NAME: CECILIA KULOLA

REGISTRATION NUMBER: LLB/4023/23

COURSE TITLE: LAW OF DEVOLVED GOVERNANCE

COURSE CODE: FLB 213

COURSE INSTRUCTOR:[Link] KANGU

DATE:23RD JULY,2025
INTRODUCTION

Kenya adopted a devolved system of governance after the promulgation of the constitution of
Kenya 2010. Devolution is one of the major changes that the Constitution adopted by
Kenyans at the referendum held on 4th August 2010 and promulgated on 27th August 2010
has made to the arrangement of government in Kenya into two levels which include the
national and county governments. It is a unique and new experience to a majority of
Kenyans.1 Article 189 of the constitution states the respective functions and powers of
national and county governments.2 Each has distinct functions and powers as defined in the
Fourth Schedule of the Constitution. Also, article 6(1) provides for devolution and that the
governments at the national and county levels are distinct and interdependent.

PURPOSE OF DEVOLUTION IN KENYA

Devolution was introduced to achieve the following functions:

i) To promote a democratic and accountable exercise of power

ii) Also, to facilitate decentralisation of the state organs, their functions and services
from the capital of Kenya
iii) To enhance checks and balances and the separation of powers.

These objects have been catered for under article 174 of the Constitution of Kenya

SUPERVISION

Supervision has been defined to mean the act of regulating and monitoring a process, activity,
or task.3 It has further been defined in the South African case of Re Certification of the
Republic of South Africa to mean the intrusion of one level of government into the functions
of the other. 4 This supervision is divided into the following: regulation ,monitoring, support
and intervention. As much as the National government can supervise the work done by the
county government it s to be noted that the county government have their own autonomy.

REGULATION

1
Friedrich Ebert Stiftung, Popular version of County Governance System
2
Constitution of Kenya 2010,sec 189
3
Garner, Bryan A. and Henry Campbell Black. Black's Law Dictionary. 9th ed. West, 2009.

4
in Re: Certification of the Constitution of the Republic of South Africa, 1996, (1996) 10 BCLR 1252
(CC) (First Certification judgment) para 370
With regards to supervising the institutions of the county governments and their operations.
The following constitutional provisions expouse this:

Article 176 (2) of the Constitution provides that every county government shall decentralize
its functions and the provision of its services to the extent that it is efficient and practicable.

Article 184(4) further stipulates that the national legislation shall provide for the governance
and management of urban areas and cities .To ensure it has fulfilled this there was established
the Urban Areas and Cites Act5 which establishes the criteria for classification of areas as
urban areas and cities and further recognizes the need for public participation in the
management of urban areas.

The parliament also provides for regulations that govern how county governments perform
their roles.

Article 196(3) provides hat the parliament enacts legislation to deal with the
powers ,privileges and immunities of count assemblies ,their committees and members.
Under part 2 of the fourth schedule the roles of the county government are listed to include
agriculture, county health services, control of air pollution to mention just ,county transport to
mention just but a few.

In the case of Base Titanium Ltd v County Government of Mombasa and Another [2018]
eKLR was cited in support of the argument that the 1st appellant had constitutional authority
to impose charges for services that they provide and that these include transport services.

Moreover, the national government is to establish a supervisory regulatory framework

affecting the county finances and how they are managed. County governments are required to
operate financial management systems that comply with national regulations prescribed by
national legislation.6 Even though the county governments have financial autonomy
including the power to make their own budgets, it should be done within a regulatory
framework of national legislation.7Article 220(2)provides that the national legislation shall
prescribe the structure and development plans and budgets of the counties ,when they should
be tabled and consultations between the two levels of governments when preparing the plans
and budgets. To ensure that the resources and finances are used efficiently there is the
formulation of the County Integrated Development Plan which guides budgeting at the

5
Urban Areas and Cities Act No. 13 of 2011
6
Art 190(2). See also Chap 7 section 5.
7
Art 220(2).
county level. These plans are prepared in accordance with the County Government act. The
Public Finance Management Act is the one that should mainly guide the county government
when coming up with their budgets so that it can conform to what is provided for under
article 220(2)

MONITORING

It allows the national government to overstep in the territorial function of the county
governments. It has been realized in the following :the county governments have a duty to
report to report to the national government periodically. 8 This has been reiterated by article
92(3) of the Public Finance Management Act . The national government can further request
for information from specific county governments .9 Moreover, national government may
conduct inquiries and investigations and collect information about the county governments.
This has been catered for under article 190,192 and 225 of the Constitution.. Section 121(1)
of the County Governments Act, for instance, empowers the ministry or government
department responsible for matters relating to intergovernmental relations to conduct
investigations, inquiries, research, and collect information regarding the performance of the
county governments.

According to Steytler and De Visser the goal of monitoring is to ensure that failure to comply
by the county government is reported to the national government and also to know the
measures required for intervention.

SUPPORT TO COUNTY GOVERNMENTS

The Constitution of Kenya places some obligations on the national government to support the
sub-national governments(county governments) in carrying out their functions. Article 190(1)
of the Constitution mandates the parliament to enact legislation to make sure that the county
governments have adequate support to help them perform their functions. Additionally part 4
of the sixth schedule provides that the parliament to enact legislation that supports the county
governments. 10 To further elaborate on supervision we will be guided by the fourth schedule
of the Constitution. For example item 28 of part 1 of the 4th schedule stipulates that the
national government is to come up with health policy . On the other hand, item 2 on the 2nd
part of the 4th schedule stipulates the function of the county to include county health services.

8
Arts 190, 192 and 225 envisage monitoring to inform the need to intervene in any of the ways provided under
these provisions.
9
The appropriate steps envisaged by Art190(4) may include requesting for information.
10
Sixth schedule , part 4 (15)2(iii)
These services are to be guided by the health policy set in place by the national government.
To strengthen the aforementioned example the National government initially also partnered
with international organization such a USAID to help the health sector especially the county
hospitals to ensure that they receive contraceptives.

The National Government shows supervision in the following:

LEGISLATIVE OVERSIGHT

The national government exercises oversight over county governments through the Senate.
The Senate represents the counties and serves to protect their interests and their governments.
This is provided for under article 96 subsection 3 which states that the senate determines the
allocation of national revenue among counties as provided in article 217 and exercises
oversight over national revenue allocated to the county governments.

INTERGOVERMENTAL RELATIONS

The constitution recognizes the need for both levels of government to cooperate and work
together. Article 189 states the governments at the national and county level must conduct
their mutual relations based on consultation and cooperation. Furthermore, it states that the
government can liaise with government at the other level for the purpose of exchanging
information, coordinating policies and administration and enhancing capacity.

CONDITIONAL GRANTS

The revenue act provides for division of revenue and also the county allocation of Revenue
Act, the national government can issue conditional grants to the county governments which
may come with specific conditions that impact county autonomy. Article 212 of the
constitution states that a county government may borrow only if the national government
guarantees the loan and with the approval of the county government’s assembly.

Financial oversight

The national government through the office of the Controller of Budget has the power to
oversee county budget implementation. This has been stated that in article 228 subsection 4
of the Constitution. Also, the auditor general can audit and report on the accounts of both
levels of government11

INTERVENTION OF COUNTY GOVERNMENT BY NATIONAL GOVERNMENT

11
Article 229 of the Constitution of Kenya,2010
 Article 186 states the respective functions and powers of national and county
governments. The functions and powers of the national government and the county
governments are as set out in the Fourth Schedule. A function not assigned by this
constitution or nationalisation to a county is a function or power of the national government.
Anything aside this article is stated to be [Link] in the case of Re Matter of
the Interim Independent Electoral Commission, the appellants have argued that the concept of
pure separation of power is not practically achievable.12

Intervention is seen in the constitution of Kenya and is deeply rooted under artcles
190,192 and 225 .Article 190 (3a &b)of the constitution provides for ordinary intervention
that arises if a county government is unable to perform its functions and does not operate a
financial management system that complies with the requirements prescribed by national
[Link] inability to perform was interpreted in the case of Mnquma where it was held
that this phrase should be interpreted to mean both inability to perform and failure to perform
the functions. Article 190(4) provides that the legislation may authorise national government
‘if necessary, to assume responsibility for the relevant functions’. 13 For the legislation to
work it is required under subsection 514 that a notice is to be given to a county government of
any measure and also provide for a process by which the Senate may bring the intervention
by the national government to an end.

Intervention by suspension of county governments has been provided for under article
192 of the constitution . It further elaborates that suspension can only occur when there is an
emergency arising out of an internal conflict or war or in any other exceptional
circumstances. Article 200(2)(e), which requires Parliament to enact legislation providing for
‘the suspension of assemblies and executive committees’, implies that the suspension can
lawfully be directed at either the county assembly or the county executive. Article 58
provides that a state of emergency may only be declared if the state is threatened with war. In
relation to article 192 , it limits the war to being internal .

To avoid abuse of the exceptional circumstances should only be interpreted using the
ejusdem generis rule.15This is to mean that the national government would be required to
prove the intensity of the circumstances if it id to be compared to internal conflict. Article

12
Re Matter of the Interim Independent Electoral Commission, [2011] eKLR.
13
Nogcantsi v Mnquma Local Municipality N.O&another (PA7/2015)ZALAC 111
14
Article 190 of the Constitution of Kenya
15
John Kangu Mutakha,`An Interpretation Of The Constitutional Framework For Devolution In Kenya
192(2) also states that the intervention may be done by the Independent Commission of
Inquiry.

Article 225(3) provides for what should be considered as an indirect supervisory intervention
by way of stoppage of transfer of funds to county government. Under article 225(3) the
Cabinet Secretary responsible for finance can stop the transfer of funds n the following ways:
only for a serious material breach or persistent material breaches, a decision to stop the funds
In the case of Council of Governors v Senate there was an attempt by the Senate Public
Accounts Committee to stop funds to Kisumu, Bomet, Kiambu and Murang’a as their
governors had refused to respond to audit questions.16 This was authorized by article 225(3)
of the Constitution and section 96 of the Public Finance Management Act of [Link] high
court declared the resolution unlawful ruling that refusal to attend summons did not constitute
a ‘serious material breach’

CHECKS AND BALANCES IMPOSED BY THE CONSTITUTION

In the Federalist paper number 51, James Madison explains how the constitution’s
structure checked the powers of the elected branches and protected against possible abuses by
the national government.17 Each branch of government was given the power to check the two
other branches. In this case the constitution has in place several checks and balances to
prevent misuse of power by the national government in its supervision and intervention with
county [Link]. Mutakha Kangu in his book argues that checks and balances are
important in that it prevent abuse. He further states that intervention should be interpreted in a
limited manner to restrict the national government and allow the decentralization of power
through devolution to take charge.18 This is made possible in the following ways:

PROCEDURAL SAFEGUARDS IN INTERVENTION POWERS

With regards to check and balance on intervention, there should be a notice being served to
the county government. It is provided for under article 121(5) that the Cabinet Secretary shall
give notice to the county government of the nature of intervention, the measures to be taken
and the period required to rectify the problem. Additionally, article 192(5) of the constitution
requires that the suspension of a county government should not be indefinite and be
terminated within 90 days.

16
Council of Governors &5 others v Senate &another [2019]KECA 704 (KLR)
17
James Madison ,Federalist no.51:`The Structure Of Government Must Furnish The Proper Checks And
Balances between different Departments’ by James Madison
18
John Kangu Mutakha,`An Interpretation Of The Constitutional Framework For Devolution In Kenya,Chap 16
Oversight by the Controller of Budget : article 225 provides that the stoppage of funds must
be based on recommendations from an independent office. Moreover , the parliament’s
decision to stop the funds shall not be for more than sixty days.

LEGISLATIVE SAFEGUARDS

Any intervention by the national government requires the parliament’s approval,

providing a legislative check over the executive. Additionally, article 190(5) of the
Constitution provides that legislation shall require that notice is given to the county
government of any measures that the national government intends to take.

Also the national government is only permitted to take measures that are necessary
and will assist the county government to resume full responsibility for its functions.

JUDICIAL OVERSIGHT

County governments have the right to seek redress in courts if the counties think and
prove that the national government intervened and overstepped in its mandate.

PUBLIC PARTICIPATION

This is a constitutional principle under article 10 subsection 2a. Also, article 174(c)
states enhancement of participation of the people in the exercise of the powers of the state
and in matters affecting them. This ensures that local communities have a say in the conduct
of county government affairs thus limiting intervention by national government.

SENATE’S PROTECTIVE ROLE

The senate has to approve any interventions and can investigate complaints against
county governments. This has been catered by article 95 of the Constitution which states that
senate acts as a buffer between the two levels of government. Furthermore,article 190(5d)
provides for a process by which the Senate may bring the intervention by the national
government to an end.

INDEPENDENT OFFICES

This has been catered for under article 248 of the constitution. These offices such as
the Commission on Revenue Allocation and the Public Service Commission check and
balance the functions of the national government to prevent them from doing other work that
is not theirs.
LESSONS TANZANIA CAN LEARN FROM KENYA

i. Formulate policies that deal with intervention of powers and coordination

between the national government and county government
ii. I would also advise Tanzania to create clear procedures that deal with national
government intervention and also how to strengthen checks and balances to
avoid abuse of power.
iii. The government of Tanzania to create frameworks for the county government
to exercise their autonomy such as the Kenyan County Government Act.
iv. Tanzania can also adopt provisions that provide for immunity ,powers and
privileges that are to the benefit of the county assembly which are to be
regulated by a national legislation. This is as provided for under section 29 of
the National Assembly Act

I would also inform Tanzania that even though Kenya has adopted devolution, it has its
own downs which include inter alia:

i) Devolution is expensive -introduction of more seats in devolution which

includes more 67 senators ,47 governors and 2526 Members of County Assembly
meant that there is an increased wage budget. The increased number of roles is
died to the simultaneous need for devolving the administrative and political
structures.
ii) Mismanagement of funds allocated to county governments

This has occurred severally and furthermore they are not able to account for the allocated
money. Even though article 201 of the Constitution of Kenya espouses various principles of
financial management these principles are yet to be fully implemented and realized. 19

CONCLUSION

In conclusion ,devolution has more advantages than disadvantages and would urge Tanzania
to adopt it and make it much better in terms of the implementation process . Subsequently,
they should have a more elaborate system for checks and balances to prevent abuse of power
and make sure the two levels of government do not overlap while carrying out their functions.

19
Samuel Ngigi, Devolution In Kenya