Unfinished business on transition poses risk to devolution implementation
It is now three years since the formation of county governments that was signified by swearing in of the Jubilee administration on March 4, 2013 that was later followed by swearing in of governors on March 27, 2013.
Kenyans had high expectations in terms of quick development as service delivery to people was brought closer home through devolution. Apart from political ideological differences and bickering among leaders, much has been done with the little available resources which have improved livelihoods.
On the other hand, significant ground has been covered in the implementation of devolution by the Transition Authority. The Transition Authority was created through an Act of Parliament to provide a framework for transition to devolved government pursuant to section 15 of the Sixth Schedule of the Constitution and for connected purposes in 2012.
However, given a period of four years to complete its work, the Transition Authority’s term came to an end on March 3, 2016 with much of the work not done. As at this time, the Authority had not completed its work and there are considerable risks which if left unchecked will undermine the remaining bit of transition activities.
The Transition Authority was charged with overseeing smooth transfer of functions especially those that were devolved from national to county governments.
Despite this, there is a lot of incomplete assignment that need to be looked into to ensure neither devolution nor service delivery is frustrated.
Despite efforts made by Transition Authority during its time in office to ensure devolved functions were transferred to county governments, there were certain drawbacks that hindered it from achieving this goal. With the Transition Authority no longer functioning, after the national Assembly declined to extend its term, there are fears that the national government could recentralize certain devolved functions.
This could go against the letter and spirit of the Constitution of Kenya 2010. For example, health, roads and agriculture sectors are some of the areas are said to have not received full support from the national government which has been alleged to be holding on to funds that belong to counties.
A report by Transition Authority paints a damning picture of national government’s failure to cooperate or undertake its constitutionally responsibilities which include incomplete asset audits, valuation and transfer or non-cooperation by ministries.
Again lack of national policies and attempt to claw back national functions and failure to update public human resource database, pending functions by state corporations, determine costing of county functions as well as inadequate capacity building of the counties, delays in setting up county pension schemes among other issues.
It is for these reasons that the Devolution Forum, a multi-sectoral alliance of like-minded networks, organizations and individuals united for promotion and protection of devolution and its implementation has come out demanding for explanation of what next after the Transition Authority tenure expired.
Wanjiru Gikonyo from Institute for Social Accountability says the failure of Transition Authority to complete its transitional activities has a direct bearing on the effectiveness of county governments in their service delivery mandate.
Gikonyo expresses fears that as Transition Authority tenure expired, there was a risk that pending activities will be ignored entirely. She notes lack of clarity over which institution will take up the pending functions.
“From Institute for Social Accountability, we note that whereas the Commission on the Implementation of the Constitution (CIC) has provided a detailed report on pending activities, there is presently no consensus on how these will be completed,” notes Gikonyo.
“The Budget Policy Statement 2016 has failed to allocate resources to pending activities which implies counties will bear the burden of an incomplete transition,” she explains.
According to Gikonyo, section 12 of the Intergovernmental Relations Act (IGRA) 2012 anticipates that the Intergovernmental Relations Technical Committee (IGRTC) is supposed to assume pending functions of the transition.
Gikonyo emphasizes the need for Intergovernmental Relations Technical Committee to sustain the momentum for implementation of devolution.
“As a Devolution Forum, we further call upon the chair of the Intergovernmental Relations Technical Committee to work with the Minister for Devolution to prepare regulations to provide a sound framework for completion of transition activities,” the Devolution Forum recommends.
Cornelius Oduor, CEO Centre for Democracy and Good Governance says section 29 of the Intergovernmental Relations Act makes provision for public participation in the transition process.
However, he notes, the provision has not been effected yet the Intergovernmental Relations Technical Committee is presently operating without transparency.
According to Oduor, the Devolution Forum team is not taking anything for granted. He urges chairperson Intergovernmental Relations Technical Committee to move with haste and put in place a robust mechanism for public participation and accountability to the people of Kenya.
Oduor was categorical that this can only be achieved if Intergovernmental Relations Technical Committee convenes an immediate stakeholder platform to agree on the mechanisms for next phase of implementation of devolution especially with the winding up of Commission for the Implementation of the Constitution and Transition Authority.
Again, he challenged the Cabinet Secretary for Devolution to fast track the completion of devolution policy civic education programme within a robust and participatory framework.
“Legislators should support completion of transition activities through requisite in the 201-2017 budget,” says Oduor. He notes: “The National Assembly should also ensure that 2016-2017 budget does not encroach county functional mandates as this may make it subject to legal challenge.”
According to Oduor: “It is imperative that these measures are put in place as a matter of urgency to avoid the foreseen confusion with attendant risk of failure of Kenya’s second attempt at having a devolved system of government.”
This time round, it is based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law as espoused in the Constitution of Kenya, 2010.