Question 1

Introduction
Ladies and gentlemen, distinguished Governors' Summit participants and distinguished visitors, I
am honored to give a thorough examination of the legal concerns concerning devolution in the
Republic of Nchi Yetu. As members of "Ugatuzi na Uwazi," a Civil Society Group dedicated to
devolution, we have gathered here today to shed light on the enormous issues confronting our
sub-national units and to provide feasible alternatives to address the current situation.

Nchi Yetu, located in Sub-Saharan Africa, has a two-tiered governance system that includes a
national government and 47 sub-national divisions, each led by an elected Governor. The
urgency of this special conference, slated for June 20th, 2023, derives from a serious lack of cash
that has rendered the devolved entities inoperable. Nchi Yetu's Parliament's significant delay in
approving the Division of Revenue (DOR) Bill 2023 has resulted in a lengthy non-disbursement
of cash, depriving sub-national units of financial resources for a full quarter. As a result, the
proposed revenue-sharing formula devised by the Sub-National Allocation of Revenue Board
(SARAB), as well as the budgets of the individual sub-national entities, remain unapproved.

To make matters worse, the President of Nchi Yetu has flatly refused to grant further monies to
the sub-national units, resulting in a disastrous shutdown and the indefinite absence of over 400
thousand people. Furthermore, sub-national units are legally restricted from collecting their own
revenue and paying it into the designated Revenue Accounts, as required by law. The denial of
the Governors' request to use already received revenue for vital service providers by the
Controller of Budget has resulted in the collapse of healthcare systems, with patients losing their
lives and others forced to seek medical help from private facilities.

II. Delayed Disbursement of Funds and the Division of Revenue (DOR) Bill 2023
One of the key issues leading to the Republic of Nchi Yetu's financial difficulty is the delayed
disbursement of monies caused by the absence of the Division of Revenue (DOR) Bill 2023. The
Sub-National Allocation of Revenue Board (SARAB) uses the DOR Bill to determine the
allocation of cash to sub-national units and to construct the revenue-sharing formula. However,
the lengthy delay in enacting the DOR Bill in Nchi Yetu's Parliament has hampered timely
transfer of funding, affecting an entire financial quarter1.

The County Governments Act, No. 17 of 2012, which controls sub-national unit operations,
emphasizes the necessity of timely funding payments to ensure effective service delivery 2. The
delay in passing the DOR Bill impedes not only the approval of the revenue-sharing formula, but
also the approval of the different sub-national units' budgets, compounding the financial
situation3.
To solve this critical issue, the national government and Parliament must prioritize the approval
of the DOR Bill4. The timely distribution of funds is critical for subnational units to fulfill their
constitutional commitments and provide crucial services to their residents 5. Failure to expedite
the passing of the DOR Bill not only contradicts the ideas of devolution, but also jeopardizes
citizens' welfare and the successful operation of subnational institutions6.

III. President's Refusal to Allocate Additional Funds

Despite their poor financial predicament, the President of the Republic of Nchi Yetu has stated
his refusal to grant extra funding to the sub-national units. This President's approach raises issues
about the fulfillment of constitutional commitments to devolved units. According to the Kenyan
Constitution of 2010, the national government is responsible for ensuring appropriate funding to
support the functions and services of the sub-national units7. However, the President's failure to
grant more funding violates the ideas of devolution and jeopardizes the sub-national institutions'
ability to function effectively.

IV. Inability to Collect Own Revenue and Pay Service Providers

1
Constitution of Kenya 2010, Article 218(2)).
2
County Governments Act, No. 17 of 2012, Section 111)
3
Public Finance Management Act, No. 18 of 2012, Section 116
4
County Governments Act, No. 17 of 2012, Section 110
5
Constitution of Kenya 2010, Article 185
6
County Governments Act, No. 17 of 2012, Section 112
7
Constitution of Kenya 2010, Article 187(2)
The sub-national units in the Republic of Nchi Yetu are facing a critical challenge in collecting
their own revenue and utilizing it to pay essential service providers. The inability to carry out
this fundamental function is a violation of the County Governments Act, No. 17 of 2012, which
grants sub-national units the power to generate revenue and manage their financial8. However,
the Controller of Budget's refusal to allow the use of already collected own revenue for essential
service payments further exacerbates the crisis.

The Public Finance Management Act, No. 18 of 2012, provides the methods and guidelines for
revenue collection and spending management, with a focus on sub-national entities' autonomy in
managing their own revenue sources9. Failure to collect own income and pay service providers
has resulted in the collapse of sub-national health systems, with negative effects for citizens who
rely on these services.

V. Collapsed Health Systems and Citizens' Concerns

The collapse of health systems in the sub-national units of the Republic of Nchi Yetu has raised
grave concerns among citizens regarding the effectiveness of service delivery and the impact of
rampant corruption. The inability to provide essential healthcare services within the sub-national
units violates the constitutional right to access quality healthcare10. The dire situation has led to
patients dying in hospitals and forced others to seek medical attention in private facilities 11.

The County Governments Act, No. 17 of 2012, empowers sub-national units to manage
healthcare services within their jurisdictions12. However, the collapse of the health systems due
to mismanagement and corruption by the Governors has resulted in a failure to meet the
healthcare needs of the citizens13.

These concerns have sparked protests among citizens, expressing their dissatisfaction with
ineffective service delivery and rampant corruption. The grievances raised by the citizens

8
County Governments Act, No. 17 of 2012, Section 109
9
Public Finance Management Act, No. 18 of 2012, Section 132
10
Constitution of Kenya 2010, Article 43(1)(a)
11
Constitution of Kenya 2010, Article 43(2)(d)
12
County Governments Act, No. 17 of 2012, Section 30
13
Ibid
highlight the urgent need for accountability and transparency in the management of public
resources and the delivery of essential services.

VI. Governor Impeachment Proceedings

The scenario in the Republic of Nchi Yetu reveals a troubling state of affairs regarding the
conduct of several Governors. At least 12 out of the 47 Governors have been charged with
corruption, resulting in impeachment proceedings against them. The County Governments Act,
No. 17 of 2012, sets out the provisions for the impeachment of Governors in case of gross
violation of the Constitution or any other law14. The ongoing impeachment trials before the
respective Sub-National Legislative Assemblies and Senate indicate a commitment to address the
allegations of high-handedness, greed, and corruption leveled against the Governors.

The impeachment process is crucial in holding Governors accountable for their actions and
maintaining the integrity of the sub-national units. It ensures that individuals entrusted with
public office adhere to the principles of good governance, transparency, and accountability. The
impeachment proceedings also underline the significance of the County Assemblies Powers and
Privileges Act, No. 6 of 2017, which confers powers on the County Assemblies to impeach
Governors and promotes the oversight role of the assemblies15.

VII. Proposal: Invoking Article 1 of the Constitution

In the midst of the governance crisis and ineffective service delivery, there are calls from some
citizens to invoke Article 1 of the Constitution as a means to address the prevailing situation.
Article 1 of the Constitution of Kenya 2010 states that all sovereign power belongs to the people
and shall be exercised through the democratic structures established by the Constitution16. The
proposal to invoke this article is a reflection of the citizens' frustration with the governance
failures and their desire to assert their sovereignty.

However, it is essential to recognize that the Constitution provides mechanisms for addressing
such challenges through established democratic institutions and processes. The Transition to
Devolved Government Act, No. 7 of 2013, and the Intergovernmental Relations Act, No. 2 of

14
County Governments Act, No. 17 of 2012, Section 33
15
County Assemblies Powers and Privileges Act, No. 6 of 2017, Section 4
16
Constitution of Kenya 2010, Article 1(1)).
2012, are two key legislations that govern the devolution process and intergovernmental relations
in Kenya. These laws outline the mechanisms for resolving disputes, coordinating between
national and sub-national units, and ensuring the smooth functioning of devolved governance.

Conclusion

The situation in the Republic of Nchi Yetu demonstrates substantial issues in the devolution
system, such as delayed cash disbursement, the President's refusal to grant further funds,
collapsed health systems, and corruption claims against Governors. It demands immediate action
to address these concerns, maintain accountability, and assure successful service delivery to
citizens.
Bibliography

Constitution of Kenya 2010.

County Governments Act, No. 17 of 2012.

County Assemblies Powers and Privileges Act, No. 6 of 2017

Intergovernmental Relations Act, No. 2 of 2012

Public Finance Management Act, No. 18 of 2012

Transition to Devolved Government Act, No. 7 of 2013.