How National and County
Governments will operate
By Julius M. Malombe
The National Government is, among other functions, charged with the responsibility for national policy, national standards, regulation, national public works, national statistics, macroeconomic management, foreign affairs, defence and natural re-sources (Fourth Schedule)
The National Government is also re-spon-sible for trunk road infrastructure, referral hospitals, national public works, railways, pipelines, telecommunications (including radio and television broad-casting), space travel, primary, secondary and tertiary education etc.
However there’s a notable major policy shift where critical functions (and infrastructural services) which were previously under the central government are assigned to county governments under the new Constitution. These include county health facilities and pharmacies; am-bu-lance services, promotion of primary health care, cemeteries, funeral parlours and crimatoria, refuse removal, refuse dumps and solid waste disposal water and sanitation services, storm water man-agement systems in built-up-areas, county transport including: county roads, street lighting, public road transport, ferries and harbours; housing de-vel-opment, electricity and gas re-ticu-lation and energy regulation etc
Other county functions include: Ag-ri-cul-ture: including crop and animal husbandry, veterinary services, livestock sale yards, county abattoirs, plant and animal disease control, and fisheries;
Implementation of forestry, soil and water conservation policies;
Trade development and regulation: in-cluding markets, trade licences (ex-cluding regulation of professions), fair trading practices, local tourism, and cooperative societies, County planning and development, cultural activities, public entertainment and public amenities – including libraries, museums, sports and cultural activities;
Fire fighting services and disaster man-agement etc.
Counties are Preprimary education, village polytechnics, homecraft centres and childcare facilities;
County Finance Sources:
The financing of county governments is to be from the following sources:
(a) County own revenues (property taxes, entertainment taxes, any other tax they are authorized to impose by an Act of Parliament and fees and charges for services) - Article 209(3)&(4);
(b) Loans (borrowing to be approved by the county assembly and guaranteed the National Government) – Article 212 & Article 213;
(c) Intergovernmental transfers from the national government to county gov-ernments including: i) conditional grants - Article 202 (2); ii) unconditional grants - Article 202 (2); iii) moneys from the equitable shares of revenues - Article 203 (2); and iv) the Equalization Fund (Article 204);
(d) Donor Grants (from bilateral, mul-ti-lat-eral, corporate, foundations, individuals etc).
Proviso for the Equitable sharing of revenue raised nationally Between the National and County Governments.
The said intergovernmental transfers are to be shared equitably in line with the 11 criteria set out under Article 203 (1) -
The Senate (initially for the first two 3-years term periods viz: FYs 2013/2014-2015/2016 & 2016/2017-2018/2019 and thereafter once every 5-years i.e. from FY 2019/2020) is supposed to determine the basis for allocating among the 47 counties the share of national revenue that is annually allocated to the county level of government (Article 217).
CRA recommendations and the views of county governors, the Secretary re-spon-sible for finance, any organization of county governments, professional bodies and members of the public are to be taken into account.
Each financial year the equitable share of the revenue raised nationally that is allocated to county governments shall not be less than fifteen per cent (15%) of all revenue collected by the national gov-ernment - Article 203 (2).
Article 203 (3) – states the amount referred to in Article 203 (2) shall be calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly.
The Governance and Management
Dimension of Devolved Government
Governance is the process – by which power and authority is conferred on rulers, by which they make the rules, and by which those rules are enforced and modified.
UNDP defines governance as “the exercise of economic, political, and administrative authority to manage a country’s affairs at all levels”.
It comprises mechanisms, processes, and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations, and mediate their differences.
Understanding our devolved governance system therefore requires an iden-ti-fi-cation of both the rulers and the rules, as well as the various processes by which they are selected, defined, and linked together and with the society generally, at both the national and county governments.
There are critical governance and man-agement questions for Devolved Governments. These questions are: Who are the rulers at the national and county government levels? ;What processes and rules apply in the definition and selection of rulers at both the national and county governments? ; How are the rulers at both the national government and county levels linked together and with the society at large? ; What are the mechanisms, pro-cesses and institutions through which citizens and groups within both the national and devolved levels of gov-ernment articulate their interests, exercise their legal rights, meet their obligations, and mediate their differences?
National and County Government Rulers, How they are Defined and Selected.
The National Executive
President - elected universal suffrage (can be removed from office on grounds of incapacity Article 144 or through im-peachment - Article 145). Presidential candidates required to nominate running mates who shall be deemed as elected Deputy President on election of the Presi-dent.
Cabinet (minimum of 14 and maximum of 22 No) nominated by President, vetted by National Assembly/and Appointed/and or removed by President or via a vote of no confidence in the National Assembly (Cabinet also to include D/President & AG)
The Cabinet will be accountable to the President and the People of Kenya via the National Assembly/Parliament
Functions of National Government: Outlined in the Fourth Schedule and entails stan-dards, regulation, national economic policy and planning, monetary policy, foreign affairs, primary, secondary and tertiary education, defence, transport and commu-ni-cations, national public works, national referral hospitals etc
Functions exercised through departments and cabinet/parliamentary sanctioned/approved policies, long-term, medium and short term plans involving agreed or projected projects, programmes and investments; that are funded via annual and medium budgets that rely on tax revenues, dividend income, fees, charges, loans, grants etc.
It comprises of Parliament i.e. Senate and the National Assembly.
National Assembly: It will have a. Total 350 No. viz: 290 elected MPs+47 elected women reps from each of the 47 county gov-ernments +12 nominated on party strength of the 350+ Speaker – ex-officio)
Functions of the National Assembly are to enactment of laws, vetting of presi-den-tial appointments, oversight of the national executive via national assembly committees etc (NB: National Assembly may originate national bills relating to county gov-ernments)
National Assembly Power will be exercised via research of facts, debating, voting, lobbying, party whipping, con-sen-sus building and trade-offs.Public participation in law making and budgetary matters is mandatory under the new constitution
Observance of the National Values and Principles of Governance, the Values and principles of Public Service and Chapter Six required
Senate: (i.e. Total 68 No. 47 one from each County, 16 Women nominated by political parties/on strength of the 47; 2 Members, a man and a woman – rep-re-senting the youth 2 Members, a man and a woman – rep-re-senting persons with disabilities Speaker as ex-officio).
Functions of the Senate
Protecting interests of county gov-ernments, consideration and en-actment of any bill that affects the functions and county gov-ernments; determination of the 3 or 5-year for-mu-lae/basis for the allocation of the revenue raised nationally among the 47 counties; decision on the removal of the President; consideration of issues relating to the stoppage of funds or the sus-pension of county governments etc - Article 96
Senate Power exercised via research of facts, debating, voting, lobbying, party whipping, consensus building, trade-offs etc
When the Senate is voting on matters that affects counties, other than a Bill, each county delegation shall have one vote to be cast on behalf of the county by the head of the county delegation or another member of the delegation designated by the head of the delegation Article 123(4)). Its noteworthy all elected and nominated senate members who are registered voters in a particular county will con-sti-tute a single county delegation for purposes of voting on issues concerning counties (Article 123(1).
Presidential and parliamentary candidates must satisfy educational, ethical and moral requirements as per Articles 99, 137, 193 and 200 of the Constitution; and as specified in various statutes (Elections Act, 2011; Ethics and Anti-Corruption Commission Act, 2011; The Leadership and Integrity Bill, 2012, KRA Act, HELB Act etc.).
Power of recall
(Article 104): The electorate will have power to recall elected MPs and Senators following a process outlined in the Elections Act, 2011.
The County government
It comprises of the County Executive and County Assembly
The Governor is the CEO and is elected by simple majority of the entire county elec-torate/registered voters (can be removed from office - Article 181 or 192 or). Gubernatorial candidates are required to nominate running mates who shall be deemed as elected Deputy Governor on election of the Governor.
County Executive Committee
There will be a maximum of 10 – if county has more than 30 electoral wards or one third of elected members if county has less than 30 electoral wards, and will be nominated by the Governor, vetted by County Assembly and Appointed/and or removed by the Governor or via a vote of no confidence in the County Assembly. County Executive Committee to include Deputy Govenor. Neither the Govenor nor his deputy are members of the County Assembly.
Executive Committee members are accountable to the Governor and the people of the County via the County Assembly.
Functions of county governments
They are Outlined in the Fourth Schedule and entails planning, and implementation of development projects and programmes at county or inter-county level in the areas of agriculture, health services, transport, roads, water, county planning and de-vel-opment, markets, cooperative societies, housing development, electricity and gas reticulation, tourism, trade development and regulation, cultural activities, public entertainment and amenities etc
Functions of county governments are exercised through departments and executive committee/county assembly sanctioned/approved policies, long-term, medium and short term plans involving agreed or projected projects, programmes and investments; that are funded via annual and medium budgets that rely on equitable shares of revenue raised nationally, conditional and unconditional grants from the national government share of national revenue, equalization fund, contingency fund, property and en-ter-tainment tax revenues, dividend income from county corporations/companies, fees, charges, loans, donor grants etc.
County Assembly Representatives (CAR)
County assembly Representatives are elected from each ward (No. of wards in a county are dependent on the number of constituencies – and the distribution of wards within a county dependent on the population of the constituency) (Macha-kos County – just like Kitui County has 8 constituencies and hence 40 county wards; whilst Makueni with 6 con-stitu-encies has county 30 wards)
There’s a constitutional proviso for special seat members – for gender balance – no more than 2/3 of the same gender rule applies
Members from marginalised groups, people with disabilities and the youth WDs and the Youth 2 each – man and woman
Speaker (ex-officio) - elected by the Count Assembly from outside its ranks - role to preside over the sittings of the county assembly or in his/her absence another member of the assembly elected for the purpose
Nominated ward reps to be on the basis of party strength of elected ward reps.
County Assembly Functions:
to make laws, necessary for effective performance and exercise of the power of the county government, Vetting of ex-ecutive committee members and other senior staff nominated by the Governor or the County Public Service Board. The may receive and approve of plans and policies for the management and exploitation of the county’s resources and development and management of its infrastructure and institutions
Exercise oversight over the county executive committee including its approval of budgets, development plans, county audit reports from the Auditor General etc.