Over 500 functions are set to be transferred from the national government to the 47 county governments following a Gazette notice published by the Inter-Governmental Relations Technical Committee (IGRTC).

Last year, IGRTC said that the complete transfer of functions to the devolved units in line with the constitution and related legal frameworks has never been actualised.

The committee noted the duplication in the performance of functions, resource gaps in the transferred functions, and new and old legislation that inhibit full implementation of devolution and the pending transfer of some devolved functions.

“The two levels of government shall consult and cooperate in the process of the transfer of resources to support the implementation of the functions. In the performance of their functions, the two levels of government shall be guided by the national values and principles under Articles 10, 175, 189 and 232,” The Special Gazette Notice Vol. CXXVI—No. 219 dated December 16, 2024 reads.

Lack of goodwill

IGRTC chairman Kithinji Kiragu advised: “County governments shall, in the implementation of the functions specified in paragraphs 1 to 13 of Part B of the Fourth Schedule to the Constitution, ensure and coordinate the participation of communities and locations in governance at the local level and assist communities and locations to develop the administrative capacity for the effective participation in governance at the local level.”

Earlier this month, a group of civil societies had expressed their concern over lack of goodwill from the national government to have the functions fully domiciled in the counties.

Under the umbrella of Kenya Devolution Civil Society Organisations Working Group (KDCSOWG), they had accused the Kenya Kwanza government of sitting on the recommendations of IGRTC on the transfer of the functions for over one year.

The devolution working group stated that IGRTC led the technical process of unbundling the functions from the national government and completed the exercise in November last year before publishing the information in a special Gazette notice No 251.

Pending functions

KDCSOWG said that the Gazette notice would later be recalled through another Gazette notice number 257 on December 8th, 2023, without any explanation.

“IGRTC jointly with the State Department for Devolution, led a further technical consultation process that involved various task teams and culminated in the drafting of legal notices that clarified all the functions assigned to county governments under the full schedule of constitution to facilitate the gazettement of the transfer of the pending functions. The process reviewed and proposed amendments to 94 existing legislation across various sectors and all these were consolidated into an omnibus bill. This document was submitted to the Office of the Attorney General in July 2024 and has since not been published,” Kenya Human Rights Commission Deputy Executive Director Cornelius Oduor said.

On Monday, during the County Governments Coordinating Summit at State House Nairobi President William Ruto who remained evasive over the issue since assuming office, bowed to pressure and ordered the remaining functions to be transferred to the counties.

However, Ruto said the money to fund the functions would start to be disbursed to counties in July of next year when the new financial year begins.

“I now direct the committee to take the next step of systematically identifying and transferring the requisite budgetary and other resources tied to these functions in the next fiscal year,” the President said.

Attorney General Dorcas Oduor will now be required to issue a Gazette notice to enable Parliament to pass necessary bills to facilitate the transfer process.

The transfer of the functions could further affect operations at the counties which have been cash-strapped for the better part of this financial year.

Shareable revenue

The devolution-working group had estimated that out of the Sh380 billion shareable revenue for counties in this financial year, the national government was withholding three quarters (Sh270 billion) of that amount because it was still undertaking functions meant for counties.

Ruto admitted that constraints within the national fiscal framework limited the national government’s ability to fully disburse the shareable revenue to counties.

Functions that IGRTC has delineated include services in the trade, firefighting services and disaster management, county health services, county public works and services, county transport, natural resources and environmental conservation, agriculture, animal control and welfare sectors.

The counties will also be in charge of the control of drugs and pornography, county planning and development including land survey and mapping, boundaries and fencing, cultural activities, public entertainment and public amenities, pre-primary education, village polytechnics, home craft centres and childcare facilities.

Notably, the IGRTC gave both levels of government similar roles in the development and management of public buildings and other public works.

In clear duplication of functions, the national government and the counties will be required to provide technical consultancy services in architecture, quantity surveying, structural engineering, civil engineering, electrical and electronics engineering, land surveying, fire protection installations and assist each other in the procurement of technical services for public buildings and other public works.