My take on County Government

I don't know if it was the Editor-in-Chief or that these are his true thoughts on the County, but my learned senior, Otiende Amollo, is wrong on certain aspects of County Government (Counties take governance closer to the people, Daily Nation, 24th November, 2010). In response to a question, Mr. Amollo states that "the role of councillors is now defined. We will have many more councillors because the county assembly, at least one third must be of the opposite gender. Since most of those that will be elected are likely to be men, more women will be nominated to reach the one-third requirement." There are two problems with this statement. 

First, the County Assembly is not a larger version of City, Municipal, Town or County Council. Chapter Eleven, the First and Fourth Schedules define what a county government is. In their definitions, the local authorities do not figure. In fact the allusion to wards that Mr. Amollo makes later on the interview are irrelevant to the discussion at hand as the Counties are new creatures in the history of this country, they will have different and differing responsibilities and they will not be an upgrading of the local government system that has been in place since before Independence. Second, the question of gender balancing in the Constitution has nothing to do with the county government per se, but everything to do with redressing the appalling patriarchal system that has existed since time immemorial with a view to reversing the iniquities that have been visited upon our womenfolk for millennia.

I realise that we have a difficult needle to thread when it comes to the question of local government in the context of the County Government. What will be the place of large councils such as the City Council of Nairobi, the Municipal Council of Mombasa, the Municipal Council of Nakuru or the Municipal Council of Kisumu? It is possible for the councils in Kisumu, Nakuru and Mombasa to co-exist with the County Governments as their areas of jurisdiction did not cover the entire counties as in Nairobi. Nairobi will be a special case. For instance, it may assume the same status as Washington DC to some extent as it is both the capital City, a County and has a Council that has jurisdiction over it entire territory. Nairobi is the only unit that does not have a county or town council. Perhaps, Mombasa too suffers from this problem. This, I suspect is the reason for Article 184 on urban areas and cities, where Parliament, and not the senate, will legislate on the matter within one year of the effective date, i.e., promulgation of the Constitution. Therefore, it is possible to have mayors and governors co-existing in the same county. Parliament may have to pass a law defining the relative jurisdictions of Nairobi City County and the City Council of Nairobi to avoid conflict. But for all intents and purposes, the local government was effectively abolished the day the Constitution was promulgated.

The Minister for Local Government, for whatever reason, has taken charge of the process of reforming the local government structure to conform with the the devolved system of government. In appointing Mutakha Kangu and his committee, Hon. Musalia made a wise choice but it remains to be seen whether the Committee will be able to navigate the difficulties of separating the local government structure from the devolved government structure as envisioned in the Constitution. Many of the functions that have been given to the devolved structure are the same ones that were performed by the local government. It will be great challenge for the committee to come up with new functions for the local government in conformity with devolution f they assume that they can legislate on the devolution from the devolved structure proposed in Chapter Eleven. To date, local councils have performed dismally. Many have run up huge debts that eventually have to be borne by the central government. But in light of the fact that County Governments will have dedicated funds devolved to them to spend autonomously, the position of local government remains precarious.

Article 176 provides that county governments "shall [decentralize their] functions and the provisions of [their] services to the extent that it is efficient and practicable to do so." This implies that it ill be up to the counties themselves to determine the level of devolution that is desirable and that Parliament or the senate are not competent to legislate on this matter. Therefore, the committee appointed by the Minister for Local Government can only suggest the mode of devolution but not the details of devolution, as these ultimately, will be determined by the counties themselves. Even section 15 of the Sixth Schedule in no way suggests that the local government shall definitely form a part of the County Government. What it provides for is the phased transfer of functions to county governments from the national government, a process that should not take longer than 3 years.

I wager that the implementation of the devolution structure will be the most difficult and potentially, the most contentious. Many well-meaning professionals have already embarked on the process of determining the governance of counties without fully appreciating the complexities of attempting to replace one system of government with another. The challenges will include the question of the effective exercise of the powers of county governments and the management of public funds devolved to the counties. In the end, it will be a matter of how involved all Kenyans are in the manner of devolution that will determine whether this experiment succeeds or not. Mr Amollo has opened the debate and it is up to us to participate in it as fully and effectively as possible.