participation relevant for ensuring participatory governance. Citizen participation for a long time in Kenya was taken for granted and where it was done, the quality was poor and was put in place as a mere formality. Various studies in Kenya have shown that, although the importance of citizen participation had been recognised in independent Kenya, its actualisation was at best token and at worst non-existent. Citizens were not given effective chances to make proposals relevant for influencing key decisions and preset positions by governors and their agents. The CoK 2010 seeks to reverse this trend and ensure that participation improves accountability and prudent and responsible use of public resources. Citizen participation is now explicitly recognised in Article 10 of the CoK 2010 as a national value and a key principle of governance. It further provides in Article 69 (d) that the state should encourage public participation in the management, protection and conservation of the environment. Article 118 1 (b) requires Parliament to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. Article 174 provides for the objective of devolution to enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them. In essence devolution does not only affect county but also affects how national government will conduct its affairs. Article 184 requires that residents must be involved in governance of urban areas. Article 196 requires the participation of citizens in legislative and other matters of county assembly and its committees. These provisions, amongst others, provide an anchor for ensuring meaningful citizen participation, through which citizens will be empowered to actively advocate for the delivery of essential services at both national and county levels of government. These frameworks are also key avenues for meeting other constitutional thresholds in respect of the recognition and protection of the rights of minorities and marginalised communities and groups. Meaningful citizen participation in democratic governance processes also requires informed and active citizens. They must understand not only their rights and responsibilities, but they must also be aware of the action windows through which they can participate. They must know how and when to voice their concerns; act collectively and hold public officials accountable. This is key to ensuring responsive public policy. Useful modalities for ensuring citizen participation include referenda, social budgeting, petitions, County fora, public barazas, neighbourhood associations, town hall meetings, monthly revenue and expenditure reports, public access to contractor/supplier profiles, quarterly development status reports, notice board 24
announcement, use of ICT and web based public monitoring platforms among others. These modes of citizen-state engagement motivate governments to act in response to citizens demands, complaints and requests as well as putting pressure on relevant decision makers to act and address service delivery deficits.
3.2.3 Protection and Inclusion of Marginalised Communities and Groups

Minorities, marginalized groups and communities in Kenya face various challenges. Firstly, the loss of land rights, historical injustices, including exploitation of their resources without their participation or benefit. This is illustrated by the numerous court cases involving marginalised communities. Secondly, Kenya for many years has adopted the needs based approach to development, which, in the Kenyan context prioritised key development initiatives on immediate political gains. Consequently minority and marginalised groups were left out. Thirdly, by virtue of their numbers, the minority and marginalized communities and groups are unable to have their representatives win national elective office. This compounds the challenge of lack of political representation, recognition, participation in governance and resource sharing. Fourthly, the denial of cultural rights, where they have suffered loss of culture as a result of the domination by the other communities and in some cases through forced integration. Fifth, the issue of insecurity as areas occupied by the minority and marginalized communities have serious insecurity problems. Sixthly, the minority and marginalized communities are often excluded in accessing employment opportunities. Other related problems faced by these groups include: being subjected to cultural beliefs and practices that subordinate them, exclusion from leadership and decision making; lack of access to property; discriminative laws and policies; lack of affirmative action; human trafficking and prostitution especially on the part of women and young girls; violence especially against women and people living with disability and inequality in attaining citizenship especially among women. Minorities, marginalized groups and communities in Kenya and the world over continue to face serious threats, discrimination and exclusion at the hands of dominant sections of society. They are frequently excluded from taking part fully in the economic, political and social life of their countries and societies. The 2005 World Summit of Heads of State and Government outcome document, approved by the General Assembly, states that the promotion and protection of the rights of persons belonging to national or ethnic, religious, and linguistic minorities contributes to political and social stability and peace and, therefore, enriches the cultural diversity and heritage of society. Respect for the minority, marginalized 25
groups and communitys rights assists in achieving stable and prosperous societies, in which human rights, sustainable development and social security are achieved by all, and shared by all. The CoK 2010 provides a legal framework for the recognition and protection of the rights of the minorities and the marginalised communities and groups. Devolution is seen as a solution to redressing problems of marginalization. Article 10 of the CoK 2010 provides for the protection of the marginalized as one of the national values, while Article 27 of the CoK 2010 outlaws discrimination. Article 56 provides for affirmative action programs for the minority and marginalised groups and communities, Article 91 mandates political parties to respect and include marginalised groups in leadership and Article 201 provides that protection of the marginalised is a key public finance principle. Article 260 of the CoK 2010 defines marginalized community as a relatively small population or for any reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole; 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; an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter gatherer or economy ;or pastoral persons and communities, whether they are nomadic or 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. In the same article, 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. There is generally no single agreed definition of minorities in international law. But all definition are based on age, sex, religion, ethnicity, race among others. There are two ways of defining minorities. Firstly, the national minorities who are afforded protection for being a minority in relation to national demographics. The second is by looking at the minorities within the geographical boundaries of the county.
3.3
Recommendations
The structure of county governance is going to be an important instrument in implementing devolved government in Kenya. In determining the structure of county governance, it is imperative that the requirements for ensuring citizen participation and protecting minorities and marginalised groups are embedded. Further, measures to ensure lean and efficient structures that will not only respond to the developmental needs of the citizens, but also ensure more resources are allocated for development purposes must be taken. These structures must also ensure accountability and respect all relevant constitutional provisions. They must also correct the bane of previous structures, which created multiple channels of resource acquisition, with no accountability for service delivery. In doing this, counties will be provided enough room to innovate in managing their resources for the benefit of their people and the nation of Kenya.
3.3.1 The County Executive

The county executive shall be responsible for policy and decision making as well as overseeing implementation of county policies and county legislation. The County Executive shall be headed by the County Governor assisted by a Deputy Governor. The two shall work with a team of appointed Executive Committee Members skilled in a number of areas, including finance and economic planning; spatial planning; transport and environment; public safety and security; human capital development; infrastructure and economic services; agriculture, livestock and consumer affairs, and inter-governmental affairs. Each County Governor shall have the leeway to organise their administration within the confines of the CoK, 2010 and related legal provisions, including the nature of functions the county has to implement. The county government departments shall be established on the basis of the functions assigned by the Fourth Schedule of the Constitution. While it is not necessary for the names of the departments to correspond to those of the national government, they may be close enough to facilitate intergovernmental relations. The establishment of the departments will depend on the number of executive positions in a county. However, given the functions assigned the most important departments that may be established are those that deliver health, agriculture, planning and finance, environment and natural resources, administration, infrastructure (roads, public works, transport, housing and energy), social services, trade and industry and legal affairs.
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The Governor shall delegate to each county executive member the responsibility for one or more departments of the county government. It is also expected that the Governor will appoint one principal secretary as the head of administration for each department. The officer shall be the accounting officer of the department and also accountable to the county assembly for the financial affairs of the department. Units in each department shall be headed by senior professionals with qualifications that may be prescribed through national regulations or norms and standards. This is important for ensuring that service delivery is in accordance with county and national standards. Figure 3.1 provides an indicative model structure for the county executive. Qualifications for County Governor and Deputy Governor shall be outlined in national elections legislation. It is recommended that for one to be elected a County Governor or to a Deputy Governor, one must possess a minimum of a Degree, from a recognised university.
In order to operationalize Article 177 and Chapter 6 of the CoK 2010 and ensure the election of Governors and Deputy Governors of high moral integrity and competence, the leadership and integrity requirements, vetting process, and educational qualifications shall be embedded in national legislation on devolved government. The impeachment of the Governor, Deputy Governor and the county executive shall be embedded in national legislation. It is recommended that national legislation on devolved governments shall set out the roles, responsibilities and functions of the Governor, Deputy Governor and Executive Committee, procedures as well as criteria for the establishment of county departments and operational protocols. Modalities for the removal of County Executive Committee Members before the expiry of their term shall be provided in this legislation. National and county legislation shall provide for the involvement of the public in the preparation of plans, budgets and policies of the county; and the monitoring of the performance of county governments; and regular engagement between elected and appointed county executive officials on one hand and county residents on the other hand.
Figure 3.1: Indicative Structure of the County Executive in Kenya
3.3.2 Administrative Structures

The county administration shall design management and organizational structures with well-defined responsibilities. Article 176 (2) provides for further decentralisation in County governments and it is appropriate to provide policy direction for Counties across the Republic of the envisaged nature of further decentralisation. Taking into consideration the expansive nature of Counties and the principles of efficiency, effectiveness, accountability, equity, citizen participation and subsidiarity, among others, it is prudent for Counties to have lower units of administration and governance for efficient service delivery. The argument has been whether the decentralization should be to existing administrative or political units. The advantage of aligning levels of administration to political units is that it facilitates the supervision of the work of administrative functionaries by the elected representatives. It is recommended that county governments shall decentralize to three units below the County, namely the sub-county, the ward and the village as illustrated in Figure 3.2. These should serve as units of administration, service delivery and citizen participation. 28 29
Figure 3.2: Proposed Further Units of Decentralisation in Kenya
Under the devolved system of government, the national government will continue to provide constitutionally assigned services and be represented at the county level. The critical role that county governments will play in delivering services with significant impact on citizens welfare implies that there shall be strong and effective cooperation between the two levels of government at the county level. It is anticipated that the mechanisms for such cooperation will be agreed within the context of intergovernmental relations outlined in legislation. The Sub-County units shall be administered by qualified Sub-County Administrators responsible for the coordination, management and supervision of the general administrative tasks; while the wards shall have a Ward Administrator to coordinate, manage and supervise the general administrative tasks in the wards. The Ward Administrators shall be answerable to the Sub-County Administrators. The village units established by County Governments shall be administered by village administrators assigned by County Governments. A village is an administrative unit created below the ward to serve as a unit of service delivery and citizen participation. In delineating villages, regard shall be given to the existing sublocations to ensure cost effective administration.
3.3.3 Restructuring the Provincial Administration

County government administrative and technical staff shall be posted mainly to the sub-county and ward levels to work under administrators at each level. The village will be the lowest service delivery point in a county and managed by a village administrator with the assistance of village elders. It is proposed that County Assembly members constitute themselves into committees to supervise the county executive at the sub-county and the ward levels under legislation to be passed by County Assemblies. Whereas Counties may have the liberty to structure the village level as appropriate, both Sub-Counties and Wards will be applicable across the Republic of Kenya once the delimitation has been done and accepted nationally. These units shall be legislated for ensuring efficient service delivery and effective participation of citizens as embedded in the Constitution. In establishing a village unit, the County Assembly shall be guided by population size, community of interest; and geographical and communication factors. For purposes of delineating and establishing village units, the assemblies shall formulate local guidelines for the delineation and establishment of the village units taking into account national guidelines as may be prescribed by Parliament. The Provincial Administration has been a key instrument for public administration. The country has been structured administratively into provinces, districts, divisions, locations, sub-locations and villages, for the purpose of public administration from the national to the local level. The executive arm of government has by and large, fell into this frame in respect of service delivery mandates. This structure however, created multiple channels through which services were being delivered and also through which resources were appropriated. Under the CoK 2010, the country is organised into the national government and 47 counties, each with its own administrative structures. In respect of the Provincial Administration, the CoK 2010, provides in the Sixth Schedule, Part 4, Section 17 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. Given the previous multiple and uncoordinated structures of governance, the key issue to be addressed is the rationalisation of these structures to align with decentralised units below the county.
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Notwithstanding that the CoK 2010 gives the national government the mandate to restructure the provincial administration; it is recommended that the process of restructuring should be cooperative and consultative between the national and county. To avoid unnecessary conflict and costs, it is further recommended, that the restructuring should avoid creating parallel systems, duplication of services, and seek to reduce the costs of administration. Where feasible, the national government should seek to leverage county systems of public administration which have already been articulated in this Section 3.3.2.
3.3.4 The County Assembly

As anticipated by the CoK 2010 the County Assembly shall provide checks and balances in the governance of the County including oversight over the County Executive and other organs operating within the county. The role of the county assembly is to enact county bills, to consider and approve matters referred to them by the county executive including vetting of executive committee members and senior county public officials; strategic plans, annual budgets, audit reports, local revenues, borrowing, grants, review investment and expenditure reports and connected matters. In performing these functions, county assemblies may constitute committees whose reports are tabled for consideration and adoption by the assembly. Table 3-2 summarises the criteria applied to determine the size of the county assemblies. The actual anticipated sizes are provided in Appendix 11.2 based on these criteria.
In order to ensure diversity of representation, it is recommended that no less than four and no more than seven members should be nominated to the County Assembly to represent marginalized groups; persons with disabilities, youth and minority groups. In order to operationalize Article 177 of the Constitution and ensure the election of County Assembly Members of high moral integrity and competence, the leadership and integrity requirements, vetting process, educational qualifications and removal of the County Assembly Members shall be incorporated in National Elections law. Good governance, integrity, transparency and accountability are some of the national values and principles of governance embedded in chapter six of the Kenya Constitution 2010 that must be upheld at county level. To ensure more effective interaction and representation between the county assembly members and the electorate, the obligations of the assembly members shall be set out in Devolution law. Public participation and involvement in legislative and other business of the assembly is paramount and direct participation of County residents in governance is not only limited to election of county representatives but shall also include monitoring and evaluating performance of county governments. The powers of Residents to recall a member before the expiry of the term for non-performance should be provided for in national legislation. Each assembly will have a speaker as an ex officio member to preside over its business and establish committees along thematic lines for the better discharge of its functions and effective governance of the County. In order for County Assemblies to effectively carry out their legislative functions, simple and cost effective standing orders shall be developed.
Table 3.1: Summary of Number of Wards Determination Criteria

No. 1 Criteria Number of Constituencies per County Gender Special Seats Marginalized Special Seats Assumption Equitably determined Factor 5
3.3.5 Classification and Governance of Urban Areas and Cities

Efficient governance of urban areas and cities requires that they be classified. Furthermore, an understanding of functions assigned to them by the County Governments should be clear. In classifying these areas, a number of factors including population should be considered. Three types of urban areas, namely cities, municipalities and towns are recommended. Cities will have populations in excess of 250,000 persons, municipalities populations of 75,000 to 249,999, while towns are defined as areas of population concentration ranging from 10,000 to 74,999. Other variables for classifying urban areas and
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All those elected are women or men There will be a need to fill the seats for the marginalized as they will not have been catered for under the elective wards or the gender special seats
One third of the elected ward representatives Four, nominated and appointed in a manner respecting the one-third rule
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cities will include: proper management of resources; availability of integrated plans, infrastructure, services, land, waste disposal and sewerage, programme for environmental management and conservation; features of historical importance; regional, national or international significance; institutionalised active participation by residents in management of affairs and positive contribution to economic development of the County.
Table 3.2: Classification of Urban Areas in Kenya by Population Size Only

Classification of Urban Area Population Threshold Core Population Cities Municipalities Towns Markets Total 5 11 76 123 215 Core + Peri-Urban Population 5 28 88 94 215 Total Urban Population 6 36 93 80 215
determine. Boards are a complementary unique hybrid model of representation which includes competitively recruited individuals and members elected by various urban interest groups. Boards shall oversee the delivery of services by City and Municipal managers working with technical teams, and ensuring efficient delivery of services to urban residents. This model of governance enhances citizen participation since the Constitution provides for universal suffrage in electing County representatives. It should be acknowledged that the Constitution creates only two levels of government namely national and county governments. It assigns functions to only the two levels of government, allocates finances to the two levels and demarcates geographical territory for each county. As a result, urban areas and cities can only be conceptualized as being part and parcel of the county government performing functions delegated to them by the counties and using resources allocated to them by the counties. Legislation relating to urban areas and cities therefore has to take this into consideration. Governance through Boards is expected to enhance citizen participation and complement the CoK 2010 which provides for citizens to elect their representatives to County Assemblies through universal suffrage. To enhance this Constitutional provision, legislation will provide for residents to elect individuals through their respective interest groups to represent them in the Boards. Furthermore, legislation shall provide for competitive recruitment which allows qualified urban residents residing within jurisdictions of various Boards to apply for consideration and inclusion in the management of the area. This hybrid Board model is expected to improve governance by allowing stakeholders to participate in the governance of urban areas and cities, with high potential for effective and efficient service delivery. The management of towns will be vested in a professional manager competitively recruited and appointed by the County Executive Committee. These managers shall be directly deployed by the county executive and shall report to county government through the designated officer.
Source: Adapted from the Population Census Results, 2009
The 2009 Kenya population census and classification data provided in this paper indicates that there will be between 5-6 cities, 11 to 36 Municipalities and 76 to 93 towns and 80 to 123 market centres as shown in Table 3.2. Based on this data, national legislation will provide for re-classification of cities, municipalities and towns, including the requirement for graduation of these areas from one status to the other. There shall be classification for special purpose towns for the conferment of municipal status even where these towns do not meet some of the criteria for municipal status. In this category will fall the county headquarters, and any other category that may be determined by legislation. Further, reclassification shall also take into account other salient factors such as function of the urban area and provision of public services.
3.3.7 Governance of the Capital Cities and City Counties

The capital city and cities which are Counties shall be divided into sub-county units with each of the constituency in a city constituting a sub-county and at least two of the sub-counties shall be clustered to form one administrative unit managed by a board as in the case of municipalities and other cities.
3.3.6 Governance of Urban Areas and Cities

The governance and management of urban areas and cities shall be vested in Boards, Managers and such other staff and officers as the respective Boards may
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3.3.8 Inter-City and Municipal Forums

Cities and urban areas will require a mechanism for cooperation and consultation to promote good relations and development. This mechanism will be provided through legislation in the form of inter-city and municipality forums. These forums will provide platforms for co-ordination and alignment of priorities, objectives, and strategies of cities and municipalities. They will also provide platforms for consultation and support to cities and municipalities in the implementation of national policies and legislation, including assessment of their performance. The forums will be avenues for considering reports from other inter-governmental forums on matters affecting city and municipality interests and the resolution of disputes that may arise between cities and municipalities. Effective local economic development requires planning and management of a number of development activities across sectors and counties. The forums will be crucial particularly in the context of planning where two or more urban entities have a common boundary or share trans-boundary planning issues and problems. Examples include the idea of metropolitan planning in respect to optimising mobility and accessibility through effective transportation as highlighted in the Nairobi Metro 2030 publication. This idea can be replicated in many other regions across the country. Section 189 (2) of the Constitution 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 capacity and providing services efficiently and cost effectively. Thus national legislation shall provide how services which cut across Counties shall be provided and managed. This shall assist counties in making decisions.
3.3.9 Integrated Planning and Delivery of Services

For efficient management and development of Counties and decentralised units, Counties shall develop integrated plans and constitute service delivery boards, enter into joint ventures and partnerships with other entities operating either within or outside respective counties. In engaging in these processes, citizens shall play a key role in decision making on matters pertaining to partnership and joint ventures that urban areas and cities may undertake in pursuit of their development objectives. They shall also play an active role in formulating integrated strategic urban development plans. The emphasis placed in integrated planning is aimed at achieving order, optimal and sustainable spatial distribution by stirring up regional competitiveness for full exploitation of resources. Effective local economic development requires planning and management of development activities across sectors and counties. It also requires cooperation and consultation mechanism which shall be provided by legislation. Overall, the objective of the plan is to assist to structure the operations that entail urban development and management. Each county and urban area and city shall prepare integrated development plans to guide and inform all planning and development issues. All decisions with regard to planning, management and development must be aligned with the national plans and strategies of the nation. An integrated development plan shall be binding and shall guide and inform all planning and development decisions in the Counties, including urban areas. Legislation shall provide for the procedures for preparation of plans, including urban development plans and their main contents and annual review. An elaboration of how Integrated Development Planning will be realised is provided in the next chapter. These shall complement the Physical Planning Act.
3.3.10 Citizen Participation

County Governments are expected to promote and entrench public participation in all aspects of governance and ensure inclusion, protection and promotion of the interests and rights of minorities and marginalised communities at national and county level as envisaged in Article 174 of the Constitution.
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It is recommended that, citizen participation be incorporated in all aspects of county operations. The devolved government legislation should provide for mechanisms for public participation in county governance including urban areas and cities. This shall include public participation in planning, budgeting and accountable management of financial resources in the county government.
3.3.11 Protection and Inclusion of Marginalised Communities and Groups

Policy Interventions It is recommended that in identifying the minority groups as defined in the Constitution, the following factors be taken into account; poverty index, numerical inferiority, climatic conditions, infrastructure development, economic status, historical injustices, special groupings e.g. persons living with disabilities, language, religion and age. It is further recommended that in the Kenyan case, marginalised and minority groups should be defined both nationally and within the geographic boundaries of each respective county to facilitate their adequate protection and participation in the governance of the county. Marginalized groups and communities should be involved in county governance and public service through targeted nominations in line with the affirmative action requirements of Article 56. In particular, the delimitation of Wards should consider creation of wards that take cognizance of minority and marginalised groups to ensure their representation in the county assembly and protection of their interests and rights instead of limiting their inclusion to nominations. This should be backed up by effective participation of these groups in developing county development plans, including the budgeting process, implementation of plans as well as monitoring and evaluation. The county government should establish a department to promote and protect the interests of marginalised groups and communities and to advise the county government on the appropriate measures to be undertaken in line with national policies and legislations. The county government as a facilitator of minority and marginalised groups rights shall also ensure that: indigenous peoples are enabled to maintain their distinct identities, languages, and the integrity of their relationship with their traditional lands. Developmental activities by the county governments must not violate these rights. Instead, they shall facilitate the attainment of such rights, access to employment opportunities in the county, including investing in culture and cultural activities with special consideration for minorities. 38
Counties shall protect intellectual property of minority and marginalized communities, including sciences, technologies, medicines, and knowledge of flora and fauna as well as arts and performances. The groups shall also be protected from harmful and repugnant cultural beliefs and practices. They shall work towards changing attitudes and perception of members of the public regarding marginalized groups through activities such as the naming of streets and towns using minority languages or names. Legislative Interventions Devolved government legislation and the urban areas and cities legislation will provide for integrated county development plans and budgeting processes with specific procedures for involving marginalised groups and communities. Integrated monitoring and evaluation mechanisms shall target marginalised and minority groups in order to progressively measure improvements in their integration into the mainstream of the county society body fabric. Devolved government legislation shall create units of decentralization whose size and boundaries recognize and integrate the aspirations and interests of minority and marginalized communities; provide for the adequate representation of the marginalized groups in the county public service, with national legislation in respect of county public finances providing for the participation of the marginalised in budgeting, planning and monitoring of financial resources. National legislation covering minorities and marginalized communities shall be enacted to: define minorities and marginalized communities; consolidate the benefits accorded to these groups; provide legal and institutional mechanisms for realizing the benefits outlined in Articles 56, and 204 of the Constitution of Kenya. Other legislations relating to marginalized groups shall be provided for in the respective reviewed laws.
3.4
Expected Outcomes
Through the enactment and implementation of the Devolved Government law and other laws operationalizing the Constitution at county and national level, it is envisaged that Kenyans will be accorded an opportunity to positively engage with public bodies to ensure effective delivery of services. Active citizen participation in all spheres of governance is expected to enhance economic development from the lower units of governance, equitable sharing of resources and better protection of previously disadvantaged groups.
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The implementation of constitutional provisions and establishment of the County Assembly is expected to result in regular, transparent and accountable engagement between the elected members and the electorate at county level. This is expected to translate into more effective and inclusive governance with the potential of ensuring overall development of the county. The election of a Governor, Deputy Governor and Executive Committee is expected to roll out a new governance structure that is closer to Kenyans at county level with the potential of ensuring people driven development through transparent planning, policy formulation and implementation of county integrated development plans. The proposed units of governance through Administrators, Boards and managers are expected to enhance citizen participation and complement the county assemblies constituted through universal suffrage. The administrators are expected to be non-partisan qualified personnel with relevant experience necessary for undertaking the assigned service delivery tasks. The proposed hybrid system of governance in urban areas and cities is expected to enhance governance by allowing stakeholders to participate in the governance of urban areas and cities, with high potential for effective and efficient service delivery. Under the current situation, most citizens are unable to hold their leaders to account and are hardly engaged in local development. The proposed units of governance are expected to empower the citizens to engage in local development, to facilitate growth and ensure effective service delivery.
integrated development plan, developed through a participatory process which ensures effective development and ownership across the County. The CoK 2010 seeks to ensure effective citizen participation in all facets of governance as a central principle of public policy-making, thus national and county governments shall seek to build citizen and stakeholder involvement in the design of policies, plans and budgets at both county and national level. The Constitution also introduces a paradigm shift from a system of exclusion and marginalization to a system that emphasizes inclusion and protection of all Kenyans thus upholding national unity and cohesion at both levels of government. If these policy recommendations are effectively enacted and implemented, the counties will become growth centres with the potential of moving Kenya to an emerging economic giant.
3.5
Conclusion
The establishment of County Assemblies and County Executives envisaged under the Constitution provides an opportunity for the exercise of decentralized power with formal structures aimed at promoting democratic and accountable exercise of power. It departs from the centralised system of government that Kenya has had since independence. It also recognises the right of communities to regularly participate in the management of their own affairs in order to improve development. Decentralisation requires a delicate balance between the County Governments and related decentralised units. Resources have to be allocated to the units, with special consideration given to urban areas and cities which are the centres of growth in Counties. This process should be informed and guided by a well-funded
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The principle of cooperative government regulates the relationship between and requires integrity of each level of government. It recognizes that the levels of government must function as a cohesive whole in order to achieve various outcomes. Public resources must be harnessed behind common goals and within a framework of mutual support. A cohesive multi-sectoral perspective is adopted with a view to avoiding wasteful competition, ineffective use of human resources and costly duplication. In addition, roles and responsibilities must be rationally and clearly assigned in order to minimize confusion and maximize effectiveness. The effective operation of cooperative government requires a system of intergovernmental relations, including mechanisms for conflict management and resolution. Further, mechanisms for drawing public participation must be identified in order to engender a cohesive society. This chapter addresses these issues.
Intergovernmental Relations
4.1
he Constitution establishes a cooperative system of government. Articles 6 and 189 provide for National and County Governments as distinct and yet interdependent levels. Each level bears constitutional responsibility for its own functions and responsibilities but shall interact with the other level to ensure effective and efficient implementation of policies and programs. Further, the concurrency of functions envisaged under Article 186 (2) of the Constitution requires co-ordinated government functions and consultation for optimum resource use and service delivery.
Introduction
4.2
Issues on Intergovernmental relations
Intergovernmental relations are the set of multiple formal and informal processes, channels, structures and institutional arrangements for bilateral and multilateral interaction within and between levels of government. They seek to achieve various objectives including promotion and facilitation of cooperative decision-making; coordination and alignment of priorities, policies, planning, budgets, and activities across interrelated functions and sectors; ensuring the smooth flow of information within and between governments on a constant basis in order to enhance the implementation of policy and programs; and providing constant information to citizens and responses to their needs. A legislative and institutional framework is required to provide for mechanisms of consultation and co-operation between national and county governments and among the county governments themselves.
Box 4.1: Key Policy Questions in Intergovernmental Relations Cooperative and consultative decision making between the national and county governments Cooperative and consultative decision making between county governments Management of politics to focus on development issues Management of process of intervention in and suspension of counties where the need arises Coordination and alignment of cross-county initiatives Promoting efficient and effective public service delivery Engendering a united nation
4.2.1 Issues on dispute management and resolution

In a cooperative system of government, it is expected that there will be times when disputes arise between governments. Articles 190 and 192 of the CoK 2010 envisage situations of intervention by national government in the affairs of county governments and the suspension of a given county government in certain circumstances respectively. Article 191 recognizes the possibility of conflict between national and county legislation. In addition, the fact that some of the
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functions conferred by Articles 186 and Schedule 4 of the CoK 2010 are concurrent, suggests that there could be situations where conflict and misunderstanding between the two levels of government may arise that call for resolution. Article 189 of the CoK provides that in any dispute between governments, the governments shall make every reasonable effort to settle the dispute by alternative dispute resolution mechanisms including negotiation, mediation and arbitration. This is necessary to avoid costly and time-consuming litigation. The same Article requires that national legislation provides for procedures for settling intergovernmental disputes. A dispute resolution tribunal would complement other processes and institutions. Article 96 of the CoK assigns to the Senate powers and functions to protect counties and their interests. The Senate, therefore, is key in both intergovernmental relations and dispute management and resolution. A legislative and institutional framework for the management and resolution of disputes is, therefore, critical to the effective implementation of the constitution.
of the performance of counties and dispute resolution among County Governments; The role of the Senate in intergovernmental conflict management and resolution; An Inter-governmental Disputes Resolution Tribunal; The granting of incentives for Counties to undertake joint projects Recognition of appropriate existing traditional/local mechanisms and institutions for management and resolution of conflicts subject to the Constitution; and Public participation.
4.4
Expected Outcomes
4.3
Recommendations
It is recommended that a legislative and institutional framework should provide for intergovernmental relations and where practicable, concrete decision-making mandates be assigned to the designated intergovernmental institutions. The proposed legislation should provide for the following: A National and County Coordinating Council comprising the President (who shall be the chairperson), Deputy President and the 47 County Governors (one of whom shall serve as vice-chair) that meets at least bi-annually and is supported by sectoral working groups/committees for the better carrying out of its functions and shall inter alia, provide a forum for consultation, coordination of functions and resolution of disputes between Governments; A Council of County Governors comprising the 47 County Governors (with a chairperson on an annual rotational basis) that meets at least quarterly and is supported by sectoral working groups/committees for the better carrying out of its functions and shall inter alia, provide a forum for consultation, coordination of national policies and legislation, assessment
It is envisaged that the proposed legislative framework, coupled with a commitment by both levels of government to nurture the principles and tenets of cooperative government, shall engender co-ordinated government functions, optimum utilization of the scant resources available, improved and efficient service delivery including the requisite monitoring and evaluation of government performance. More importantly, the harmonious conduct of relations by the governments shall promote national cohesion and engender an environment in which social equality and justice for every Kenyan are achieved. It is also envisioned that well managed intergovernmental relations shall reduce the incidence of conflicts and where these occur, they shall be resolved within the constitutional framework of alternative dispute resolution with judicial action being the recourse of last resort.
4.5
Conclusion
Intergovernmental relations should benefit from both formal and informal processes. For the formal processes, legislation is an imperative for cooperative government. Drawing from the lessons of other countries, it should be noted that even the intergovernmental relations that begin informally may eventually concretize and require anchorage in law. National government must be ready to step in with the requisite legislation when the need arises. Both levels of government bear the constitutional responsibility to ensure a cohesive and integrated nation.
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5.2
The Public Service Delivery Issues
5.2.1 The Functional and Competency Assignment Framework

The functions of the county governments are provided for in Article 185, Article 186 (1) and listed in the Fourth Schedule. Article 21 (Implementation of Bill of Rights), Article 62 (2) and (3) (Vesting of Land on County Governments), and Article 235 (County Public Service), amongst others, delineate further functions, and imposes obligations on both levels of government in the execution of their mandates. The CoK 2010 in Article 186 further classifies the functions of county governments as exclusive, concurrent or residual. Annex III provides distribution of functions between national government and the county governments as assigned by the CoK 2010. A review of the functions as articulated in Schedule 4 of the CoK 2010 indicates that the national government is largely assigned policy, regulatory and capacity building functions, while county governments are assigned the service delivery burden. Other functions and mandates of the county governments are provided in Article 43. On the other hand, where the functions are not explicitly distinguished as exclusive or concurrent, these are classified as residual and assigned to the national government. The process of providing clear definitions of each functional category and explicitly specifying the functional areas over which each level of government will have responsibility is generally referred to as functional and competency assignment. Clarity in this process is required for effective identification and allocation of resources such as staff and finances. Proper structuring and assignment of competencies/ responsibilities is necessary to ensure efficient and comprehensive service delivery to the citizenry. The assignment of functions and competencies between the national government and county governments will be guided by certain principles and norms. Under the subsidiarity principle, functions are assigned to a level of government that would best perform them; while the transferability principle provides for the possibility of one level of government transferring some of, or aspects of some of its functions to another level of government. In assigning functions to the two levels of government, it is generally agreed that policy formulation and the setting of national standards and norms will be the responsibility of national government; while the implementation of the policies and the standards is the responsibility of county governments. The functions related to foreign affairs, defence and macroeconomic policies are assigned to the national government whereas social 47
Delivering County Public Services for Prosperity

5.1
Introduction
chieving progress in delivery of public services for prosperity is essential to meeting various benchmarks for Kenya. These include Kenya Vision 2030 targets, Millennium Development Goals (MDGs) and other international treaties and conventions, to which Kenya is signatory. As noted in Chapter 1, effective and efficient public service delivery will allow citizens to define, identify and harness opportunities for creating wealth and improving their welfare. This can only be achieved if there is synergy between the two levels of government in responding to the development priorities of citizens so as to take advantage of regional and global opportunities. This Chapter focuses on two important aspects on the delivery of public services. The first aspect relates to the manner in which powers, responsibilities and competencies are assigned to the different actors in the process of delivering pubic services. The second deals with development planning, identifies the service delivery needs and priorities of citizens. Linking these two is a prerequisite for ensuring mobilisation and effective use of resources for meeting development needs in the counties.
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functions, including health care, education, housing and agriculture are assigned to the county governments. The principle of proportionality3 largely requires that a level of government is allowed only to take action to the extent that is necessary to achieve the stated objectives, regardless of those objectives. Article 190 (3) provides that Parliament shall enact legislation that will allow national government to intervene in order to ensure county governments perform their functions. Article 190 (4) details the steps for achieving this, including possible takeover by national government for performance of those functions. However, in Article 190 (5), the provisions suggest some level of Box 5.1: Key Policy Issues in Achieving measured intervention through Inclusive and Comprehensive a requirement that a notice be Functional and Competency issued to the defaulting county Assignment government which allows the Achieve clarity in the functional national government to take assignment through unbundling them only those measures that are and assigning competencies between necessary. It further provides the national and county governments; that a process be defined by Determine the service level gaps in which the Senate would bring respect of each competency; such an intervention to an end. Determine the expected performance level; Experience has shown that Assign funds to levels of government overlaps of functional jurisdiction according to their service delivery are unavoidable even for mandates; exclusive functions because it Identify the capacity constraints; is virtually impossible to define Develop a short, medium to long term watertight compartments of capacity building program exclusive jurisdiction. Similarly, Develop mechanisms for appropriate concurrent functions due to the intervention by the national nature of the assignment involve government in instances of failure joint tasks and overlaps in terms to deliver on functions by county of functional jurisdiction. Rather government than assigning, for example, Review the organization of national primary education to the lowest government (ministries/departments) level of government, in practice, to reflect the optimal assignment of only certain components or functions as anticipated under the CoK service delivery functions 2010 are assigned. Hence another intervention of functional 48
assignment is to unbundle services within sectors, particularly where the constitution does not define specifically what services are contained in an assigned sector. The functions assigned to the national and county governments in the CoK 2010 are generally broad and non-specific. This is a trend observed in other countries. Article 186 and Schedule 4 provide for assignment of functions and powers between the national government and county governments. This absence of clarity has the potential for tying up governments in disputes that would detract from actual delivery of services or could lead to wasteful expenditures. 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 which government level is responsible for what. Box 5.1 summarises the key interventions required to achieve a clearer specification of public service delivery activities over which each level of government will be responsible.
5.2.2 The Development Planning Arrangements

Effective and comprehensive integrated development planning is necessary for achieving a clear determination of public service requirements. National Government and the county governments have clear service level gaps that need to be addressed. It is therefore necessary that targeted interventions are put in place to increase the level of public investment. This will require the setting of targets and a mechanism for planning and financing of development. In Kenya, development planning has long been highly problematic. First, there has been uncoordinated planning, for example, plans are prepared and funded at the sector, district, local government and constituency level. Under these circumstances, accountability and effective monitoring of development plans would be a problem in the devolved government dispensation. It also means that funds are so thinly spread out that on application their impact is at best minimal. Another major challenge of development planning has been the poor linkage between local planning and budgeting in a properly conceived medium term expenditure framework. Many infrastructure projects identified in various local development plans have never been undertaken because of a lack of funding, and many that have been undertaken are not properly resourced for operation and maintenance. It is thus not surprising that many district development plans are 49
formulated, but are hardly implemented. In terms of international best practice, local entities should have a medium term development plan outlining a vision for local development, a shorter term (three-year) rolling investment program that identifies priorities for the next few years in the context of some sense of the likely budget envelope, and an annual development budget for capital expenditures in the current budget year. In addition, the process of preparing an annual budget should take account of the recurrent expenditure needs associated with new facilities that have been built under the development budget. Further, to avoid uncoordinated planning and development, it will be necessary to harmonise sectoral, national, local and term planning to effectively secure our development outcomes. Achieving such integrated development planning will help the counties to cost effectively and progressively achieve their developmental mandate. The plans will assist county governments to align national and county development and spending priorities. It will also align their financial and institutional resources behind agreed policy objectives and programmes. Critically, it will serve as a basis for engagement between the county government and the citizens, other stakeholders and interest groups. Participatory and accountable government only has meaning if it is related to concrete issues, plans and resource allocations. In pursuing integrated development planning in Kenya and within the counties, the following challenges must be addressed. The challenges of wealth creation within the limited resources available; the emerging demographic patterns including achieving productive urban-rural linkages, as well as dealing with emerging challenges of urban sprawl, peri-urban areas, service provision across county boundaries, and creation of supportive policy and institutional frameworks. Further, it is also critical to provide for interventions of dealing with the implications of Kenyas settlement dynamics on the natural resource base of the country, critical for food security and sustainable development. There is need to provide for flexible mechanisms to respond to differential population growth rates and the resultant changes in population distribution, given their implications for the functional boundaries for service delivery and therefore, the demand for variations in service delivery, electoral boundaries and consequently the systems for boundaries demarcation. The growth of 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. It is also important that citizens of the various counties are facilitated to realize their highest potential.
To avoid many of the challenges of uncoordinated planning and development, sectoral, national, localized as well as term planning shall be harmonized effectively to secure Kenyas development outcomes. The imperative of building an attractive and sustainable settlement which meets the aspirations and improves the quality of life of local communities is significant. Each county government will develop a clear economic and social vision for its areas based on an understanding of the various dynamics operating within its jurisdiction. It will deliver the appropriate services to build liveable places, supportive of strategies for realizing and financing that vision in partnership with other stakeholders. To do this, each county government shall operationalize an integrated development planning framework to effectively and proactively harness the resources at its disposal and align the same to the national planning framework. 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, county agriculture, county health services, as well as trade development and regulation. Planning for these functions will be the responsibility of county governments. A major component of development planning, namely regional planning, is not mentioned and could therefore be treated as a residual function hence a national government function.
5.3
Recommendations
5.3.1 Inclusive and Comprehensive Functional and Competency Assignment

In the Kenyan case, it will be important to create a legal framework for clarifying the assignment of exclusive, concurrent and residual functions in the cooperative system of government adopted. This assignment of functions and competencies is not a simple legal action of allocating public services from one level or unit of government to another. It should be undertaken within a legal, 51
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fiscal and institutional framework, in a process referred to as unbundling. It is therefore recommended that, to ensure an orderly assignment of functions and competencies, a Functional and Competency Assignment Policy Paper is developed and approved by the Cabinet to guide the phases of the transfer of functions to the county governments. This paper will lead to the development, through a multi-stakeholder effort, of Sector Functional and Competency Assignment Papers on the basis of Annex III using sector clusters as recommended in Annex IV. Figure 5.1 illustrates this process. As part of the process, it is recommended that a deliberate and clear process of unbundling as articulated in Figure 5.2 be implemented and a report be prepared by the multi-sector teams. This process should be led by the Executive, the Commission on Implementation of the Constitution (CIC) and the Commission on Revenue Allocation (CRA) as per Schedule 6, Section 5 (6) a and Article 216 (2) of the CoK 2010. The reports so prepared should be approved by Cabinet and made available to the public. The development of a Constitutionally Compliant Sector Public Policy document aligning the sectors to the devolved government framework is recommended as an imperative for effective assignment of competencies and functions in line with the CoK 2010.
National legislation shall be developed to address the procedure for phased transfer of functios; criteria for transfer of functions. In order to anchor the process and to accord with good international practice, it is proposed that a national legislation covering the operation of devolved governments be formulated. The legislation should incorporate matters pertaining to transfer of functions, including the principles guiding delegation of powers, criteria for transferring powers, costing of functions, structures and capacity to receive functions, transfer of assets and liabilities, and structures and institutions for effective service delivery at the county level. It is recommended that a targeted public communication, advocacy and engagement strategy supportive of the goals of the functional and competency reassignment exercise should be formulated and implemented. The objectives of this strategy shall be to ensure that all stakeholders are aware of the importance of the functional and competency assignment exercise, its outputs and outcomes.
Figure 5.2: Functions and Competencies Unbundling Framework
Figure 5-1: Recommended Functional and Competency Assignment Process
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5.3.2 Procedures for Intervention by National Government in County Governments

It is recommended that the procedure for intervention in cases where a county government fails to deliver on its assigned functions should be similar to that relating to suspension of a county government, with necessary modifications relating to the triggers for such intervention. In both cases the National County Co-ordination Council should be consulted and its recommendations taken into account.
planning. Similarly, it is important to recognize that certain services are most cost effectively provided on a large scale. There is therefore need for the provision of cross-county and cross-national boundary spatial planning. In the transition period, the inaugural Governors shall be required to have developed ICDP within the first 12 months for approval by the county assemblies within the same period. Further, the ICDP should take account of the national, county and cross-county development imperatives. Moreover, it is recommended that the first ICDP should up date and integrate all the existing development plans and compile them into a five year Delivery Program for each County Governments term of office within the first nine months of each incoming County Government and translated effectively. Each county Governor will use the annual State of the County Report to monitor and communicate on the effective implementation of county plans.
5.3.3 Integrated County Development Planning

Effective integrated development planning is premised on the presence and operationalization of an effective legal framework, as well as the capacity to define and realize the instruments for development planning. It is recommended that a comprehensive and integrated national planning legislation be developed to provide the broad framework for integrating economic, sectoral and land use planning in Kenya as articulated in Annex V. It is recommended that for each county, an Integrated County Development Plan (ICDP) be developed upon which all appropriations; including expenditures by county governments shall be based. This ICDP shall be provided for in national legislation covering planning, operation of county governments and in public financial management legislation. The ICDP shall comprise an economic development programme, a spatial plan, and institutional development plan, a human resources development framework and a county performance management framework. Further, it is recommended that national legislation on the operation of devolved governments will provide a general framework for integrating economic and spatial planning. The objectives of the legislation shall be to facilitate and guide the development of a strategic and integrated development planning framework for counties in Kenya. In respect of counties, such integrated development planning will provide for clear spatial objectives, including land use and settlement patterns. Counties will also be required to develop clear service delivery objectives in terms of standards and levels of services as well as time bound plans for their achievement. Furthermore, linkages at national, regional, county, sub-county and ward level planning and development control activities shall also be required. 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
5.4
Expected Outcomes
The implementation of an inclusive and comprehensive process of transferring of powers, functions and competencies will result in the appropriate assignment of functions. It will also facilitate effective assignment of resources human and financial thus ensuring that recipients of delegated functions are financially empowered through alignment of finances with functions. Further, the laws will create a predictable and acceptable mechanism for the transfer of functions and the appropriate resources between the two levels of government or to other entities by agreement. This will contribute to the prevention of the anticipated conflicts between the national and county governments. It is expected that the enactment and implementation of the legislation on devolved government will lay a firm foundation for the integration of economic, social, environmental and land-use planning in the counties. It will lead to comprehensive and coordinated planning with clear linkages between policy, planning and budgeting. This will then allow for the leveraging, in as optimal a manner as possible, of the resources available to the County Governments to address the needs of citizens. Ultimately, this should contribute to a more just and equal society for the Kenyan people and their progeny as envisioned by the CoK 2010.
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5.5 Conclusions
The effective assignment of powers, functions and competencies will be instrumental in ensuring that public services are delivered in a manner that responds to the needs of citizens. Supported by an integrated planning framework, public service delivery will facilitate citizens to enhance their wealth creation efforts and enable the private sector to play its role properly. In this respect, it will be important to attend to the anticipated capacity building and communication requirements. This means that national and county governments must act to not only identify the capacity gaps within their realms of responsibility and engagement, but must also educate the citizens on the mechanics of the new system. It will be critical for all stakeholders to realise that results will not be immediate. Therefore, intervention efforts must be sustained over the medium to long term.
Building an Effective County Public Service

6.1
his chapter presents a picture of county governments bestowed with significant developmental responsibilities. These responsibilities are matched by equally high expectations from the citizenry. It has been observed that the CoK 2010 assigns to county governments functions that are essentially of a public service delivery nature. A capable, efficient and effective public service is a key factor in ensuring that the constitutional and developmental mandates of county governments are executed in a manner responsive to citizens requirements. The public service, both at the national and county government levels, is expected to contribute to the achievement of economic, social and political aspirations as articulated by various government policies. The ability of the county public service to effectively play this role will significantly depend on the form and nature of the transformation that it will have to undergo. This chapter discusses the policy challenges in ensuring an effective county public service and proposes measures to address them.
Introduction
6.2
The Issue
The current institutional, governance and human resource structures which were developed and evolved under a different constitutional and legal order need be reformed in order for them to be in tandem with the provisions of the CoK 2010. Towards this end, the focus should be on transforming the existing public service 56
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performance management systems and the overall human resource management policy framework. New legislation and policies should be formulated to address current and future challenges and practices that could constrain the county public service in effectively delivering on its mandate. In this respect, the following general principles apply: recruitment, appointment and placement based on the needs of the county public service; objective, fair and competitive recruitment criteria; human resource management and development policies that are relevant to the overall development of counties; performance management and evaluation systems that are results oriented; fair and consistent disciplinary processes; and competitive remuneration, pensions and other terminal benefits. These principles should form the primary basis for the management and regulation of the county public service. The existing human resource management approach has often been characterised by processes and procedures in a centralised environment with limited adaptation. This approach requires to be reformed to accommodate more dynamic issues in a devolved environment. Reforms in human resource management at both levels of government are further Box 6.1: Policy Questions in Building an expected to contribute to the Effective County Public Service elimination of perceptions of 1. What are the staffing requirements of widespread corruption, abuse of county governments relevant to their office, cronyism and inequities constitutional mandates? in access to services. 2. How do we ensure that the county public service is able to attract and The responsibility for staffing retain the best skills? of county public services, 3. How do we engender constitutional under Article 235 of the CoK requirements in respect of values and 2010, has been assigned to principles of good governance? county governments. Staffing 4. How do we ensure that the county in this context goes beyond public service does not become the mere deployment of staff an arena for ethnic and sectional in the counties. It includes jingoism? establishment and abolition 5. How do we secure a smooth transition of offices, appointment and to county governments? confirmation in appointment, 6. How do we secure cooperation disciplinary control and removal between county and national of persons holding or acting governments? in offices in the county public service. The CoK 2010 further 58
requires that staffing will be done within a framework of uniform norms and standards prescribed in legislation. The establishment and abolition of offices and appointments in the service of these governments will be guided by the need to attain an optimal staff complement required to perform the functions assigned to county governments under the Fourth Schedule of the CoK 2010. In order to determine the optimum number of staff, respective county governments will need to conduct workload analysis. In this connection, it will be necessary for county governments to develop organisational structures and staff establishments that are consistent with the assignment of functions. Box 6.1 summarises the key policy questions relevant to achieving a capable county public service.
6.3
Recommendations
6.3.1 Staffing of County Governments

It is recommended that policy frameworks be formulated to guide national and county governments in organisational structure and design, workload analysis, job analysis and job evaluation. These policies will be useful in determining appropriate organisational structures, optimum staffing and grading of posts.
6.3.2 Staffing Norms and Standards

Legislation will provide a framework of uniform norms and standards for regulation of appointments, confirmation of appointments, disciplinary control and removal of persons holding or acting in county public offices. The norms and standards shall comply with, among others, Article 10 on National Values and Principles of Governance, Article 41 on Labour Relations, Article 56 on Minorities and Marginalized groups, Article 230 on the Salaries and Remuneration Commission, Article 232 on the Values and Principles of Public Service and Article 236 on Protection of Public Officers. Besides matching staffing with functions, other norms and standards in respect of staffing will include prescribed qualifications and fair administrative action. Others will be benchmarks in the form of ratios or percentages that will be useful criteria in determining the number of offices to be established or abolished or the diversity of Kenyas communities in appointments. In order to ensure harmony and standardization at both levels of government, these norms and standards will
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as much as possible be aligned to the applicable laws and regulations in respect of staffing at the national government level, and to the constitutional provisions on public service.
6.3.3 Management and Regulation of the County Public Service

Effective staffing and performance in the county public services could easily be compromised by excessive discretion in county governments, lack of transparent and accountable control systems, excessive bureaucracy and weak capacity. This, if unchecked, will lead to erosion of professionalism, corrupt practices or perceptions of corruption, abuse of office, ethnicity and cronyism in appointments, promotions and disciplinary control. In order to avoid these potential challenges, an independent body to be known as the County Public Service Board should be established. The Board will primarily perform, on behalf of county governments, the responsibilities assigned under Article 235 of the Constitution.
such issues as skills, talent and performance management in the county public service throughout the republic. It will also play an advisory and facilitative role on transfers of staff among counties. Further, it will provide a forum for engagement between counties and the Salaries and Remuneration Commission as well as the Public Service Commission.
6.3.5 Human Resource Management and Development

Human resource management and development in county public service will be underpinned by national and county government specific policies having regard to effective functioning of county public service to ensure efficient, quality and productive services for the people. The human resource management and development policies adopted by county governments will reflect best practice. The policies should be designed with the ultimate objective of optimal utilisation of human resources and the personal development of public officers and their careers. While unique circumstances in every county public service will determine the human resource management approach that a county government may wish to adopt, specific national legislation will apply throughout the county public service. International conventions on labour relations and practices will likewise continue to apply in the management and development of human resources. Besides the legislation on staffing of county governments as provided for under Article 235 of the CoK 2010, human resource management and development in county public service will be regulated through relevant national legislation. This includes legislation on employment and labour relations, professional ethics, salaries and remuneration, performance management and pensions. Likewise, in order to ensure coherence and harmony in human resource management and development throughout the public service, county governments will implement national policies especially those that have their basis in legislation and international conventions. These policies include those that have been formulated by the national government on the advice of the Public Service Commission as provided for in Article 234 (2) (g). Other policies that may be applied uniformly across the county public service are those that are formulated on the advice of the Salaries and Remuneration Commission and those on mandatory retirement on attainment of the prescribed age.
6.3.4 Engendering Values and Principles of Governance and Public Service

Article 234 of the Constitution mandates the Public Service Commission to promote the 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 these values and principles are complied with in the public service. However, under Article 234 (3) this mandate does not apply to an office in the service of a county government. This is despite the fact that under Article 232 of the constitution, the values and principles of public service apply to public service in all state organs in both levels of government. In view of the critical importance of ensuring that county public service adheres to and reports on these values and principles, a County Public Service Advisory Authority should be established to perform this function. This will be provided for in a national legislation. In its advisory and facilitative role, the County Public Service Advisory Authority will be expected to develop a consultative framework that will facilitate county public service-specific policy formulation and implementation. Besides the promotion, evaluation and reporting on compliance with the values and principles of governance and public service, the County Public Service Advisory Authority will play a facilitative and advisory role in exchange of information on
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6.3.6 Performance Management and Evaluation

A performance management and evaluation plan will be developed to facilitate implementation of county policies. The plan will be complementary to any national performance management plan that may be applicable to the county public service. The County government performance management and evaluation plan may include such performance management tools as performance contracts and individual public officers performance evaluation. National legislation will provide for a performance management and evaluation plan for county governments. A county government may formulate and implement a rewards and sanctions policy. The policy will provide for a framework of rewards for county public officers based on exemplary performance and productivity and sanctions for consistently poor performance. In formulating the policy, the county government shall consider the advice of the Salaries and Remuneration Commission on the matter.
in budgeting for personnel emoluments and for allocation of resources to county governments. Deployment of Staff Re-organisation and deployment of staff in the transition period will be informed by national legislation outlining the following principles: Stability of the public service; Matching staffing with functions; Harmonization of terms and conditions of service and Preservation and protection of pensions and other terminal benefits. In order to ensure stability of the public service, national legislation will provide that public officers serving in counties on the date of the establishment of county governments will be deemed to be on secondment from national government with their terms and conditions of service as at that date. The secondment of the officers to the counties will be for the purposes of respecting the constitutional responsibility of county governments in the staffing of their counties; and the preservation of terms and conditions of service of seconded public officers including their pension rights pending redeployment to either level of government. Redeployment of seconded staff to either level of government will be decided in a consultative process between the national government, the county governments and the Transitional Authority, coordinated by the Commission on Implementation of the Constitution. The national government will pay the salaries and benefits of seconded public officers. It is important to note that no public officer will be removed from office without regard to Article 235 on staffing of county governments, Article 236 on protection of public officers and Clause 31 on existing officers. Local Authorities Staff In terms of appointment and disciplinary control, there have been two categories of staff in local authorities; those whose appointment and disciplinary control falls under the purview of the Public Service Commission (salary scale 1-9) and those appointed by the local authorities under delegated powers of the Commission (salary scale 10-20). Both categories of staff fall within the definition of public officers who should initially be deployed on secondment to the County public service. The re-deployment of the local authorities staff in the county public service should take into account experience and skills relevant to the functions assigned to county governments including in the management of cities and urban areas as provided under Article 184 of the constitution.
6.3.7 Transitioning from the Current Public Service

In the period preceding the establishment of county governments, there will be need for the central government to develop a tentative organizational structure and staff establishment for each county. Besides providing an initial framework and basis for establishing and abolishing offices when county governments are finally constituted, the tentative organizational structure will be useful in informing the deployment of staff at both levels of government in the county. The ultimate responsibility of staffing of county governments will however remain with the county governments themselves. Staff Audits The determination of optimal staffing levels will be on the basis of functional distribution between levels of government and workload in both the national and county governments. An audit of staff serving in ministries and 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. The audit will further seek to determine the existing payroll costs. The information obtained will facilitate re-distribution and deployment of staff, provide information necessary
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Harmonisation of Terms and Conditions of Service The current terms and conditions of service within the public service are characterised by different pay regimes and other benefits between sectors. The continued differentiation in the terms and conditions of service after redeployment of staff to both national and county governments will be detrimental to effective performance management and harmonious labour relations in the public service as a whole. It will therefore be necessary to develop mechanisms through which the terms and conditions of service are gradually, but systematically, harmonised. This should be done in a consultative process within the various tripartite arrangements, ensuring that the terms are not varied to the disadvantage of any group of employees. 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 (2) and the advice of the Salaries and Remuneration Commission in accordance with Article 230 (4). The terms and conditions of service should progressively be harmonised, taking account of any existing Collective Bargaining Agreements (CBAs) and relevant legislation. 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 portability 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 CoK 2010 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 staff. National legislation will provide for a transition mechanism that includes protection of public officers from arbitrary loss of jobs and preservation of terms and conditions of service including salaries, benefits and pensions. Issues that will be addressed through policy will include harmonisation of terms and conditions of service, staff audits and staff deployment.
unsustainable wage bills at the expense of operations and economic-growth related expenditure; prevention of overstaffing that eventually leads to costly and disruptive downsizing programmes; developing appropriate retirement packages; the attraction and retention of appropriate skills and addressing low morale among employees. The County Public Service Advisory Authority will facilitate human resource planning in counties through, among other means, developing and maintaining a human resource database on staff skills, qualifications, experience, distribution and diversity profiles in County Public Services throughout the republic. The framework of uniform norms and standards on staffing will provide the primary basis of human resource planning in county public service. The framework on common norms and standards will be supplemented with policies developed by county governments in consultation with the County Public Service Advisory Authority on human resource planning, skills transfer, secondment and capacity building.
6.3.9 Staff Training and Capacity Building

Transformation of the public service will require extensive institutional and staff capacity building including intensive training of the political and executive leadership at both levels of government. In training and capacity building, attention will be focused on aligning the capacity of staff to the strategic issues that are of critical importance to effective performance. In this connection, training programmes that target the political and executive leadership at both levels of government will be developed and implemented in a consultative process. The aim will be to promote efficient service delivery and harmonize understanding, application and implementation of relevant laws and policies; assist staff to uphold and promote the spirit, values and objects of the constitution when making or implementing public policy decisions; and to assist staff to understand the rights, limitations, obligations and responsibilities of the client in service delivery. A training and capacity building framework will be developed through a consultative process involving Government training institutions, national and county governments, professional associations, employers and workers representatives.
6.3.8 Human Resource Planning

Human Resource Planning will assist county governments in: the formulation of recruitment and succession plans; avoidance of incurring high and 64
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6.4
Expected Outcomes
The ultimate goal in implementing these policy and legal provisions relating to county public service is to achieve effective performance of functions assigned to national and county governments. Expected specific outcomes on implementation of the various policy recommendations will include the following:
service institutions, and the procedures and systems of performance management. Challenges will manifest themselves in resistance to change from various sectors and in nurturing an effective county public service that respects the values and principles of public service while at the same time meeting the service delivery needs of residents of the county. The development and effective implementation of a training and capacity building framework as provided for in the policy will be a useful starting point in the implementation of the various constitutional, legal and policy provisions on county public service. The stability of the public service will need to be protected to ensure seamless transition to devolved government and to avoid disruption to public service delivery.
6.4.1 Staffing of County Governments

The effective application of the framework of uniform norms and standards is expected to facilitate the attraction and retention of professionally qualified and competent staff in the county public service. It is further expected that the framework will provide a basis for promotion of affirmative action in appointments of public officers in county public service and the fiscal sustainability of the county public service wage bill. The establishment of a County Public Service Board is expected to lead to effective management and regulation of the county public service by eliminating excessive discretion by county governments, subjective recruitment and appointment and cronyism. Establishment of the Board is expected to promote inclusiveness and diversity in county public service.
6.4.2 Establishment of the County Public Service Advisory Authority

The establishment of the Authority is expected to contribute to the development of an ethical county public service that observes and complies with national values and principles of governance, and the values and principles of public service.
6.4.3 Harmonisation of Terms and Conditions of Service

Intergovernmental exchange of skills and knowledge through transfers and secondment of staff will be facilitated as a result of harmonised terms and conditions of service. The harmony is also expected to significantly promote labour relations at both levels of government and the concept of a single public service in relation to career growth, salaries and benefits, pensions and gratuities.
6.5
Conclusions
The policy provisions on county public service entail exciting opportunities and critical challenges. The opportunities mainly relate to reforming the existing public 66 67
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An Effective County Public Finance Management System

7.1
ffective financial management is pivotal to the success of devolved government. The Constitution provides that county governments shall have reliable, stable and predictable sources of revenue to enable them to effectively perform their constitutional functions and to deliver services within their jurisdictions. County governments are also required to observe the principles of public finance outlined in the Constitution. These include prudent and responsible utilization of financial resources, openness, accountability, public participation and clear fiscal reporting. They must also ensure resources are applied in a manner that promotes equitable development, provides for marginalized groups and areas, and the use of resources and public borrowing, while ensuring the related burdens and benefits are shared equitably between present and future generations. The Constitution provides frameworks for securing the financial health of county governments in order to avoid the financial challenges that decentralized institutions such as local authorities and state corporations experienced in the past. The Constitution, for example, provides that revenues raised nationally shall be shared equitably among the national and the county governments and additional allocations could be made to them as conditional and unconditional grants. In addition, the Constitution stipulates that where a function or power is transferred from one level of government to another, arrangements shall be made to transfer financial and other resources necessary for the performance of that function or exercise of the power. The Commission on Revenue Allocation may, 68
Introduction
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when appropriate, also define and enhance the revenue sources of the county governments. The Commission will also be obligated to make recommendations on how counties can promote and institutionalise fiscal responsibility.
7.2
The County Public Finance Issues
be based on both the improved and unimproved site values. There should also be no exemption on payment of rates to government ministries, departments, agents or any other person as is currently the case. Neither should the use of the contributions in lieu of rates (CILOR) system for offsetting government property tax indebtedness to county governments be allowed. Another important reform would involve making the Kenya Revenue Authority (KRA) a shared institution empowered through national legislation to collect tax revenues for both the national government and county governments. Alternatively, county governments could collect such taxes through their own departments or contract out the tax collection function either in whole or in part to KRA or to a tax revenue collection institution established to serve all the 47 counties. The CoK 2010 requires Parliament to enact legislation that ensures that local communities and their economies benefit from resources and investments in their areas, while regulating the use of land. In the past, communities in many areas of the country have survived through the sustainable exploitation of forest, wildlife, marine and other natural resources in their areas. The exploitation of minerals and other natural resources within various counties will inevitably impact the environment and livelihoods of local communities. County governments where natural resources exist should be allowed to levy royalties to provide them with additional and reliable sources of revenue. This will also serve as an incentive for the sustainable utilization of the land resource. Over the last few years, several devolved funds have been established with the objective of providing financing to projects at the local level. Examples of such funds include the Local Authorities Transfer Fund (LATF), the Constituency Development Fund (CDF); the Road Maintenance Levy Fund (RMLF), the Youth Enterprise Fund (YEF), the Women Enterprise Fund (WEF) and the Poverty Eradication Loan Fund (PELF), the Free Primary Education (FPE); Constituency Bursary Fund (CBF); the Rural Electrification Programme Levy Fund (REPLF); the HIV/AIDS Fund; the Community Development Trust Fund (CDTF), the Water Services Trust Fund (WSTF), among others. The funds are administered under separate management structures. Although such funds have been major drivers for service delivery and local development, they have equally experienced challenges and attracted complaints from stakeholders including demand for their restructuring and reform. These challenges and criticism include lack of coordination, jurisdiction overlaps and duplication, high administrative costs, inadequate public participation, confusion
This Sessional Paper addresses itself to the following issues relating to the financial management of county governments, including secure, reliable, stable and predictable county revenues; county borrowing and public debt management; financing cities, urban areas and county public entities; financing county infrastructure; public procurement; financial management and controls; intergovernmental fiscal relations; public participation in county financial management; financial management capacity building; and resolution of operational and financial problems
7.2.1 Secure, Reliable, Stable and Predictable County Revenues

County governments require secure, reliable, stable and predictable sources of revenue to enable them to effectively perform the functions assigned to them under the Constitution. The main revenues assigned to them under the Constitution are intergovernmental transfers and county generated revenues. It is important therefore to ensure that the intergovernmental transfers and county generated revenues are sufficient to finance the functions assigned to the county governments. The CoK 2010 has provided that not less than 15% of the revenues raised nationally calculated on the basis of the most recently audited accounts of revenue received, as approved by the National Assembly, shall be allocated to county governments. County governments are also empowered to impose property taxes, entertainment taxes and any other tax authorized by legislation and can levy fees and charges for rendered services. They are also entitled to be given additional allocations as conditional and unconditional grants. County governments shall be required to determine the revenue potential from their own sources and institute innovative management practices to ensure maximization of revenue collection. Currently, for example, property rate taxes are based on unimproved site values, which deny the local authorities substantial amounts of revenue. The Rating Act (cap 267) and the Valuation for Rating Act (266) should therefore be amended to provide for the rating of properties to
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by citizens on how the funds could be accessed, mismanagement, conflict of interest, nepotism, corruption and poor accountability, among others. The rationalization and clarity of the future administration and management of these funds is critical as they will impact on the effective management and functioning of the county governments.
and strategies that ensure that cities, urban areas and county public entities are also allocated sufficient financial resources to deliver infrastructure and basic services through grants and the intergovernmental framework for sharing revenue raised nationally. They should also be facilitated to access grants and loans for the financing of infrastructure and development programmes.
7.2.2 County Borrowing and Public Debt Management

County Governments may borrow only with the approval of their respective county assemblies and on condition that the national government guarantees the loans. Such borrowing can be sourced both from the money and capital markets and can be borrowed from internal or external sources as well as from bilateral and multilateral agencies. Borrowing by county governments will be inevitable since they are required to finance and maintain a broad range of capital infrastructure investment which requires huge capital outlays and which cannot be adequately financed from the revenues generated from intergovernmental transfers and county generated revenues.
7.2.4 Financing County Infrastructure

In a major policy shift, the Constitution has assigned county governments a central role in the development and delivery of social and economic infrastructure. County governments shall be pivotal in the delivery of the social and economic rights specified in Article 43 of the Bill of Rights. Besides the use of intergovernmental transfers, own revenues, grants and loans, county governments can rely on other methods of mobilizing financial resources to finance their infrastructure. County governments can opt to directly contract out work relating to the development of their infrastructure. They can also collaborate with the national government, other counties, state organs, private sector and nonstate agencies in the fulfilment of their infrastructure delivery mandates. In addition, county governments can utilize public-private partnerships (PPPs) which have emerged as an economical and reliable mode of raising funds to finance large capital infrastructure investments. These collaborative contractual arrangements between public and private sector institutions for the joint delivery of capital projects have in other countries served as useful vehicles for leveraging financial resources and spreading costs and risks of infrastructure projects. Another mechanism to consider for financing infrastructure by county governments is establishment of a fund whose sole purpose is to provide financing for infrastructure in all the counties. The fund which should operate as a body corporate under the stewardship of a competent board and management can be capitalized by the national government, county governments, foundations, bilateral and multilateral agencies and the private sector.
7.2.3 Financing Cities, Urban Areas and County Public Entities

The financing of cities, urban areas and county public entities shall be undertaken in the context of the governance and management framework provided in the Constitution and legislation. Under the said framework, county governments and the boards of cities and urban areas have principal-agency relationship, respectively. County public entities which are body corporates established by respective county governments to perform some of the functions the Constitution has assigned to counties, shall be managed by boards of directors. The boards of cities, urban areas or county public entities will however be responsible and accountable to the county government for the management and accountability of financial resources allocated to them as well as those derived from their assigned revenue sources. Cities and urban areas are vital to the countrys social and economic advancement. They will undoubtedly absorb a majority of our national population, and will be centres for industrialization and technological innovation. They will also facilitate the building of diversified economies which raise productivity, create jobs and wealth and serve as engines for social-political change, economic growth and development. It is therefore important to formulate and implement policies
7.2.5 Public Procurement

The functions assigned to the county governments will be discharged mainly through the procurement of goods, works and services. County governments will therefore be required to develop appropriate supply chain management policies to guide in the procurement of goods, works and services. The policies will be
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guided by the principles of fairness, equity, transparency, competitiveness and cost effectiveness. The principles shall relate to both procurement of goods, works and services and disposal of assets. All procurement and disposal of goods and services will reflect value for money. Other aspects that need to be considered are categories of preference in the allocation of contracts, the protection or advancement of persons or groups previously disadvantaged by unfair competition or discrimination and the placing of sanctions against persons who have defaulted on their tax obligations, or have been found guilty of corrupt practices or serious violations of fair employment laws and practices. The procurement policy shall provide for the proper alignment of the procurement function with cash flow management to avoid situations of debt accumulation resulting from non-payment for goods supplied or services rendered.
management of their respective counties, including avoiding, identifying and resolving financial problems. Essentially, with respect to accountability for county financial management the buck stops at the door of the county chief executive. The executive committee member responsible for finance, accounting officers as well as senior officials and staff serving in county budget and treasury departments are in turn accountable to the governor in the performance of their functions and exercise of their powers. Granted the context in which county governments shall be operating, governors will also be expected to provide general political guidance over their fiscal and financial affairs.
7.2.7 Intergovernmental Fiscal Relations

The Constitution requires the national government and county governments to conduct their mutual relations on the basis of consultation and cooperation. It also provides that the national government and county governments, and different governments at the county level may cooperate by setting up joint committees and authorities in the performance of their constitutional functions and the exercise of their powers. Indeed, the Constitution requires the enactment of national legislation to provide for consultations on budgetary matters. Such consultations and support are however required to be undertaken in a manner that respects the functional and institutional integrity of government at the other level, and respect the constitutional status and institutions of government at the other level. 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.
7.2.6 Financial Management and Controls

Financial planning and budgeting are cardinal to the whole process of public finance management. Consequently, the Constitution requires national legislation to be enacted, prescribing the structure of the development plans and when the plans and budgets of the county governments shall be tabled in the county assemblies. County governments will therefore require to accord special attention to these pivotal functions to ensure effective management of their financial resources. In affirmation of the importance of this function, the Constitution stipulates that legislation be enacted to prescribe the form and manner of consultation between the national government and county governments in the process of preparing plans and budgets, including provision for public participation. County governments shall operate and maintain proper and adequate financial management systems including the procurement of goods, works and services, accounts and records, audit and reporting. In addition, they are required to be transparent and accountable to the public on the expenditure and utilization of the funds of the county. They are also required to establish a County Revenue Fund 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. Withdrawals from this Fund can only be made as provided for by an Act of Parliament or by legislation of the county assembly and with approval of the Controller of Budget. County governors, who are the chief executives officers of county governments, bear the ultimate responsibility and accountability for ensuring effective financial 74
7.2.8 Public Participation in County Financial Management

Public participation is one of the key national values and principles underscored in the Constitution that is designed to promote citizen involvement in the prioritization, planning, ownership and sustainability of local and national development within their counties. Indeed, public participation is one of the principles that the constitution stipulates shall guide public finance. It complements the other important financial management principles such as openness, transparency and accountability. It also ensures public expenditure
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is allocated and utilized prudently, responsibly and in a manner that promotes equitable development, including making special provision for marginalized groups and areas. Financial management aspects that will require public participation include: county revenues including their sources; financial planning, budgeting, allocation of money and expenditures to marginalized groups and areas, sources and expenditure of grants, sources of loans and their expenditure, project expenditures during implementation, equalization fund allocations and expenditures, contingency fund allocations and expenditures, expenditure review reports, among others.
two per cent of the countys budgeted operating expenditure; the existence of a recurring or continuous failure by a county to meet its financial commitments which substantially impair the countys ability to procure goods, works, services or credit on usual commercial terms. Other indicators of financial problems in counties include failure to submit their annual financial statements for statutory audit for more than sixty days and if the Auditor-General has withheld an opinion or issued a disclaimer due to inadequacies in the financial statements or records of the county, or has issued an opinion which identifies a serious financial problem in the county. The national government shall intervene if a county government is experiencing financial and operational problems, and the conditions for such intervention are warranted as prescribed in the Constitution. Such an intervention may require a financial recovery plan whose primary purpose is to secure the county governments ability to meet its obligations; to honour its financial commitments and the provision of basic services over the shortest period possible; and shall be formulated, implemented, reviewed, extended and/or terminated as specified in the Constitution and legislation. National government interventions and required recovery plans shall be designed and implemented in a manner that ensures timely restoration of the financial health of the county and resumption of duties by its leadership at the earliest, in line with the letter and spirit of the Constitution. The financial recovery plan, may among other items, include a strategy for reducing unnecessary expenditure and increasing the collection of revenue, as may be necessary; the identification of human and financial resources needed to assist in resolving financial problems, and where those resources are proposed to come from; identification of actions that are necessary for the implementation of the recovery plan, distinguishing between the actions to be taken by the county and those to be taken by other parties; the liquidation of specific assets, excluding those needed for the provision of the minimum level of basic county services; debt restructuring or debt relief; special measures to prevent unauthorised, irregular, fruitless and wasteful expenditures and other losses; the identification of any actual and potential revenue sources; setting of spending limits and revenue targets; provision of budget parameters which bind the subject county government for a specified period or until stated conditions have been met; and identification of specific revenue-raising measures that are necessary for financial recovery, including the rate at which any county tax, fees and charges shall be set to achieve financial recovery.
7.2.9 Financial Management Capacity Building

Prudent and sound financial management is key to the credibility, effectiveness and success of county governments. This will in turn be achieved through acquisition and continuous development of qualified, competent and committed staff as well as the adoption and application of innovative and modern financial management systems that draw on local and international best practice. Staff training, reskilling, exposure and dynamism shall be important mechanisms for enhancing the capacity of county governments to deliver on their mandates. The national government shall facilitate the exchange of information with county governments, and consult, assist and support them in building strong financial management capacity. It shall, as required under the Constitution, also assist and render support in the implementation of the policies and legislation of counties. Indeed, if the financial management of county governments, urban areas and cities or county public entities is strong, they can flourish and become important instruments for wealth and employment creation; if not, they will struggle or even collapse and undermine citizens confidence in the devolved system of government.
7.2.10 Resolution of Operational and Financial Problems

County governments are required to meet their financial obligations, and bear the primary responsibility of avoiding, identifying and resolving financial problems in their respective counties. In determining the seriousness of a financial problem in any county government, all relevant facts shall be considered either singly or in combination. Some of the factors to be considered may include: default on contractual and financial obligations; expenditures that exceed revenues for at least two consecutive financial years; operating deficits that are in excess of five per cent of revenues; failure to make obligatory payments as and when due, particularly where such payments are individually or in the aggregate more than 76
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7.3
Recommendations
7.3.1 Secure, Reliable, Stable and Predictable County Revenues

TThe principle that funds must follow and match functions should form the basis of sharing of revenue raised nationally between the national government and county governments including functions transferred from one level of government to the other. In this regard, the term revenue raised nationally is taken to mean penalties, forfeitures, rents and dues and all other receipts of the National Government, from whatever source arising, over which Parliament has power of appropriation. The functions assigned to each level of government should be accurately costed through a joint intergovernmental forum in order to determine the exact financial resources that shall be allocated to each level every year. Conditional and unconditional grants shall be allocated through a joint intergovernmental fiscal relations budgeting framework based on an objective criteria approved by Parliament. Sharing of grants would be based on the criteria for equitable sharing of national revenue stipulated under Article 203 of the Constitution 2010. The Rating Act (cap 267) and the Valuation for Rating Act (266) should be amended to provide for the rating of properties in counties to be based on both the improved and unimproved site values. The current contribution in lieu of rates (CILOR) system of payment of rates by the national government should be discontinued due to its ineffectiveness. There should also be no exemption for payment of rates by government ministries, departments, agents or any other person. County governments should either establish a department to collect tax revenues or outsource the entire or part of the revenue collection function to KRA or to a tax revenue collection institution established to serve all the 47 counties. Legislation shall be enacted to enable county governments to levy royalties on minerals, forest, and wildlife, marine and other natural resources within their areas of jurisdiction and to regulate how such levies will be effected without adversely affecting cross county access and use of such resources.
Each of the existing devolved funds should be rationalized to decide which should be retained, which ones should be merged, which ones should be administered and managed by county governments, the governance and management frameworks for each fund, the appropriate level for their administration and management, their level of funding and sustainability. Such rationalization shall take into account the allocation of functions under the constitution, other pertinent constitutional provisions such as the separation of powers, the enabling statutes for the funds and desired impacts.
7.3.2 County Borrowing and Public Debt Management

It is recommended that loans raised by county governments should only be applied for capital expenditure leading to measureable improvements in county governments productive capacities. Borrowing for recurrent expenditure should be for bridging purposes only when necessary during a fiscal year. Consideration and recommendations of loans for county governments shall be coordinated under the Intergovernmental Loans and Grants Council. The Loans and Grants Council shall concurrently consider the borrowing requirements of the national government with those of the county governments to forestall the possibility of either level of government overcrowding the other level. Parliament shall enact legislation to provide for efficient, transparent and accountable conditions for and processes of approval of loan guarantees by the national government. County governments shall formulate and implement credible debt management policies and strategies to ensure public sector indebtedness is maintained on a sustainable path. The policy shall provide for a clear legal and institutional framework for public debt management in county governments. County governments shall consolidate all borrowing requests including those for cities and urban areas and county public entities within their jurisdictions and present the consolidated request for approval by the county assembly and national government guarantees.
7.3.3 Financing Cities, Urban Areas and County Public Entities

The manager of a city or a municipality or the chief executive of a county public entity shall be the accounting officer of the city or municipality or the county public entity; and shall be responsible and accountable for the effective financial
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management of their respective organizations, including the safeguarding, maintenance and management of their assets and liabilities. Cities and urban areas shall finance their functions through budgetary allocations from the county government under which the city or municipality falls; any taxes, fees and charges assigned by the county government to the city or municipality; national government grants assigned through the county government budget; grants from other organisations; loans guaranteed through the prescribed constitutional and legal framework and loans from the County Infrastructure Development Fund; and investment income. County public entities will finance their functions in a manner similar to cities and urban areas, except they will not be entitled to charging taxes like the latter. Cities, urban areas and county public entities shall otherwise operate and maintain proper and adequate financial management systems including the procurement of goods, works and services, accounts and records, audit and reporting similar to those of county governments. Legislation shall provide for the protection of the management of cities and urban areas or county public entities in their diligent discharge of their duties from unwarranted interference by the national and county governments executives, elected and appointed officials. Appropriate sanctions provided in legislation shall be enacted to discourage and prevent such interference. Cities, urban areas and county public entities shall submit reports, returns, notices and other information to their parent county governments, as may be required; and shall, where necessary, promptly report their inability to comply with these requirements including provision of reasons for such failure.
In addition to intergovernmental transfers, own revenues, grants and loans, county governments shall, where deemed appropriate, use PPPs to mobilize finance for the delivery of infrastructure and other services. Capacity for negotiating and managing PPPs is essential for ensuring counties benefit and obtain value for money from such arrangements. A County Infrastructure Development Fund shall be established to offer long term loans for financing infrastructure and capital investments in county governments including in cities, urban areas and county public entities. Details on the capitalization, governance and operations of the Fund shall be provided by regulations initiated by the organization of county governments and approved by Parliament. County governments may establish and capitalize county public entities that are operated on commercial lines under autonomous boards and managements which in addition to delivering basic services can generate investment income for the county governments.
7.3.5 Public Procurement

It is recommended that the Public Procurement and Disposal Act, 2005 be amended to provide for the development of a procurement policy by the county governments, the categories of preference in the allocation of contracts, the protection or advancement of persons or groups previously disadvantaged by unfair competition or discrimination and the placing of sanctions against persons who have defaulted on their tax obligations, or are guilty of corrupt practices or serious violations of fair employment laws and practices.
7.3.6 Financial Management and Controls

County governments shall be required to develop short and medium term integrated development plans that will form the basis of budgeting. Due to the interdependent nature of the developmental activities and programmes of the national government and county governments, the development plans of the latter shall to the extent possible be aligned to the national development plan. County governments shall adopt a budget system that integrates and harmonizes policy, planning and budgeting in the short and medium term to ensure certainty and consistence in funding and to provide mechanisms for containing expenditures within the budget while allowing flexibility.
7.3.4 Financing County Infrastructure

County governments should establish a data bank on the scope, extent and quality of infrastructure within their jurisdictions to help them in establishing their infrastructure gaps and assist them in the prioritization of their capital investment programmes. County governments shall through joint authorities, collaborate with the national government, other counties, state organs, private sector and non-state agencies to mobilize financial resources to finance their infrastructure.
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National legislation shall be enacted to provide for an intergovernmental framework for coordination and consultation on fiscal, budgetary and financial matters between the national government and county governments. The constitutional principle on public participation shall be observed by respective county governments during planning, budgeting, expenditure and implementation reviews. County governments shall formulate policies, establish institutions and operate efficient, transparent and accountable fiscal and financial management systems in line with international best practices. County governors shall in consultation with the executive committee member responsible for finance and with the approval of the county executive committee, designate persons to be known as accounting officers, who shall be responsible and accountable for any service in respect of which moneys have been appropriated by the county assembly. County governments shall establish a directorate responsible for internal audit as well as an independent internal audit committee, whose members shall not be state or public officers drawn from professional bodies, the private sector and civil society. Legislation shall provide for financial management responsibilities and accountability roles of the governor, the executive committee member responsible for finance, accounting officers and officials and staff of the budget and treasury department in county.
National legislation shall be enacted to establish the Loans and Grants Council to provide an advisory forum for the cooperation, consultation and negotiation between the national and county governments on matters relating to borrowing and donor grants, including monitoring of inflows and use of grants, data bank on public debt and grants, documentation and audit of public debt, among other matters. County governments can cooperate to constitute county clusters for purposes of representation and participation in both the Budget Council and the Loans and Grants Council. The constitution of the said county clusters may take into account the potential for shared natural resources and services; commonality of economic sectors; potential for economies of scale; and effectiveness in representation. Loans and donor grants shall be appropriated as revenue or appropriations-inaid in the annual and forward budgets of county governments. Programmes to be funded by such loans and grants shall be developed by the county executive and incorporated in county budgets for consideration and approval by county assemblies.
7.3.8 Public Participation in County Financial Management

County governments shall formulate policies on public participation on all financial management aspects. The views given by the public during county public participation forums on financial matters shall be recorded for accountability, and taken into account when making decisions, formulating policy and legislation. County governments shall in cooperation with the Senate ensure effective public participation during the process for determining the basis for allocating among counties, the share of revenue that is annually allocated to the county level of government.
7.3.7 Intergovernmental Fiscal Relations

County governments shall cooperate and consult with the national government and among county governments on matters relating to fiscal, budgets and financial issues within the context of the institutional framework established under national legislation. National legislation shall be enacted to establish a Budget Council to provide a forum for cooperation, consultation and negotiation between the national and county governments on matters relating to budgets, including issues relating to the sharing of revenues raised nationally, conditional and unconditional grants, and equalization fund appropriations, among other matters. 82
7.3.9 Financial Management Capacity Building

County governments shall formulate and implement financial management capacity building policies and programmes to cater for state and public officers serving in the county executive and county assembly; and which shall be incorporated in county strategic and other plans and evaluated in their performance contracts. County governments financial management capacity building programmes shall be comprehensive and holistic focusing on human development, equipment,
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tools, plant and vehicles, information communication technologies, management information systems, broad spectrum of the discipline of the financial management function, financial risk management, dynamic finance management review systems, potential impacts of local and international financial innovations and trends, among others. During the transition period, the County Transition Authority shall closely work with the relevant national government departments and the Commission for the Implementation of the Constitution (CIC) to ensure the laying of a firm foundation for financial management capacity of counties.
expert or any suitably qualified person to perform any specific work for the service including the preparation of the plan in accordance with the directions of the service. The national government and its representatives shall have access to information, records and documents for the purposes of identifying or resolving the operational and financial problems of the county, if the national government intervenes in a county government as provided for in the Constitution. If a county government is unable to meet its financial commitments it may apply to the High Court for an order to stay, for a period not exceeding 90 days, all legal proceedings including the execution of legal process, by persons claiming money from the county government or a county public entity under the sole control of the county. Notice of an application for an order to stay legal proceedings arising out of its inability to meet its commitments shall be given to the Cabinet Secretaries responsible for devolved government and finance, the Controller of Budget, Council of County Governors; and its main creditors.
7.3.10 Resolution of Operational and Financial Problems

If a county encounters a serious financial problem or anticipates problems in meeting its financial commitments, it shall immediately seek solutions for the problem and, where necessary, notify the Cabinet Secretary responsible for devolved government and the Cabinet Secretary responsible for finance and any organizations of county governments. National legislation shall prescribe the criteria for the determination of operational and financial problems and the conditions necessary for national government intervention procedures. The legislation shall also prescribe the objectives, approval, implementation, review, amendment and termination of county governments recovery plans. National legislation shall provide for the establishment of the county governments financial recovery service and specify the qualifications and appointment of the head of the service, who shall be designated as a state officer. The functions of the county governments financial recovery service shall include assisting in the identification of the causes, making recommendations on best practices in resolving such problems and the preparation of financial recovery plans. On request by the Cabinet Secretary responsible for devolved government, the county governments financial recovery service shall monitor the implementation of any financial recovery plans that it has prepared, and may recommend such amendments and revisions as are appropriate. The Cabinet Secretary for devolved government may, in consultation with the Cabinet Secretary responsible for finance, engage the services of any financial 84
7.4
Expected Outcomes
As earlier pointed out, the mandate of county governments is an onerous one. Given the high expectations of county governments and guarded optimism in some quarters of their potential, the public financial management provisions recommended will be a key building block in ensuring that they perform. The policy interventions outlined above will result in the following outcomes: County governments shall have sufficient, stable and predictable funds to finance the functions allocated to them by the Constitution. County governments will have enhanced revenues through maximization of their revenue potential by operating innovative, effective and efficient revenue collection methods. There will be enhanced efficiency in the utilization and management of devolved funds through the amalgamation and allocation of the funds through the intergovernmental transfers to the county governments. The envisaged reforms will result in restructured, transparent, accountable and efficiently managed devolved funds. County governments, cities, urban areas and county public entities shall access loans that will enable them to finance infrastructure and other capital investments. The proposed policy framework will enable the borrowing requirements of county 85
governments to be consolidated with those of cities, urban areas and county public entities for approval by the county assembly and in seeking approvals for national government guarantees. County governments, cities, urban areas and county public entities will only borrow funds up to a level that is sustainable and hence avoid accumulating excessive public debt and getting into financial problems. The appointment of an accounting officer will improve transparency and accountability in the financial management of county governments, cities, urban areas and county public entities. Cities, urban areas and county public entities will have adequate funds to perform the duties allocated to them from the funds that they will receive from their respective county governments, other assigned revenue sources and from grants and loans. There will be improved efficiency and effectiveness in the management of financial resources and procurement of goods and services due to the adoption of the prescribed financial management system. There will be improvement in financial management in county governments due to the protection that will be offered to officers and staff from unwarranted interference from executives and elected state and public officers. The general public shall participate and be well informed of the activities and performance of the county governments and its institutions through the regular reports that will be generated and disseminated and will therefore be effective in the participation in the affairs of the cities, urban areas and county public entities. The established infrastructure data bank will lead to improved investment prioritization and planning. County governments will be able to leverage additional financial resources through joint authorities, PPPs and additional long-term funding for infrastructure development will be secured in county governments, cities, urban areas and county public entities to access long term financing. County governments will be able to deliver services efficiently through autonomous institutions that are managed and operated on commercial lines. The activities, programmes and budgets of county governments and their entities will be based on short and medium term integrated development plans thereby ensuring focused, well planned, financed and executed development. County governors, who are the chief executives for their respective county governments, shall be legally compelled to assume responsibility and accountability for financial management in their counties, cities, urban areas
and county public entities within their jurisdictions. There will be better utilization of public funds due to the consultations and coordination between the two levels of governments and the participation of the public during the entire budgeting and project implementation process. There will be improved financial risk management due to an effective internal audit directorate supported by an independent internal audit committee. The clear distinction of the role of the governor, executive committee member responsible for finance and the accounting officers in financial management will create harmony in the county government. In line with the model of Cooperative Devolved Government established under the CoK 2010, the various Intergovernmental Forums will result in better cooperation, consultation and working relationships between the two levels of government. Through these fora, revenue raised nationally and allocation of grants will be shared and allocated transparently and in an equitable and inclusive manner that promotes understanding between the two levels of government and promote socio-economic and political stability. Further, borrowing by both levels of government will be coordinated better to ensure reasonable balance in terms of the borrowing requirements of the national government, county governments and public debt sustainability. A key benefit of this will be reduced political and social tensions arising from perceptions about the nature of resource sharing in the country. The Kenya Vision 2030 goals of issue based politics should take root in this regard. Public participation in county financial management will lead to informed citizenry, appreciation, ownership of county development programmes, sustainability of projects, equitable development, inclusion of marginalized groups and areas and promotion of local economic development. There will be improved project planning and management and prudent allocation, utilization and accountability of public finance due to feedback from the citizenry. Capacity building measures for public finance management in counties should result in exposed, knowledgeable, skilled and competent financial management personnel. This will result in strong public financial management capacity, efficiency and effectiveness, leading to improved performance and service delivery. The resultant performing, fiscally sound and stable county governments will thus be able to achieve the task of developmental devolved government as enshrined in the CoK 2010.
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Implementation of the measures outlined in this chapter is expected to reduce financial problems afflicting counties both in terms of number and magnitude. These will mainly be due to the development of mechanisms that anticipate and put in place measures to address the causes of the problems including the intervention by the national government through County Governments Financial Recovery service in accordance with the prescribed criteria. There will be a more organized, transparent, consultative and inclusive method of addressing the financial problems of county governments guided by a financial recovery plan with clear objectives, targets and provisions for termination of national government interventions. County governments will be protected from creditors during the period of financial recovery to allow the implementation of the financial recovery plan. This will give an opportunity to the county government to stabilise their finances without negatively affecting their ability to provide services before embarking on meeting their other financial obligations.
building measures should be put in place immediately to enhance the capacities of the offices of the nascent institutions. The procurement of goods, works and services and the disposal of assets will be conducted based on a policy that requires achievement of set objectives and compliance with procurement regulations which ultimately ensures value for money. County governments have a range of options for financing their infrastructure requirements including the use of intergovernmental joint authorities and PPPs. They will also have a window for accessing long- term finance under the County Infrastructure Development Fund.
7.5
Conclusions
It is envisaged that the county governments will have adequate funds that enable them to offer high quality services to the satisfaction of their residents. County governments, cities, urban areas and county public entities will access loan funds and maintain sustainable debt positions that do not undermine institutional and national financial stability and macroeconomic stability. There will be improved financial management of county governments and its entities. Cities, urban areas and county public county entities will be adequately financed to discharge their mandates. Public participation has been recognized as an important constitutional value and principle that shall guide public finance. It complements openness, transparency and accountability in the allocation, utilization of public resources in a manner that ensures appreciation and ownership of local development by citizens and promotes inclusive and equitable development. There will be openness and accountability in the utilization of financial resources as a result of planning, audit and harmony in the management of the finance function. There will be harmony and improved relations between the two levels of governments. County government financial problems will be addressed and resolved in an organized and transparent manner that allows for the continuation of the provision of services during the period of financial recovery. Capacity
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apter Ch
Strategic Public Communication and Civic Education

8.1
Introduction
n order for devolution to be understood and owned by the citizens, communication of the various policies and management of public affairs under the new devolved system will be a key plunk in governance. Citizen access to public information will ensure effective participation and provide mechanisms for accountability. The devolved system of government is a new approach to governance in Kenya. Civic education will provide citizens with the necessary knowledge to be able to internalise and apply the values and principles of devolution at the same time engage meaningfully in decision-making.
8.2
The Issues
8.2.1 Public Communication

The Constitution recognizes the role of public communication and access to information as critical components of public participation in development. Under Article 35 (1) of the Constitution, access to information is a right which enables every citizen to access public information. Article 33 (1), (2) and (3) ensures that every person has the right and freedom to seek, receive or impart information or ideas. In the past pubic communication has been a one-way top-down instruction oriented by government to citizens. The content has been about government activities and decisions rather than the exchange of ideas between citizens and government, and 90 91
among citizens. This resulted in exclusion of citizens contribution and influencing the development agenda. The centrality of public communication and access to information in the promotion of good governance through citizens participation for successful implementation of devolution cannot be over emphasised. It is through public communication that citizens interrogate public policy and input into decision-making. The core values of a democratic society are the presence of public debate about the distribution and execution of power; the choices to be arrived at through public policy debates are scrutinized and contested. Thus the absence of such interactions in a society undermines democratic governance. This situation raises fundamental legal and policy questions on what needs to be done in the communication and information sector so as to address emerging challenges under devolved system of government.
accountable; mainstreaming of the bill of rights and national values; and engagement in implementing the devolved system of government. Civic education will create linkages between the two levels of government and therefore promote national cohesion.
8.3
Recommendations
8.3.1 Policy Recommendations

Public Communication Citizens need to have access to information to be able to contribute to governance by influencing decision-making. The role of public communication and information needs to be seen and understood as cross-cutting in all governmental activities and interventions. Public communication and provision of information to citizens must be integrated into government democratic and development agenda. It is therefore further recommended that the national and the county governments should fully embrace the central roles of communication and information; and that efforts be made by the county governments to create an interface between the existing communication structures and channels such as the media and their roles in enhancing awareness creation and citizens participation. It is also critical that the county governments establish communication structures, frameworks and mechanisms for promoting access to information. This will require the facilitation of relevant media of communication structures to be created at the county level with special attention given to traditional media; preparation and adoption of plans for developing human resources in ICT and the establishment of locally based low-cost and accessible internet services. In this regard priority will be given to rural parts of counties, including villages; and capacity building for the marginalized groups such as women, youth, aged and minorities. Counties will also assess, analyze and prioritize communication and information needs to determine requirements and set up information and communication services in key sectors. This will require the establishment of strategic public communication structures such as community radio stations, TV stations, ICT centres, and traditional media for purposes of increasing citizens awareness, cohesion, and cooperation with the objective of empowering citizens to hold the institutions of governance to account. Civic Education To ensure that citizens cultivate virtues, acquire knowledge and skills necessary for active participation in the new devolved system of governance, civic education
8.2.2 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. The understanding and appreciation of the devolution by Kenyans is minimal despite having voted for the new Constitution whose backbone is the devolution of power and resources to enable participation by the citizen in decision-making. The debate leading to the referendum was dominated by presentations and interpretations that did not seek to explain the values, benefits and operational challenges associated with devolution. The constitution provides for participation of the people as a national value and principal of governance. This presupposes that the citizens ought, by right, to participate in determining how they are governed. Additionally, the constitution emphasises rights and freedoms of citizens in Article 33 (1) to (3) that makes provisions for the freedom of expression; Article 33 (1) that provides for the freedom to seek, receive or impart information or ideas; and Article 35 (1) to (3) 0n access to information. Article 6 (3) states that a national state organ shall ensure reasonable access to its services in all parts of the Republic. To ensure an informed citizenry that actively participates in governance affairs of society on the basis of shared knowledge and ownership therefore, relevant civic education will enhance citizen participation through improving understanding, appreciation and promotion of democracy; and holding institutions of governance 92
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will become an essential part of public life. It will require a framework that ensures that appropriately designed curriculum, methodology and delivery approaches are instituted.
8.5
Conclusion
8.3.2 Legislative Recommendations

Public Communication Critical and significant constitutional guarantees on press freedom, access to information and freedom of expression that anchor public communication will require the enactment of an overarching organic law that leverages the constitutional provisions on freedom of expression; freedom of the media; access to information; and freedom of Association. Further, there will be need for the regulation of editorial content of the media and language of broadcast. Besides the observation of media ethics, standards and professionalism will continue to be critical. It is also recommended that the repeal and/or amendments of existing Acts of Parliament related to fundamental rights and freedoms of the media, communication and information sector be undertaken as a matter of urgency. Civic Education In order to ensure the realisation of civic education on devolution, national legislation will provide for national and county comprehensive civic education curriculum on devolution that should be developed through the partnership of government and non-state actors. The legislation will, among others items, cover special initiatives targeting women, minorities, marginalised communities, the youth, Persons With Disabilities (PWDs), and others less likely to access mainstream delivery; initiatives encouraging and promoting citizens full participation with linkages between civic education and training of public servants; and monitoring and evaluation of all civic education programmes will ensure delivery that embraces the promotion of constitutionalism, development and nationhood.
One of the key anticipated challenges in rolling out devolved government is the knowledge gap, intentional or otherwise, between and amongst citizens. The creation of a strong public communication and civic education effort will be key in shielding implementation of devolution from efforts to roll back gains or stymie implementation. In this respect, the programme for Civic Education Programme on Devolution (CEPOD) is provided in Annex VI.
8.4
Expected Outcomes
The main expected outcome of public communication, including civic education will be a shared understanding by all stakeholders of the key foundations of devolved government as articulated in the CoK 2010. Stakeholders will then know what to expect and their responsibilities in that regard. It is also expected that this will generate more trust in and amongst the implementing organs and reduce or mitigate conflict.
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Intervention and Suspension

9.1
istorically the national government has exercised immense control over local governments, including the power under the Local Government Act to dissolve local authorities. In contrast, the philosophical basis of the devolved government structure in the CoK 2010 is one of autonomously functioning county governments, controlled only by locally elected representatives. However, due to policy formulation and standard setting functions assigned to the national government a limited measure of oversight over county level of government is envisaged. The Constitution under Articles 190, 192 and 225 has provided for very restricted circumstances for intervention in the affairs of the county governments and suspension of a county government by the president.
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9.2
Introduction
National Government Intervention
9.2.1 Effective performance of county government functions

Article 186 and schedule four of the CoK 2010 assigns functions to National and County governments. Both governments are required to diligently perform and to the satisfaction of the citizens. The constitution requires that the county governments should be provided with sufficient resources to ensure adequate, affordable, reliable and high quality provision of services. County governments are therefore required to establish and operate appropriate structures, policies, legislation, plans, strategies and management that will ensure the satisfactory
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provision of services within their jurisdictions. Where a county government is unable to perform the functions assigned under the Constitution, the national government may pursuant to Article 190 (3) (a), intervene to ensure such functions are performed satisfactorily. The functions of a county government are performed either jointly or separately by the county assembly and/or the county executive committee. The inability of either or both of the two arms of the county government to perform their respective functions could lead to their failure to effectively deliver the required services. The role of the county assembly is to enact county bills into laws or by laws, to consider and approve matters referred to them by the county executive including vetting of executive committee members and senior county public officials. The county assembly also considers and approves strategic plans, annual budgets, audit reports, collect local revenues, loans, grants, review investment and expenditure reports and connected matters. In performing their functions, county assemblies may constitute committees whose reports are tabled for consideration and adoption by the assembly. On the other hand, the county executive committee is responsible for implementing county legislation; and implement national legislation within the to the extent that the legislation so requires; managing and coordinating the functions of county administration and its departments; and perform any other function conferred on it by legislation. In addition, the county executive is responsible for formulation of county policies; preparation of strategic plans including plans for the management and exploitation of the countys resources as well as infrastructure investment plans; project planning and management; financial management including matters relating to revenues, budgeting, borrowing requirements, and loan guarantee requests; production of annual financial statements; response and action on audit queries, regular of preparation of sector reports and their submission to the county assembly; preparation of reports requested by the county assembly, human resources management and capacity building, among others.
received the proposed budget two months before the end of the financial year; or within fifty days if the budget is received on a date later than 1st of May of every financial year or does not meet within thirty calendar days to consider and make a decision on county borrowing requirements, and loan guarantee requests. Also if it does not meet within thirty calendar days to consider and make a decision on the approval of persons nominated by the governor for appointment as executive committee members or county principal secretaries and persons designated as accounting officers for county departments, urban areas and cities and county public entities then it is considered incapable to perform its functions. It is also anticipated that the county assembly meets to within a reasonable period to consider and make a decision on a matter necessary to facilitate the county executive to effectively and efficiently perform its functions. Further, the county assembly is expected to meet consider and approve the county strategic plan submitted to it by the county executive within three months of its submission. In the case of a county executive, it is considered incapable if it is unable to formulate key policies, and submit the same to the county assembly for approval, to appropriately guide the county in the efficient and effective performance of the functions assigned under the constitution. Also, the county executive can be deemed incapable if it fails to implement specific county and national legislation as required by the county assembly or has not developed effective structures and systems to administer and manage the affairs of the county, urban areas and cities and county public entities or is unable to satisfactorily provide the requisite services to its citizens based on the standards developed by the national government and adopted by the county governments. Other considerations include inability to prepare the countys strategic plan for submission to the county assembly, for approval consideration within nine months after the constitution of the county government. The strategic plan will include proposals for the management and exploitation of the countys resources as well as infrastructure investment. Other indications include failure to prepare the county proposed budget and submit it to the county assembly two months before the end of the financial year. The budget shall include annual work plans, procurement plans, cash flow plans, including plans for the management and exploitation of the countys resources as well as infrastructure investment plans. In addition, the budget will include expenditure proposals, revenue projections and borrowing requirements, and loan guarantee requests. Others include failure to execute project implementation
9.2.2 Failure and Inability of County Governments to Perform their Functions

A county government will be considered unable to perform its functions if either the county assembly or the county executive or both fail to perform any of their functions. A county is deemed unable to perform its functions if it fails to meet within a period of three months to consider and make a decision on county legislation, approve the county budget by 20th of June of every year after having 98
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included in the budget, and failure to prepare regular and annual sector reports including human resources management and capacity building as required by the county assembly.
administration and management of the affairs of the county reverts to the county government. The implementation period may however be extended by the Cabinet Secretary, with the approval of the Senate. The person(s) or firm(s) responsible for implementing the recovery plan shall be required to prepare monthly reports that shall be submitted to the Cabinet Secretary responsible for devolved government and the county government. Copies of the monthly reports shall be submitted to Parliament, the Commission on Revenue Allocation and the Controller of Budget, County Government Coordination Council and the Council of Counties for information. The county government shall be required to give all the necessary support to the person(s) or firm(s) responsible for preparing and implementing the recovery plan to facilitate them in their work; including providing them with the requisite financial, personnel, policy, legislative, office space, records, reports, and communication facilities. During the intervention period, the Cabinet Secretary responsible for devolved government may suspend or reassign some of or all the duties and responsibilities of the county government to the person(s) or firm(s) responsible for implementing the recovery plan. At the end of the intervention the person(s) or firm(s) responsible for implementing the recovery plan, shall prepare and submit a plan to the Cabinet Secretary responsible for devolved government and the county assembly specifying actions that have been undertaken to address the operational weaknesses identified and recommendations for the future governance, administration and management systems that shall be adopted and implemented by the county to enable the effective performance of their functions. The Senate may, after the review of appropriate progress reports submitted to it by the Cabinet Secretary responsible for devolved government and satisfying itself that the objectives of the recovery plan have satisfactorily been achieved, resolve to terminate the national government intervention at any time. The Cabinet Secretary responsible for devolved government shall submit the report on termination of the national intervention to Parliament and National Government, the Commission on Revenue Allocation and the Controller of Budget, the county government, County Coordination Council and the council of counties for information.
9.2.3 Policy Recommendations

If the Cabinet Secretary responsible for devolved government becomes aware that a county is experiencing operational problems that may hinder its ability to perform its functions effectively, the Cabinet Secretary shall promptly consult the governor of the county to determine the facts; assess the seriousness of the situation and the countys response to the situation; and determine whether the situation justifies or requires an intervention in terms of Article 190 of CoK 2010. The Cabinet Secretary responsible for devolved government may inform Parliament, National and the County Government Coordination Council and the Council of Counties of the failure of the county government to perform its functions. It is also recommended that the Cabinet Secretary shall promptly decide whether or not to intervene in that county. If the Cabinet Secretary decides to intervene, he or she shall give a four week notice to the county government conveying the national governments decision to intervene and outlining the measures that will be taken during the intervention, including communication that the costs relating to the recovery plan shall be paid from the county revenues. Copies of the notice to intervene shall be given to Parliament, the Commission on Revenue Allocation and the Controller of Budget, County Government Coordination Council and the Council of Counties for information. The cabinet secretary shall also appoint a competent person(s) or firm(s) with relevant expertise to prepare and implement a properly costed intervention plan with clear performance targets and timelines to ensure that the county government is able to perform its functions effectively. In addition, the Cabinet Secretary responsible for devolved government shall submit the recovery plan to Parliament, the Commission on Revenue Allocation and the Controller of Budget; and each of the institutions, may, within thirty days, make proposals and recommendations on the implementation of the recovery plan. Such recommendations shall be taken into account in the final recovery plan approved by the Cabinet Secretary. The recovery plan and related costs shall be approved by the Cabinet Secretary responsible for devolved government and tabled before the county assembly and Parliament, for information. The intervention plan shall be for a period not exceeding nine months and every effort shall be expended to ensure the 100
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9.2.4 Expected Outcomes

It is expected that a successful intervention process will yield in identification of governance, administration, management and other weaknesses inhibiting the subject county from the effective performance of its functions; improved county policy, legislation, governance, administration and management systems; effective performance of the function of the county and service deliver; and useful lessons that can inform policy and legislation to enable the minimization and prevention of governance, administration and management failures in county governments.
9.3
Suspension of County Governments
arrangements for the performance of the functions of a county government. The two main functions of the county government are legislative and executive functions. However the legislative functions can only be undertaken by the County Assembly under the Constitution, which leads to the logical conclusion that during the period of suspension the county assembly stands prorogued and no legislative processes can take place. Therefore the only functions that can be exercised during suspension are the executive functions. We propose that for purposes of cost-effectiveness and continuity the county executive committee being the organ with political accountability is suspended, and an interim management board appointed by the President to manage the county with the assistance of the county administration.
9.3.1 Grounds for Suspension

The Constitution establishes and recognizes county governments as one of the two levels of government and further protects them from dissolution by the national government. At the same time, the Constitution under Article 192 gives the President powers to suspend county governments on two grounds namely; in an emergency arising out of internal conflict or war or in any other exceptional circumstances. It can be argued that these grounds are justified by the sovereign and mutually interdependant and supportive system of government that is established by the Constitution and that places the entire nation under the general supervision of the President. However it is the Task Forces view that these powers of the President must be exercised democratically and not capriciously or arbitrarily. This will entail a clear and exhaustive definition of the essential elements of the grounds for suspension provided for in Article 192 so that they are not subject to abuse. It also entails an elaboration of the procedures to be followed in exercising of the powers of suspension. Article 192 already provides for two checks on the exercise of the Presidents powers, namely recommendation by an Independent Commission of Inquiry in instances where suspension is sought in exceptional circumstances, and secondly the approval and/or termination of suspension by Senate in all cases where the President seeks to suspend a County Government. Detailed procedures in this regard are therefore necessary.
9.4
Conclusion
The constitution provides for national government intervention if a county government is unable to perform its functions. Such an intervention should be undertaken on the basis of a properly costed intervention plan with clear performance targets and timelines to ensure that the county government is able to perform its functions effectively. The intervention plan shall be for a period not exceeding nine months and every effort shall be expended to ensure the administration and management of the affairs of the county reverts to the county government and lessons learnt are used to inform future policy and legislation to forestall such failures. To guard against abuse of the provisions on suspension of county government by the President, the Task Force recommends that legislation provides specific details on the grounds for suspensions in Article 192, provides checks on the exercise of the Presidents powers, and elaborates on the procedures to be followed in exercising of the powers of suspension to ensure due process of law. During the period of suspension the law should provide for efficient and cost effective management procedures, and also take due cognisance of the constitutional and legal status of the county government.
9.3.2 Management of the County during Suspension

The period of suspension shall not extend beyond a period of ninety days, and on the expiry of this period elections for the relevant county government must be held. During this period the Constitution provides that legislation shall make
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10
The Implementation Framework for Transition to County Governments

10.1 Proactive Management of the Transition
he core pillar of the CoK 2010 is devolution. The form of devolution adopted by Kenya is explained in Chapter One (1) of this Sessional Paper. The devolved system is a major departure from the centralized system of governance to which Kenyans are accustomed. It is important to recall that Kenya had a devolved system of government at independence, but this was not institutionalized as it was abandoned at infancy for a highly centralized one in circumstances briefly discussed below. Consequently, the transition into devolved government is a fairly new phenomenon and experience. The envisaged transition has far reaching implications on the full implementation of the Constitution generally and specifically ensuring devolution works. It is therefore imperative that appropriate policy, institutional and legislative measures are put in place to guarantee smooth, orderly and seamless transition to devolved government. These measures will revolve around issues of governance, human and financial resources, infrastructure, assets and liabilities, integrated planning, budgeting, functional assignment, transfer of functions, communication and access to information, civic education, citizen participation and service delivery.
Managing transition is going to be as delicate as crossing this bridge
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The adoption of the CoK 2010 by the people of Kenya on the 4th of August 2010 and its promulgation on 27th August 2010 marked a major transition in Kenyas political governance. The initial transition was in 1963 when Kenya attained selfgovernment from a centralized colonial administration to a self-determining republic founded on democratic multi-party parliamentary politics and a devolved system of government. It was a quasi-federal system of government in design with one national and seven autonomous regional governments, each with a president. The city of Nairobi was an extra-provincial region headed by the Mayor of the City Council. Regional governments at the time, like the County governments in the Constitution, were assigned specific functions with a timetable for the transfer of the functions. The regional governments also had independent sources of revenue. Similarly, political representation in the regions was through regional assemblies at the local level and a Senate at the national level. The difference between the independence system of government and the current devolved system is that the former was a by-product of negotiations for independence. Regional governments were incorporated in the Constitution to safeguard interests of minority tribes and the settler community after independence. This contrasts with the new system that was born out of a long struggle for constitutional change and sealed through a referendum. The regional governments were dismantled by the dominant political class soon after independence through constitutional changes. The first amendment made Kenya a republic, while simultaneously weakening regional governments. The amendments reduced the powers and functions of regional governments over taxation, control of local authorities and concurrent functions, such as agricultures, education and housing. The second amendment replaced the regions with provinces and also abolished the Senate. Subsequent further diminution of taxation powers rendered the regions completely dependent on the central government for finance. In sum, the regional governments were abolished within three years of independence and the local authorities that remained as units of governance at the local level lost most of their powers to deliver services and self-financing following the enactment of the Transfer of Functions Act (1969). Thereafter, Kenya maintained a highly centralized system of government. The foregoing historical events informed the design of the current system of devolved government, particularly the entrenched powers and functions of county governments and specifically the sources of revenue. The experience of what befell the regional governments at independence should particularly 106
inform the policies that should be developed to safeguard the independence and promote the role of county governments as provided by the Constitution.
10.2 Transition to County Governments

Transition matters are given special attention as is evident from the provisions of Chapter Eighteen, and the Fifth and Sixth Schedules of the Constitution. The Constitution requires that the laws on devolved government provided for in Chapters Eleven and Twelve and the Sixth Schedule should be fasttracked within the period of eighteen (18) months. The Constitution also creates the Constitutional Implementation Oversight Committee (CIOC) of Parliament, Commission for the Implementation of the C0nstitution (CIC) and Commission on Revenue Allocation (CRA) for the purpose of monitoring not just the implementation of the Constitution, but also the transition to devolved government. Section 4 of the Sixth Schedule of the Constitution in particular provides for CIOC to monitor the implementation of the Constitution through regular reports by CIC. The reports are expected to provide progress on the process of establishing the infrastructure required for the operations of each County, locating of offices and assemblies; establishment and transfers of staff to the counties; and devolution of powers and functions to county governments. The Commission on Revenue Allocation has also been given the constitutional mandate to make recommendations on and any other matter related to revenue allocation between the County and National governments and also the monitoring of the enactment of laws on devolved governments. Section 15 of the Sixth Schedule provides for legislation to empower CIC to effectively monitor the implementation of the system of devolved government. Although legislation on devolved government is deferred until after the first election of County Assemblies and Governors (Section 2 (2) of the Sixth Schedule), it is imperative and prudent that the transition process starts before then under appropriate legislation with corresponding administrative action. This is critical because of the following reasons. First, there is need for legislation that will provide for the devolution of functions to County governments as stipulated in Section 15 of the Sixth Schedule. The legislation will make provisions for: 1. transfer of functions from the national to County governments over a three year period from the first elections under the Constitution; 107
2.
assistance and support by national government necessary to build capacity for the County governments to govern and effectively deliver services related to the functions assigned to them; criteria for consultation between county and national governments on when and how transfer of functions should be effected; and allowing for asymmetrical devolution of powers and functions.
governments after the next elections. The second phase (shown in Annex VIII) is the period of three years after the next elections as provided for in Section 15 (1) of the Sixth Schedule of the Constitution. The last phase starts after the end of phase two and will continue until all the county governments are fully in control of their affairs.
3.
10.3.1 Phase 1
There are currently two sets of public servants working within the counties. The majority belong to ministries and government departments. The others are those employed by local authorities who will be without an employer after the next election as a result of the repeal of the Local Government Act Cap. 265 under the proposed Devolved Government Act. As provided by Article 235 of the Constitution, County governments will be responsible for establishing their own public services, but before then the staff of the national government and previous local authorities will continue to provide services in the counties under the direction of relevant ministries including the ministry responsible for devolved government in respect of staff of the previous local authorities. In order to effectively deploy staff in counties for the purpose of secondment and redeployment back to their respective ministries, the audit of staff referred to in Chapter 6 is a priority in this phase. The staff audit will assist both levels of government in re-deployment of the staff and manpower planning purposes. The audit of assets and liabilities of local authorities on the one hand, and assets and infrastructure of the national government in the counties on the other, is a key aspect of this phase of the transition. This is necessary to determine how existing assets and liabilities of local authorities will be apportioned and managed; and how the physical infrastructure, particularly buildings and other assets located in the counties will be shared between the national government and County governments. This issue is particularly pertinent for local authorities; because once the liabilities are determined there will be need for a policy decision on whether the liabilities should be transferred to a sinking fund or to the national government. Secondly, the audit is necessary to ensure that local authority assets are safe during the transition. In this respect any further dealings on such assets need to be immediately halted where such audit has not been undertaken conclusively.
4.
Second, it is imperative that immediately county governments are inaugurated after the next elections they have capacity to exercise control over institutions under their jurisdiction. This requires that these institutions, which may include government departments and existing local authorities, are in the next one year before elections prepared to play their roles in the transition period. It is therefore crucial that a certain minimum set of structures are in place to facilitate the smooth transition to county governments after the 2012 elections. These include infrastructural facilities being developed and made ready and available to the County governments for day-to-day operations. Third, the national government and other relevant institutions, including the Judiciary and constitutional commissions should prepare to be of service to county governments at their nascent stages. It would be necessary therefore to mobilise all these institutions to play their relevant roles. This will require an organ to coordinate preparatory work of putting in place institutional frameworks and necessary infrastructure to prepare for county governments. This could be an existing institution that may include a government ministry. Towards this end establishment of a transitional mechanism through which administrative coordination is superintended before County governments take over is proposed. As discussed below an independent institution with legal authority is preferred. This is because of the demands for neutrality and necessities of technical know-how that will be needed to undertake preparatory work before and support after the county governments are in place. It is on these premises that a Transitional Authority, entrenched in national legislation, is seen as the appropriate mechanism capable of facilitating efficient coordination of the disparate government functions.
10.3 The Transition Programme

It is envisaged that the transition to county governments will be in three phases. The first phase (shown in annex VII) is the period prior to the inauguration of county 108
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As indicated in Chapter Three (3), urban areas will be reclassified into cities, municipalities and towns. There will be need for fresh demarcation of these urban areas for the purpose of their classification, planning and governance. This is a critical exercise which must precede the 2012 General Elections. There is also need to review on-going policy reforms, programmes and projects being implemented by the central government and local authorities to establish those to be transferred to County governments. These would include, for example projects related to functions that have been assigned to County governments by the Constitution, but currently funded by Constituency Development Fund (CDF). Others would be donor funded programmes and projects being implemented by ministries and the local authorities. One of the most critical activities in the whole process of devolution is the transfer of functions from the national government to County governments. The process leading to this activity is as described in Chapter 7 will start with the unbundling of functions by ministries, departments and other agencies (MDAs). This process was expected to start in June, 2011 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 shall be need to review legislation and policies governing all the functions to be devolved. It is estimated that about 700 pieces of legislation will have to be amended, a task that is expected to be finalized before June 2012. The process for analysing the assignment of functions will be under the supervision of the Cabinet Committee on Implementation of the Constitution (CCIC) supported by the Committee of Permanent Secretaries (CPS) with policy advisory role being played by the proposed Transitional Authority. The CPS will work through a Technical Working Group comprising of experts from MDAs and stakeholders from the non-state sector. Reports and technical papers produced through this process and approved by the Cabinet will be the basis for transfer of functions to the County governments. There will be need for County governments to underpin their decisions on solid data bases. In this respect, it will be important for the national government to collect and produce key data for each County during the transition. This can be achieved by the developing profiles of each County that provide data usually found in District Development Plans. The profiles may be extended to include estimation of macroeconomic data such as revenues, gross domestic product and inflation rates. Historical analysis of the cost of providing public services in each 110
County is an important component of this process and should be initiated at the functional analysis process. There is also need for an agreement on the budgeting for and the level of budgets to be allocated to the County governments for the 2012/13 fiscal year. This is important because even though County governments may not take over all the functions before the end of the relevant fiscal year, they will all have financial requirements from the beginning and most counties are likely to have assumed responsibility for some functions before the end of 2012/13. It is expected that the CRA will be instrumental in this undertaking while the proposed Transitional Authority will facilitate capacity building. One of the pressing activities to be carried out during this phase of the transition is civic education on devolved government. This is necessary to promote a better understanding by Kenyans on their role in the governance of County governments and the role of these governments with respect to delivery of public services. This aspect is clearly articulated in Chapter 8, which calls for the institutionalisation of civic education through legislation. This programme should be implemented immediately the devolution bills are enacted into law.
10.3.2 Phase 2
Activities in this phase will focus on institutional capacity building and assumption of powers and functions by County governments from the national government as provided for and assigned under Article 186 and the Fourth Schedule of the Constitution. The role of the national government and other actors in supporting the County governments in building their capacity will be essential, particularly as County governments take on more functions. Immediately after the first elections under the Constitution County government will need support for the following purposes: the swearingin of the Governors, Deputy Governors and the members of the County assemblies; the election of speakers of the County assemblies; and, the appointment of clerks. Support to train the County executive committee and the initial core County staff will be essential. Thereafter, the counties will require assistance to recruit and build capacity for the County public service boards. It is expected that as the County governments recruit their staff, the national government will avail its training institutes to build capacity for the County staff to prepare them deliver County services effectively. It would be appropriate; however, if an administration institute is identified, 111
anchored in statute, financially supported and developed to serve the needs of County governments. Once the county executive committees are established and functional, all public officers providing services related to the functions assigned to county governments should be considered as seconded to county governments and therefore reporting to county executive committees. Thereafter, when a county government has recruited its public officers, those officers of the national government and local authorities who will not have been absorbed into the County public services will be redeployed to their relevant ministries in the national Government. As County governments fill up established posts in their public services, seconded staff who will not have been absorbed shall be redeployed to the national government. The national government will need to make contingency plans to re- absorb such staff or deal with them as may be appropriate. This issue is of such importance that planning for it should ideally start in Phase 1. Assets previously belonging to local authorities and those of the national government whose transfer to County governments has been decided by agreement shall be divested to County governments immediately after the 2012 General Elections. Other required physical infrastructure and facilities will be developed jointly by the national and County governments with oversight by the CIC and Parliament. Priority in the development of County infrastructure would require substantial use of conditional grants. A major activity involving both levels of government is the transfer of functions to County governments. This activity must be done and concluded within the three year transition period provided by Section 15 of the Fourth Schedule. Criteria shall be developed to guide the process of transfer of functions and special attention will be paid to the capability of a County government to perform the transferred functions. In the likelihood that the transfer of functions has to be asymmetric, the criteria must be clear and objective to avoid the politicization of the process. The objective of civic education at this stage will be to entrench the principles of public participation and promotion of access to information. Involvement of citizens in all aspects of governance, particularly in decision-making will be encouraged. Civic education will therefore place emphasis on informing the citizens of their rights to participate and to hold County governments to 112
account. Citizens fora discussed in Chapter 3 will be the focal points for both civic education and public participation. It should be emphasized that activities related to both issues should be driven by local actors as a means of promoting local ownership. It is also important at this final stage of the transition that the performance of both levels of governments, including progress on the implementation of devolution, is continuously monitored and reviewed. In this respect, all activities of either governments, particularly planning and budgeting and delivery of services must have monitoring and evaluation components. Service delivery plans must be accompanied by work programmes with measurable outcomes and with clearly identified actors. The aim should be to develop a culture of accountability for service delivery by public officials that will apply beyond the transition period.
10.3.3 Phase 3
It is expected that all county governments will have assumed all the powers and functions after phase 2. In all likelihood this may not be achieved and as such further transfers would have to be made and monitored. It is proposed that this becomes the main activity in phase 3 which should start immediately phase 2 ends by August 14, 2015. Some of the issues likely to be under consideration at this stage would be: any remaining functions to be transferred from the national government to county governments; capacity building and support for county government; transfer of national functions to county governments; and development and coordination of policies between the national government and county governments. At the beginning, coordination in this period will be the responsibility of CIOC and CIC since the Transition Authority would have lapsed by then. Subsequently, after CIC will have wound up at the end of its 5 year mandate, the national government under the oversight of Parliament will continue to monitor the activities of this phase.
10.4 Recommendations
In view of the foregoing considerations, it is recommended that a Transition Authority be established to help the government coordinate the transition process.
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The function of the Authority shall be to coordinate transition to the first elected county governments and provide an interface between national government and the county governments thereafter. The Authority will be a specialized organ of government with a mandate to effectively and expeditiously provide assistance required to meet the objectives of devolution, unfettered by normal bureaucracy or political interference. The Transition Authority will work with ministries, departments and other government agencies (MDAs) to promote the principles of devolution and the establishment and support for county governments. The Authority will in particular provide the secretariat and expert support to CPS and TWGs in the development of sector reports and papers for approval by the Cabinet. In the exercise of its functions, the Authority shall make regular reports to the CIOC and CIC through the minister responsible for devolved government. It is proposed that the Authority be established under legislation provided by Section 15 of the Sixth Schedule of the Constitution.
Executive committee members appointed and approved by the County assemblies; County public service boards established; County public service fully in place in each County; Mechanism for effective transfer of functions from the national government to the County governments in place and functioning; Necessary physical infrastructure required by County governments is in place; Public awareness on devolved government enhanced;
Finally, the reclassification process of urban areas and cities would have commenced, with cities having received Presidential Charters; and municipalities, towns and other County entities will have been established.
10.5 Expected Outcomes

During the first phase it is expected that debts and liabilities of each local authority are established. In addition, the assets of the central government and the number and categories of staff of the central government and local authorities in each county shall be determined. It is further expected that the following will have been achieved during the period: Commencement of nationwide civic education on devolution started; The initial budget of each County government developed and agreed; Profiles of counties produced and printed; Definition, analysis and plan for transfer of functions published; Boundaries of cities, municipalities and towns demarcated and delimited. More importantly, all the laws necessary to implement devolution should have been reviewed and amended. In Phase 2, the second tranche of enabling legislations for county governments will have been enacted and the first batch of elected leaders at the county will have assumed their responsibilities. The initial induction process for these leaders will also have been executed. In addition to these, the following milestones will have been achieved:
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11
Strategic Risk Management Framework

11.1 Introduction
isk is the potential that a plan, activity or outcome may not be achieved due to undesirable or unplanned intervening circumstances or factors. Risk management involves the identification, assessment and mitigation of risks that inevitably accompany human undertakings or transactions. Appropriate identification and management of risks has been shown to generate benefits. These include improving accountability and governance in relation to decision making and process outcomes; development of beneficial organisational cultures, key to providing guidance and direction to people and organisations; achieving improvements in efficiency and overall institutional performance; preparing in advance for unexpected and challenging events and outcomes and generally enhancing planning processes. Devolution is one of the most transformative interventions under the CoK 2010. Our limited early post-independence dalliance with regional government notwithstanding, its actualisation presents not only a major challenge, but is essentially a leap into the unknown for the Kenyan people. Therefore, prudent governance and management of the implementation process demands that risks be anticipated. Subsequently, a strategic mitigation plan needs to be developed to ensure that risks do not undermine expected outcomes. This chapter purposes to develop such a plan to support management of the transition to devolved government.
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11.2 The Strategic Risks to the Transition to Devolved Government

A key intervention in the process of risk management lies in a careful identification of the risks that will affect the implementation process. As illustrated in Figure 10.1, we classify the risks affecting the implementation of devolution in Kenya as strategic, operational, institutional and funding. Strategic risks are perceived to be those that adversely affect the future shape and form of devolution in Kenya, especially in terms of their effect on the anticipated outcomes, in relation to the provisions of the constitution. These include misinterpretation of the CoK 2010 provisions in relation to devolution, political posturing and the electioneering processes as well as inadequate stakeholder understanding of the provisions and implications on devolution. On the other hand, operational risks relate to those that impact on the efficacy of the implementation of identified provisions in relation to the devolution processes. These include lack of capacity, poor public communication interventions, half-hearted implementation efforts and poor networks amongst key stakeholders.
Institutional risks refer to the variables that affect the ability of the various institutions in implementation to retain fidelity to the provisions of the CoK 2010 on devolution. They include development of policy frameworks inimical to the objects and principles of devolved government as provided by Articles 174 and 175 of the CoK 2010. Funding risks refer to risks arising out of poor resourcing of the process of implementing devolution. They also emanate from unacceptable utilisation of those scarce resources allocated to the process of actualising devolution.
11.2.1 Culture of Centralism and Resistance to Change

Transition from the current highly centralized system to a devolved government will not be easy. Resistance to change is likely to be considerable by those who are accustomed to a centralized system and who view decentralization as a negation of all the practices, rules and systems they have always known. There will also be considerable loss of power by those who have traditionally exercised it in a centralized system. This is likely to be resisted. It will, therefore, be necessary to design and deliver highly effective change management strategies that clearly communicate the imperatives of change and its nature and benefits.
Figure 10.1: The Risk Universe of the Devolution Implementation Process
11.2.2 Election Fever and Political Interference

The transitional process is beginning in the run-up to the 201elections and many political leaders will be tempted to view the transition to devolved government in terms of the political opportunities or threats it entails. Measures that diminish political opportunities for particular political parties or individual leaders are likely to be opposed by those leaders. It will therefore be necessary to as much as possible insulate the transitional process from the transient parochial interest of political parties and or political leaders. Transitional institutions should, therefore, to a large extent, be independent of political leaders though accountable to them through well-defined processes.
11.2.3 Lack of Capacity of Counties to Perform the Various Functions

Under the fourth schedule county governments have been given a heavy responsibility of delivering most of the essential public services at the local level including health, water, transport and agricultural services. To deliver these services at the level required by the constitution will not be easy. It will require adequate infrastructure such as hospitals which is lacking in many cases. Even where infrastructure exists, it is in deplorable condition. Adequate trained
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personnel will be another challenge. Capacity gap assessment for the delivery of services should be done in all counties within one year of the establishment of county governments. It would however be desirable that this process commences before elections.
Table 10-1: Recommended Legislation to Operationalize Devolved Government in Kenya

Proposed Bill The Devolved Government Bill, 2011 Short Title and Commencement of the Bill AN ACT of Parliament to give effect to Chapter eleven of the Constitution; to provide for county governments powers, functions, and responsibilities to deliver services and to provide for other connected purposes AN ACT of Parliament to give effect to Article 184 of the Constitution; to provide for the identification, classification, governance and management of urban areas and cities; to provide for the criteria of establishing urban areas and cities, and for connected purposes An Act of Parliament to establish a framework for intergovernmental consultation and co-operation and to establish mechanisms for dispute resolution and for connected purposes. AN ACT of Parliament to secure the sound and sustainable management of the financial affairs of county governments, cities and municipalities, and other county public entities and to provide for matters connected thereto An Act of Parliament to provide for co-operation and consultation between the national and county levels of government on fiscal, budgetary and financial matters; to prescribe a process for budgeting and the determination of equitable sharing and allocation of revenue raised nationally; to provide for a process for the determination of the control, coordination and management of borrowing; the granting of loan guarantees; the proper management of public debt by both the national and county levels government; the receipt and use by both the national and county levels of government of donor grants; and to provide for connected purposes. AN ACT of Parliament to provide for a framework for transitional arrangements and processes for the establishment and operationalization of devolved government; the phased transfer of functions and powers; and for connected purposes
11.2.4 High Recurrent Expenditure May Undermine Development.

The devolution of power and resources requires the establishment of requisite institutions of governance. The funding of these institutions, in addition to the many independent commissions created by the constitution, creates a real danger of recurrent expenditure undermining development. It will, therefore, be necessary to keep all devolved institutions lean, efficient and effective. Efforts must also be made to ensure that only institutions that are absolutely necessary are created and that there is no duplication of functions amongst the various institutions.
The Urban Areas and Cities Bill, 2011
The Intergovernmental Relations Bill, 2011 The County Governments Financial Management Bill, 2011 The Intergovernmental Fiscal Relations Bill, 2011
11.2.5 Weakening of National Cohesion and Rise of Ethnic Nationalism

If not carefully implemented, devolution of power and resources can lead to separatism and ethnic nationalism which are inimical to national unity and prosperity. Measures to enhance national consciousness and unity must, therefore, be part and parcel of implementation. Civic education will be important in inculcation of the common values that bind Kenya as articulated in the preamble and Article10 of the Constitution. Civic education should be delivered through a nationally agreed curriculum and materials which enjoy stakeholder confidence to avoid indoctrination or the propagation of political views or interests.
The Transition to Devolved Government Bill, 2011
16.3 Recommendations
In order to deal with these risks, it is recommended that the following six pieces of national legislation be prioritised to secure a system wide implementation of the devolved government under the CoK 2010. These are the Devolved Governments Bill, 2011; the Urban Areas and Cities Bill, 2011; the Intergovernmental Relations Bill, 2011; the County Government Financial Management Bill, 2011; the Intergovernmental Fiscal Relations Bill, 2011; and the Transition to Devolved Government Bill, 2011. Table 10.1 below shows the general expected thrust of each bill in securing seamless transition and operationalization of devolved government.
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In addition to securing the enactment of the national legislation documented in Table 10.1 together with the attendant regulations and institutions, it is recommended that a robust communication effort be implemented. Its goals should be to secure a common understanding of what must be done, when and by whom.
Annexes
Annex I Glossary of Terms
Borough Conditional Grants Contingency Fund County Administration A borough is an administrative division in various countries. Moneys allocated by the national government to a county government for the funding of specific projects and programs. A fund to cater for urgent and unforeseen needs for which there is no other authority or provision This is the proposed organizational unit created to manage the functions and services of the county including provision of information and recommendations with respect to policies and financial requirements of the Executive Committee. It will consists of Central Agencies providing support to the County Executive and Line Departments delivering services to the county residents. This is law enacted by the County Assembly and applicable within a county. In the context of devolution, civic education is a continuous and institutionalised process aimed at disseminating information on the new constitutional changes including; the rights and responsibilities of citizens, legal, structures of governance and the involvement of citizens in governance at all levels of government and holding national and county government accountable. The peoples collective and individual participation in the affairs of a State including; policy-making, law making, oversight, monitoring implementation, of polices and development projects at national and county levels. Statutory granting of powers from the central government of sovereign state to government at a sub national level such as a regional, local or state level. Funds to finance basic services such as water, roads, health facilities and electricity to marginalized areas. These are Sub-Committees established to ensure decentralisation of the functions of the Executive Committee and charged with the responsibility of analysing proposals and recommendations for appropriate by action to the Executive Committee. It is proposed that they be chaired by members of the Executive Committee with cooption of specific expertise as required. Comprises the financial aspects of devolution to regional and local Governments, division of spending responsibilities and revenue sources between levels of government and is also the amount of discretion given to regional and local governments to determine their expenditures and revenues.
16.4 Expected Outcomes

It is expected that making clear efforts to mitigate the risks will secure more buy-in, reduce the resource outlays, both required and that arising from wasted efforts, and facilitate a much smoother transition to devolved government in Kenya.
16.5 Conclusions
Kenyas place in the comity of nations is intricately tied to the efficacy with which we implement the CoK 2010. Our recent past has left us with an undesirable and unwanted legacy of suspicion and distrust of government. This is a tag we must loose in a hurry. Securing a smooth implementation of devolved government will not only facilitate that, but it will also lay a firm foundation for building a lean and effective government, that will earn the trust and undying loyalty of its people. More importantly, it will reduce the cost of government and that of doing business in the country. The upside will see increased investment flows, both domestic and foreign, which are key to enhancing the welfare of the people of Kenya.
County Legislation Civic Education
Citizen Participation
Devolution
Equalisation Funds Executive Sub-Committees
Fiscal Decentralization
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Horizontal Allocations
This the correction of disparities between the per capita revenue bases and spending needs of individual local governments. Intergovernmental relations are institutional mechanisms for bilateral and multilateral interaction within and between levels of government for co-ordination of government policies and functions. Local economic development offers local government, the private sector, the not-for-profit sectors and the local community the opportunity to work together to improve the local economy. It aims to enhance competitiveness and thus encourage sustainable growth that is inclusive. Communities that have been unable to fully participate in the integrated social and economic life of Kenya as a whole. For example traditional communities who have not integrated into social and economic life due to a desire to preserve their unique culture and identity from assimilation. Historically, youth, women and persons with disabilities are some of the marginalised. Can be defined as groups that are disadvantaged based on; ethnic, religious, social, linguistic or cultural basis and who are smaller in number than the rest of the population. Minorities are best defined based on either national or county demographics. Includes grants and appropriations in aid collected by ministries and departments, audited accounts. A primate city is the leading city in its country or region, disproportionately larger than others in the urban hierarchy. Moneys allocated by the national government to the county government without reservations or conditions imposed regarding the use and there are no set limits on the subsequent actions. Good urban governance is characterized by interdependent principles of sustainability, equity, efficiency, transparency and accountability, security, civic engagement and citizenship. Correction of disparities between the cost of services devolved to local government and the potential yield of its direct revenue. This is the aimed at establishing civic trust and legitimizing public institutions through a process of assessing the suitability of a person for election or employment to public office. It includes an appraisal of an individuals conduct, leadership and integrity qualities. This power is given to the Governor to withhold assent to a Bill passed by the County Assembly if it contravenes national law, is illegal or in violation of the Constitution. Such Bill should then be returned to the County Assembly for further deliberations and consideration of the Governors recommendations.
Annex II Anticipated Maximum Sizes of County Assemblies

County Number of Constituencies Five Wards per Constituency 10 10 15 15 15 15 20 20 20 20 20 20 20 20 25 25 25 25 25 30 30 30 30 30 30 30 Marginalized special seats nominated 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Gender special seats nominated 3 3 5 5 5 5 7 7 7 7 7 7 7 7 8 8 8 8 8 10 10 10 10 10 10 10 Anticipated Maximum Size of County Assembly 17 17 24 24 24 24 31 31 31 31 31 31 31 31 37 37 37 37 37 44 44 44 44 44 44 44
Intergovernmental relations Local economic development
Lamu Isiolo TharakaNithi Tana River Samburu Laikipia West Pokot Embu Elgeyo / Marakwet Kirinyaga Kwale Nyamira Taita Taveta Marsabit Trans Nzoia Bomet Nyandarua Vihiga Kajiado Narok Turkana Nandi Makueni Wajir Baringo Siaya
2 2 3 3 3 3 4 4 4 4 4 4 4 4 5 5 5 5 5 6 6 6 6 6 6 6
Marginalized Community
Minorities
National revenue Primate city Unconditional Grants
Urban governance
Vertical allocations Vetting
Veto powers
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County
Number of Constituencies
Five Wards per Constituency 30 30 30 30 30 30 35 35 35 35 40 40 40 40 45 45 45 55 60 60 85 1450
Marginalized special seats nominated 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 188
Gender special seats nominated 10 10 10 10 10 10 12 12 12 12 13 13 13 13 15 15 15 18 20 20 28 483
Anticipated Maximum Size of County Assembly 44 44 44 44 44 44 51 51 51 51 57 57 57 57 64 64 64 77 84 84 117 2,121
Annex III: Mapping of Functions from the Fourth Schedule, Constitution of Kenya, 2010
NATIONAL FUNCTIONS FOREIGN AFFAIRS 1. Foreign affairs, foreign policy and international trade. 2. The use of international waters and water resources. NATIONAL SECURITY (Defence, Internal Security and Home Affairs) 6. National defence and the use of the national defence services. 3. Immigration and citizenship. 7. Police services, including (a) the setting of standards of recruitment, training of police and use of police services; (b) criminal law; and (c) correctional services. 24. Disaster management. JUSTICE 8. Courts. 4. The relationship between religion and state. 26. National elections ECONOMIC POLICY & PLANNING 10. Monetary policy, currency, banking (including central banking), the incorporation and regulation of banking, insurance and financial corporations. 33. Public investment. 35. Tourism policy and development. 9. National economic policy and planning. 11. National statistics and data on population, the economy and society generally. 8. County planning and development 13. Control of drugs and pornography. COUNTY FUNCTIONS
Mandera Garissa Nyeri Kericho Uasin Gishu Mombasa Muranga Busia Kilifi Kisumu Kitui Homa Bay Migori Machakos Meru Bungoma Kisii Nakuru Kakamega Kiambu Nairobi Total
6 6 6 6 6 6 7 7 7 7 8 8 8 8 9 9 9 11 12 12 17 290
12. Fire fighting services and disaster management
8. County planning and development, including (a) statistics; (b) land survey and mapping; boundaries and fencing; (d) housing; and (e) electricity and gas reticulation and energy regulation.
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NATIONAL FUNCTIONS TRADE AND INDUSTRY 12. Intellectual property rights. 13. Labour standards. 14. Consumer protection, including standards for social security and professional pension plans. EDUCATION 15. Education policy, standards, curricula, examinations and the granting of university charters. 16. Universities, tertiary educational institutions and other institutions of research and higher learning and primary schools , special education, secondary schools and special education institutions. HEALTH 28. Health policy. 23. National referral health facilities.
COUNTY FUNCTIONS
NATIONAL FUNCTIONS 19. National public works.
COUNTY FUNCTIONS 11. County public works and services, including (a) storm water management systems in built-up areas; and (b) water and sanitation services. 8. County planning and development, including (d) housing;
7. Trade development and regulation, including (a) markets; (b) trade licences (excluding regulation of professions); (c) fair trading practices; (d) local tourism.
20. Housing policy. ENERGY
9. Pre-primary education, village polytechnics, homecraft centres and childcare facilities.
31. Energy policy including electricity and gas reticulation and energy regulation. LAND & NATURAL RESOURCES 21. General principles of land planning and the co-ordination of planning by the counties. 22. Protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular (a) fishing, hunting and gathering; (b) protection of animals and wildlife; (c) water protection, securing sufficient residual water, hydraulic engineering and the safety of dams; and (d) energy policy. AGRICULTURE 29. Agricultural policy.
(from above) 8. County planning and development, including (e) electricity and gas reticulation and energy regulation.
(from above) 8. County planning and development, including (b) land survey and mapping; (c) boundaries and fencing; 3. Control of air pollution, noise pollution, other public nuisances and outdoor advertising. 10. Implementation of specific national government policies on natural resources and environmental conservation, including (a) soil and water conservation; and (b) forestry. (from below) 4. Cultural activities, public entertainment and public amenities, including (i) county parks, beaches & recreation facilities.
2. County health services, including, in particular (a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal. 6. Animal control and welfare, including (a) licensing of dogs; and (b) facilities for the accommodation, care and burial of animals.
INFRASTRUCTURE 18. Transport and communications, including, in particular (a) road traffic; (b) the construction and operation of national trunk roads; (c) standards for the construction and maintenance of other roads by counties; (d) railways; (e) pipelines; (f) marine navigation; (g) civil aviation; (h) space travel; (i) postal services; (j) telecommunications; and (k) radio and television broadcasting. 5. County transport, including (a) county roads; (b) street lighting; (c) traffic and parking; (d) public road transport; and (e) ferries and harbours, excluding the regulation of international and national shipping and matters related thereto.
1. Agriculture, including (a) crop and animal husbandry; (b) livestock sale yards; (c) county abattoirs; (d) plant and animal disease control; and (e) fisheries; 7 (e) cooperative societies.
30. Veterinary policy.
2 (e) veterinary services (excluding regulation of the profession).
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NATIONAL FUNCTIONS CULTURE 5. Language policy and the promotion of official and local languages. 17. Promotion of sports and sports education. 25. Ancient and historical monuments of national importance. 34. National betting, casinos and other forms of gambling.
COUNTY FUNCTIONS
Annex IV: Proposed Sector Clustering

No. 1 SECTOR Health MINISTRIES/DEPARTMENTS Medical Services Public Health & Sanitation ODPM/Local Government Education Higher Education, Science & Technology ODPM/Local Government Youth Affairs & Sports Trade Industrialization East African Community ODPM/Finance Planning, National Development & Vision 2030 Local Government Lands Agriculture Livestock Development Fisheries Development Co-operative Development & Marketing Water & Irrigation Regional Development Authorities Development of Northern Kenya & Other Arid Lands Tourism Forestry & Wildlife ODPM/Local Government Nairobi Metropolitan Development Housing Lands Information & Communications Higher Education, Science and Technology Energy Transport Roads Public Works Housing Local Government Nairobi Metropolitan Development of Northern Kenya & Other Arid Lands Regional Development Authorities
4. Cultural activities, public entertainment and public amenities, including (a) betting, casinos and other forms of gambling; (b) racing; (c) liquor licensing; (d) cinemas; (e) video shows and hiring; (f) libraries; (g) museums; (h) sports and cultural activities and facilities; and (i) county parks, beaches and recreation facilities.
Education
Trade and Industry
CAPACITY BUILDING 32. Capacity building and technical assistance to the counties. 14. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level. 4 Finance, Economic Policy & Planning
Agriculture
6 7
Tourism & Wildlife Local Government & Urban Development
8 9
Knowledge Management Infrastructure
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No. 15 14 13 12 11 Foreign Affairs Human Resource Development National Security Land &Natural Resources Culture & Social Development 10 Justice SECTOR

Foreign Affairs East African Community Trade Forestry & Wildlife Environment & Mineral Resources Water & Irrigation Lands Regional Development Authorities National Heritage Gender, Children & Social Development Youth Affairs & Sports
MINISTRIES/DEPARTMENTS
Annex V - Recommended National Planning Framework

Level of Government National Planning Tier National Planning Vision & Strategies Planning Instrument National Vision & Strategies Content of Plan Medium term and Long term national vision and strategies including overall resource mobilization framework National Sector Planning National Sector Plans & Strategies National sector goals and strategies including resource mobilization frameworks Legal Basis National Planning Law National Land Commission Law Policy Player/s Parliament Conference or Forum of Ministers of Planning (national and county) National Planning Law National Land Commission Law National Sector Laws National Spatial Planning National Spatial Policy and Plan Principles and guidelines for spatial planning to realize long term national vision National Planning Law National Land Commission Law Parliament Conference or Forum of Sector Ministers (national and county) Parliament Conference or Forum of Ministers of Planning (national and county) Legal Impact Binding on all planning authorities Time Horizon or Scale 10 years, 30 years or more
OPM Public Service Labour Education Higher Education, Science & Technology Public Service Commission
Defence NSIS OVP/Home Affairs Provincial Administration & Internal Security Immigration & Registration of Persons Special Programmes
Justice, National Cohesion & Constitutional Affairs State Law Office
Binding on all planning authorities
10 years and reviewed every 5 years Continuous as need arises
10 years and reviewed every 5 years
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Level of Government Special Regions Regional Planning (National and County Planning) Special Regional Plans & Strategies Functional Metropolitan Plans Specific goals for sectoral or multisectoral, Special regional development requirements including resource management and mobilization frameworks County development vision, priorities and strategies and will form the basis for development of county sectoral, institutional and spatial plans Provide detailed sector pans and strategies including measures to integrate implementation of national level priorities within the county Devolved Governments Act National Sector Laws Devolved Governments Act National Planning Laws County Assembly County Forum on Planning All Municipalities in a County Binding on all planning authorities National Planning Law National Sector Laws Devolved Governments Laws Binding on all planning authorities Parliament County Assemblies Conference or Forum of Sector Ministers (national and county) Planning Tier Planning Instrument Content of Plan Legal Basis Policy Player/s Legal Impact Time Horizon or Scale 10 years and reviewed every 5 years 1:100,000 1:25,000

County County Integrated Development Plan County Planning County Sector Planning County Sector Plans Five years, with mid-term reviews Binding on all planning authorities Level of Government Planning Tier County Spatial Planning Planning Instrument County Spatial Plans Content of Plan 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 City/ Municipal City/Municipal Planning City/Municipal Land Use Plan Basic form of types of land uses envisaged for the entire municipal area in accordance with intended developments linked to the county and national frameworks City/Municipal Building Plan Clear statement on the arrangements for urban and rural development and order in the form of legally binding designations for specific parts of the territory of the municipality Legal Basis Devolved Governments Act Policy Player/s County Assembly County Forum on Planning All Municipalities in a County Legal Impact Binding on all planning authorities Devolved Governments Act National Planning Law National Building Code City/Municipal Council City/Municipal Planning Forums County Assembly Binding on all planning authorities Five years and reviewed mid-stream 1:10,000
Five years, with mid-term reviews
10 years and reviewed every 5 years Continuous as need arises
Time Horizon or Scale 10 years, reviewed every five years 1:50,000
Devolved Governments Act National Planning Law National Building Code
City/Municipal Council City/Municipal Planning Forums County Assembly
Five years and reviewed mid-stream 1:1,000 1:500
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Level of Government Ward Zoning Plan City/Municipal Council Binding on all planning authorities Detailed legally binding designations for specific parts of the territory of the municipality Devolved Governments Act National Planning Law National Building Code Planning Tier Planning Instrument Content of Plan Legal Basis Policy Player/s Legal Impact Time Horizon or Scale Five years and reviewed mid-stream 1:1,000 1:500
Annex VI - CEPOD Implementation Plan

Strategic Intervention Area Establish Expert Committee on CEPOD Responsibility ODPM & MoLG Timelines September 2011
Design instrument of collaboration Mapping and Contracting of Civic Education Providers at the County Level
ODPM & MoLG ODPM & MoLG
September 2011 October 2011
ODPM & MoLG Capacity Building of civic education committees and providers Development and Enforcement of CEPOD code of ethics ODPM & MoLG ODPM & MoLG ODPM & MoLG
October 2011 October 2011 October 2011 November 2011 Establishment of County Civic Education Committees Design Development, Publication and Dissemination of CEPOD
Facilitative actions Set out criteria for membership Invite applications and shortlist Interview and appoint members Provide working space Allocate resources for functioning of Committee Draft a collaboration document setting out principles of engagement between governments and civic education providers Map out the counties in terms of; Venues for CEP at the Counties Invite applications for County civic education providers and shortlist Interview and appoint Develop training manuals for Civic Education Providers and Committees Preparation of codes and ethics that guide the process of civic education in the field and control the civic education officers in the field Prepare contact list with contact persons
Design, develop and implement an effective media strategy
Development of a common civic education providers guide Common source book Pamphlets in Kiswahili, English and county language, simplified version of the constitution and its official translation into Kiswahili and county languages Develop newspaper pullouts and gazette supplement Radio host programmes Conduct civic education in the county governments Undertake Mass Awareness on constitution and devolution Design and Apply M &E tool for CEPOD Develop an M&E tool
ODPM & MoLG ODPM & MoLG ODPM & MoLG
December 2011 January 2012 March 2012 March 2012 June 2012
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Annex VII Transition Period Phase I

Actions Audit of assets and liabilities of las Audit of la infrastrucrure counties Vesting of some plant & equipment to county governments MoSPS and other MDAs ODPM/MoLG, LAs & Transition Authority Number and functionality of plant & equipment established Vesting of plant & equipment to county governments Number and functionality of plant & equipment established Clearing of outstanding financial obligations of LAs ODPM/MoLG, LAs, Transition Secretariat Debts and liabilities of each LA established Justification Actor(S) Outcome Time Frame May 2011-June 2012 July 2011- March 2012 July 2011- March 2012
Ministry of Public Works, LAs, ODPM/MoLG and Transition Secretariat MoPW, MDAs and Transition Secretariat
March 2011- December 2011 July 2011- March 2012 August 2011- June 2012 March 2012
Audit of central government infrastructure in counties Audit of central government staff in counties Audit of la staff in counties Secondment of central government staff to county governments Secondment of LA staff to county governments Civic education County budgets County profiles Analysis of functions Classification of urban areas All MDAs Transition Authority, MoLG MoPND &VISION 2030

Number of staff in each county by cadre, grades, gender, age & qualification Number of LA staff in each county by cadre, grades, gender, age & qualification Civic education on devolution started Initial County budgets agreed Profiles of counties produced and printed Sensitisation of the public on Acts related to county governments Agreement on initial budgets for counties ODPM/MoLG, MOJCA, and stakeholders ODPM/MoF, CRA, CIC & Transition Secretariat May 2011- Dec 2011 Sept. 2011- March 2012 Jan. 2012 Aug. 2012 Definition and plan for distribution of functions published & necessary Acts amended Gazettement of new cities, municipalities and towns Establishment of basic data and framework for data collection and analysis in counties Development of understanding & framework for devolving functions to counties by MDAs To re-establish cities, municipalities and towns
Annex VIII Transition Period Phase II

Actions Formation of county governments Justification Swearing in of Governor and Deputy Governor Swearing of County Assembly Appointment and swearing in of Speaker of County Assembly Appointment of Clerk of County Assembly Appointment, confirmation and swearing in of County Executive committee Establishment of county public service board Appointment of county public service staff Appointment of staff for County Assembly Capacity Building To develop capacity of county governments To transfer functions from national government to county governments Transfer of functions Actor(S) Presiding Judge of the County High Court Presiding Judge of the County High Court County Assembly & County Executive & Presiding Judge of the County High Court County Assembly & County Executive Governor & County Assembly county executive committee appointed and sworn in. County executive committee County assembly County Executive County Executive National government County governments Transition Authority National government ministries County governments Transition Authority County public service established County public service staff recruited County public service staff recruited Capacity of county governments developed. Functions transferred to county governments Nov. 2012 March 2013 September 2012 August 2012 August 2015 August 2012 August 2015 Outcome Governor and Deputy Governor sworn in County assembly sworn in Speaker appointed Time Frame Aug. 2012 Aug. 2012 Aug. 2012
Clerk of the National Assembly appointed
Aug. 2012 September 2012
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Draft Sessional Paper On Devolved in Kenya, 2011

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REPUBLIC OF KENYA

Office of the Deputy Prime Minister and Ministry of Local Government

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Chapter 2: The Promise of Developmental Devolved Government ........ 15

Chapter 3: Structures for Inclusiveness, Integrity and Effective Governance ................................................................................................. 21

Chapter 4: Intergovernmental Relations ................................................ 42

Chepter 5: Delivering County Public Services for Prosperity ................. 46

The Constitution is the expression of the will of the people

Chapter 6: Building an Effective County Public Service ...........................57

Annexes ..................................................................................................... 123

Chapter 7: An Effective County Public Finance Management System ... 69

Chapter 8: Strategic Public Communication and Civic Education ..........91

Chapter 9: Intervention and Suspension ................................................. 97

Chapter 11: Strategic Risk Management Framework .............................117

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Draft Sessional Paper on Devolved Government in Kenya, 2011

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Draft Sessional Paper on Devolved Government in Kenya, 2011

Context and Constitutional Foundations of Devolved Government in Kenya

The Centralized Colonial State

1.2.1 The Post-Independence Quasi-Federal System

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

1.2.2 Perpetuation of the Centralized State

1.2.3 The Problem of Centralization

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

1.3.2 The Theory of Devolution

The Constitution and Theory of Devolution

1.3.1 Concept of the Constitution

1.3.3 The Concept and Role of Shared Institutions

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Table 1.1: Shared Institutions in the Constitution of Kenya 2010

1.3.4 The Value Foundations of the Constitution

Article 215 Article 228 Article 229 Article 230

Public Service Commission

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Kenyas Unique Form of Devolution

1.4.1 Cooperative System of Devolved Government

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

1.4.2 Objects and Principles of Devolution in Kenya

1.4.3 The Architecture and Design of Devolution in Kenya

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

The Promise of Developmental Devolved Government

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

Building Blocks for Cooperative and Competitive Counties

Draft Sessional Paper on Devolved Government in Kenya, 2011

Developmental Devolved Government for Effective and Sustainable Counties

2.1.2 Paradigm Shift in County Public Service Delivery

2.1.1 Growing and Sustaining County Cooperative Competitiveness

2.1.3 Building and Maintaining Quality Places