DEVOLUTION
1. Introduction
Devolution in Kenya is traced back in 1963 when the country got its independence however; this
was short-lived due to lack of substantive founding in the philosophies of either KADU or the
KANU party which was responsible of implementing it.
In 2010, Kenyans enacted a new constitution, which established a system of devolved
government wherein two of the three arms of the government namely, the Legislature and the
Executive are devolved to the forty-seven (47) political and administrative county government.
The operation of the county governments started soon after the march 2013 election, which
included the election of county governors, deputy governors and members of the county
assembly (MCA)
1.1. Objects of devolution
The primary objective of decentralization is to devolve power, resources and representation
down to the local level. Article 174 of the constitution sets out the objects of the devolution of
county government as inter alia: -
a) to promote democratic and accountable exercise of power;
b) to foster national unity by recognizing diversity;
c) to give powers of self-governance to the people and enhance the participation of the
people in the exercise of the powers of the State and in making decisions affecting
them;
d) to recognize the right of communities to manage their own affairs and to further their
development;
e) to protect and promote the interests and rights of minorities and marginalized
communities;
f) to promote social and economic development and the provision of proximate, easily
accessible services throughout Kenya;
g) to ensure equitable sharing of national and local resources throughout Kenya;
h) to facilitate the decentralization of State organs, their functions and services, from the
capital of Kenya; and
1
i) to enhance checks and balances and the separation of powers.
1.2. Principles of devolved government
Article 175 of the constitution calls upon the established county governments to reflect the
following principles; -
a) county governments shall be based on democratic principles and the separation of
powers;
b) county governments shall have reliable sources of revenue to enable them to govern
and deliver services effectively; and
c) no more than two-thirds of the members of representative bodies in each county
government shall be of the same gender
2. County governments
Article 176 of the constitution establishes the county governments in each of the forty-seven
counties consisting of county executive and county assembly.
2.1. County executive
The county governor and the deputy county governor are the chief executive and deputy chief
executive of the county, respectively.1 The governor s elected jointly with the deputy governor
by the voters registered in the county. 2 The deputy governor acts as the governor in the absence
of the governor which can ether be temporarily when the governor is away 3 or permanently as a
result of either death, as a result of impeachment or any other reason contemplated in article 182
of the constitution (vacancy n the office of county governor)
2.1.1. County executive committee
The executive authority of the county is vested in and exercised by the county executive
committee. Article 179 (1) provides that the county executive committee shall be comprised of: -
a) the county governor and the deputy county governor; and
1
Article 179 (4) of the constitution
2
Article 180 of the constitution
3
Article 179 (5) of the constitution
2
b) members appointed by the county governor, with the approval of the assembly, from
among persons who are not members of the assembly.
Article 183 (1) of the constitution provides for the functions of the executive committee to
include:-
a) implementation of county legislation;
b) implement, within the county, national legislation to the extent that the legislation so
requires;
c) manage and coordinate the functions of the county administration and its departments; an
d) perform any other functions conferred on it by this Constitution or national legislation.
Further, the county executive committee is empowered to prepare proposed legislation for
consideration by the county assembly.4 As part of oversight by the national assembly the county
executive committee is required to provide the county assembly with full and regular reports on
matters relating to the county.5
The Members of a county executive committee are accountable to the county governor for the
performance of their functions and exercise of their powers. 6 Further their term is tied to the
governor and in the event the governor is not re-elected they cease to hold office term ceases. 7
2.2. County assembly
Article 177 of the constitution provides for the establishment of the county assembly as part of
the county government. The county assembly consist of; -
a) members elected by the registered voters of the wards,
b) persons nominated to ensure that no more than two-thirds of the membership of the
assembly are of the same gender;
c) persons nominated to represent members of marginalized groups, including persons with
disabilities and the youth,
4
Article 183 (2) of the constitution
5
Article 183 (3) of the constitution
6
Article 179 (6) of the constitution
7
Article 179 (7) of the constitution
3
d) the Speaker, who is an ex officio member
2.2.1. Authority of county assemblies
Article 185 (1) of the constitution provides that the legislative authority of a county is vested in,
and exercised by, its county assembly. In effect, the county assembly is empowered make any
laws that are necessary for, or incidental to, the effective performance of the functions and
exercise of the powers of the county government.8
Apart from legislating, the county assembly, while respecting the principle of the separation of
powers, is also mandated to exercise oversight over the county executive committee and any
other county executive organs.9 Other functions include receiving and approving plans and
policies for; the management and exploitation of the county’s resources; and the development
and management of its infrastructure and institutions.10
3. Relationship between Devolved Government and National Government
In realisation of the existence of the two levels of government (the national and the county
government) and in an attempt to ensure cordial relationship between the two levels of
government, part 3 of the constitution clearly sets out each of the government functions and how
power can be transferred between the two.
3.1. Respective functions and powers of national and county governments
The Fourth Schedule of the constitution sets out the functions and powers of the national
government and the county government respectively. 11It further provides that where a function or
power is conferred on more than one level of government such a function or power will be
exercised concurrently within the jurisdiction of each of those levels of government. 12 In the
event a function or power not assigned by this Constitution or national legislation to a county,
the presumption is that such a function or power vests in the national government.13
8
Article 185 (2) of the constitution
9
Article 185 (3) of the constitution
10
Article 185 (4) of the constitution
11
Article 186 (1) of the constitution
12
Article 186 (2) of the constitution
13
Article 186 (3) of the constitution
4
3.2. Transfer of functions and powers between levels of government.
Article 187 (1) of the constitution empowers the two levels of the government to transfer power
or its function to the other through an agreement. The constitution further sets out the conditions
that must be observed before such a function or power is transferred. The conditions are: -
a) the function or power would be more effectively performed or exercised by the receiving
government; and
b) the transfer of the function or power is not prohibited by the legislation under which it is
to be performed or exercised.
In line with the principle that resources follow function, arrangements must be put in place to
ensure that the necessary resources necessary for the performance of the function or the exercise
of the power are transferred to the recipient of the powers or function.14
Once such a transfer of power or function has been transferred, the constitutional responsibility
for the performance of the function or exercise of the power remains with the government to
which it is was originally assigned by the Fourth Schedule.15
In Okiya Omtatah Okoiti v Nairobi Metropolitan Service & 3 others; Mohamed Abdala Badi &
9 others (Interested Parties)16 the sitting Governor of Nairobi who together with the Devolution
Cabinet Secretary, Eugene Wamalwa signed the Deed of Transfer of functions from the Nairobi
City County Government to the National Government at State House Nairobi. The high court
held that since the County Assembly was not involved, the transaction amounted to breach of the
Constitution amounting to an illegality. The declaration of illegality was suspended for a period
period of 90 days to allow the parties to regularize their actions.
3.3. Cooperation between national and county governments
Article 189 (1) of the constitution sets out the principles of co-operation between the national
and the county government by requiring them to: -
14
Article 187 (2) of the constitution
15
Article 187 (3) of the constitution
16
[2020] eKLR
5
a) perform their functions, and exercise their 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;
b) assist, support and consult and, as appropriate, implement the legislation of the other
level of government; and
c) liaise with government at the other level for the purpose of exchanging information,
coordinating policies and administration and enhancing capacity.
In furtherance of cooperation both governments are empowered to set up joint committees and
joint authorities for purposes of performance of functions and exercise of powers.17
3.4. Support for county governments
Article 190 (1) of the constitution calls upon parliament to come up with legislations to ensure
that county governments have adequate support to enable them to perform their functions.
Parliament is further called upon to provide intervention on behalf of the national government
vide legislation where the county government: -
a) is unable to perform its functions; or
b) does not operate a financial management system that complies with the requirements
prescribed by national legislation.
3.5. Dispute resolution
In the event of dispute between the two levels of the government, the constitution proposes the
exercise of reasonable effort aimed at settling the dispute. It specifically calls for utilization of
alternative dispute resolution mechanism including negotiation, mediation and arbitration. 18
3.6. Conflict or laws
Article 191 (1) of the constitution contemplates a scenario where there is conflict between the
national and county legislations in matters falling within the concurrent jurisdiction of both
17
Article 189 (2) of the constitution
18
Article 189 (3) of the constitution
6
levels of government. It provides that in such a scenario, the national legislation will prevail over
the county legislation under the following scenarios: -
a) If the national legislation applies uniformly throughout Kenya and: -
the national legislation provides for a matter that cannot be regulated effectively by
legislation enacted by the individual counties; or
the national legislation provides for a matter that, to be dealt with effectively,
requires uniformity across the nation, and the national legislation provides that
uniformity by establishing—
norms and standards; or
national policies; or
the national legislation is necessary for;
the maintenance of national security;
the maintenance of economic unity;
the protection of the common market in respect of the mobility of
goods, services, capital and labour;
the promotion of economic activities across county boundaries;
the promotion of equal opportunity or equal access to government
services; or
the protection of the environment
b) If the national legislation is aimed at preventing unreasonable action by a county that: -
is prejudicial to the economic, health or security interests of Kenya or another
county; or
impedes the implementation of national economic policy
In the event a dispute arising from conflict of laws is placed before the court, the court is called
upon to apply a reasonable interpretation that avoids further conflict. 19 Where the court comes up
to a finding that a provision of legislation of one level of government prevails over a provision of
legislation of another level of government, the finding does not invalidate the other provision,
rather it renders the provision inoperative to the extent of the inconsistency.20
19
Article 191 (5) of the constitution
20
Article 191 (6) of the constitution
7
An analysis of this provision was considered by the court in Africa Rafiki Ltd & 2 others v
Nairobi City County Government & 3 others [2017] eKLR
3.7. Suspension of county government
Article 192 (1) of the constitution empowers the President to suspend a county government in the
event the following circumstances occur: -
a) In an emergency arising out of internal conflict or war; or
b) in any other exceptional circumstances.
In the event the suspension is as a result of exceptional circumstances an independent
commission of inquiry must first investigate the allegations against the county government. The
suspension will only be effected once the President is satisfied that the allegations are justified
and the Senate has authorised the suspension.21 The said suspension shall not extend beyond a
period of ninety days.22 The senate may however terminate the suspension at any time before the
expiry of the ninety days. An election of the relevant county assembly will be held once the
ninety days have lapsed.23
BIBLIOGRAPHY
Case laws
21
Article 192 (2) of the constitution
22
Article 192 (5) of the constitution
23
Article 192 (6) of the constitution
8
Africa Rafiki Ltd & 2 others v Nairobi City County Government & 3 others [2017] eKLR
Okiya Omtatah Okoiti v Nairobi Metropolitan Service & 3 others; Mohamed Abdala Badi & 9
others (Interested Parties) [2020] eKLR
Articles
Samuel Ngigi, Devolution in Kenya: The Good, the Bad and the Ugly; Public Policy and
Administration Research ISSN 2224-5731(Paper) ISSN 2225-0972(Online)