The three-day ninth National Devolution Conference kicked off yesterday in Homa Bay under the theme: “For the People, For Prosperity: Devolution as a Catalyst for Equity, Inclusion, and Social Justice.”

While key gains have been made since the advent of devolution, it is unacceptable 12 years after ushering in devolved system of governance, significant devolved functions and their attendant resource both financial and human are still unconstitutionally held by National Government. This is gross violation of the Constitutional set timeline to implement full devolution. There has been significant reluctance by National Executive with tacit support by the National assembly on the transfer of the remaining functions. Troublingly there has been concerted attempts at the reversals of already partially transferred functions.

The constitutional functions assignment and transfer together with resources is one of the most critical aspects of Kenya’s devolved governance structure. It is the core promise of the 2010 Constitution. Even though the same is constitutionally provided for, there are still challenges that are being experienced in the transfer of functions and the role that is played by each level of government.

The Supreme Court of Kenya’s Legal Opinion of 2013 on the Division of Revenue and the High Court of Kenya’s decision on Constituencies Development Funds of 2015 reasserted and affirmed the constitutional autonomy and competence of the county governments to execute and oversee all devolved functions and service delivery in their areas of jurisdiction.

Transfer of functions

At this critical one decade after devolution rollout, a more deliberate unbundling and transfer of remaining functions should be hastened. Comprehensive assessment, assignment and publish register of assets and liabilities carried over from the former local authorities should be concluded. Undertake comprehensive transfer of pensions, benefits and records of all personnel who have transited from the national to the county governments.

There has to be increased deliberate firm political decisions to align, restructure and reorder the national government ministries, departments and agencies with the principles and objects of devolution should be sustained. Concerted effort should be undertaken by the two levels of government to ensure public engagement through effective civic education. Retrogressive laws and policies aimed at claw backs or to conveniently overreach the authority of the national government through parallel structures should be resisted and rejected. Undertaking nationwide, comprehensive and effective civic education on devolution is absolutely important

In November 2023, President William Ruto’s promise that the national government will in the next 60 days (already expired) transfer all devolved functions currently being held and undertaken unconstitutionally by national government ministries and departments. This promise remain futile. Deeds speak better than words. The national government has successfully, through the National Assembly, pushed legislative and administrative processes that subvert constitutionally devolved functions.

The national government, while free to infiltrate its policies at the county levels, it must do so through the structures recognized under the Constitution and not run parallel or duplicate system. The law is clear that the national government may channel grants, whether conditional or unconditional, to the county governments as additional revenue within the meaning of Article 202 and not any other entity which performs the functions allocated to the county by the Constitution. The national government cannot purport to channel grants to an entity whose intended projects effectively undermine the role of the government at the county level.

Devolved functions

The Inter-Governmental Technical Relations Committee (IGTRC) has stated that devolved functions and assets valued at more than Sh400 billion are yet to be transferred to county governments. A report by IGRTC) shows that 12 years after devolution, there are significant devolved functions that are still being undertaken by national ministries, departments and agencies (MDAs) including the public sector state owned enterprises.

According to IGTRC report, most of the national Ministries still unconstitutionally holding the largest elements of devolved functions include agriculture, health, water, energy, transport and roads, education, lands, trade, tourism and wildlife, environment, and housing and urban development. The IGTRC further notes that National Government administration structure is yet to fully be reformed and restructured to accord with and respect devolved of government. This fundamentally undermine devolution and create unnecessary costly parallel governance structures in the counties.

The 9th National Devolution Conference should agree on how recommendations by the IGTRC on the exclusive and concurrent functions should be fully and expeditiously be implemented.  There are few exclusive functions that are yet to be operationalized across all counties. The major difficulty concerning exclusive functions is that the national government is still performing some of these functions or certain aspects of them, despite the functions having been transferred to the county governments.

There are significant functional overlaps and duplications have been noted. These overlaps are of great concerns as they annually cost more than Sh500 billion and keep causing a huge economic and financial risks to the country. The two levels of government have not always adhered to their respective roles and levels of responsibility regarding the functions that they have been assigned to counties. Their planning and budgeting still capture functions that are legally outside their jurisdictions.

The functions of the state corporations largely remain unbundled to date, a process which is a necessary precursor to transferring any component of their functions that should be performed by county governments. Annually state corporations have been receiving budgetary allocations averaging Sh500 billion. Yet they are performing duplicated functions. The state corporations must be rationalized, reduced and all devolved functions they are performing be transferred to County governments

The principle of finance follows functions must be fully implemented and adhered to faithfully. Effective devolved governance units must of necessity have a broader mandates and implicit expectations to deliver functions at local level. By being closer to the people, they receive more demands than what the statutes allocate them. There is need for financial allocations to functions to take cognizance of this fact. The devolved units provide services where there was none and they perform beyond what the national government used to do. The end goal is to apply available resources to reach more people. It is crucial that accountability and participation in the devolved units is strengthened and robustly enforced.

Skewed revenue

The Devolution Conference must resolve the critical issues of delayed disbursements and skewed revenue share. Further the National Treasury must be fully reformed to serve two levels of governments independently. The National government budget and fiscal matters should be performed by independent office separate from the role of the National Treasury. It is very important that County governments have a voice on the national table of economic, fiscal and taxation policy decision making as those decisions have direct implications to the devolved units.

In conclusion, the implementation of the system of devolved government is largely on course. Nonetheless, there is need to urgently expedite overhaul, and  repeal as per constitutional requirements of the old order  existing policies, legislation and institutional frameworks to ensure that they facilitate improved  devolved governance and service delivery which can only be attained if the respective levels of government adequately carry out their responsibilities as spelt out in the Constitution and the law.

As a country, devolution is the most significant political undertaking in post-independence. Devolution is today the anchor of social and political stability of the country. The 2010 Constitution heralded a new era of more open and inclusive governance best epitomized by devolution, a system that is significantly bridging development gaps between regions, bringing services delivery services closer to the people, and empowering and creating opportunities to local communities, and ensuring economy is growing from all corners of the country.

Kenya is at a great moment in its history with corresponding risk for failure. People of Kenya must not allow a constitutional democratic recession. They must guard against entrenching old ways under the new systems. They must not breed apathy by substantiating apprehensions that the ambitions of the political leadership are not aligned to the needs of the people they serve. Kenyans must stay committed to the Constitution, learn lessons and make their common devolution journey worthwhile.

Counties should conduct comprehensive, transparent audits of County assets, including land and properties and establish digitized open registries for proper planning and future utility. They should also conduct detailed county-based human resource assessment to harmonize personnel with needs, skills and reduce bloated unsustainable workforce and wages. Each county government should establish an effective and efficient independent County Government Accountability Office to enforce stringent measures of performance, accountability and service delivery.  We need a fully funded very structured intensive civic education on the Constitution and devolution.

Devolution is making the Country fire with all the engines. This is national dialogue on social and economic rights, quality public and social services, local economies and production, jobs and incomes, unleashing people’s potential and creativity, dignity and human freedoms.

This Report is prepared by the International Center for Policy and Conflict, ICPC, Nairobi Based regional think tank advancing the Human Security on freedom from Want, freedom from Fear and freedom to live in Dignity