What is devolution

First a word about what devolution is. It is a system under which certain governmental powers are
exercised by the counties, not by the national government, and through institutions elected by their
people,. Counties can make law about, and administer these matters. They have resources, from the
national government and those they raise in the county. The authority and institutions of the counties and
their relationship with the national government are established in and protected by the constitution. In this
way devolution is an integral part of Kenyas constitutional system. No changes can be made to it except
by an amendment of the constitution. Amendments will require the approval of two-thirds of all the
members of the National Assembly and the Senate (voting separately) and support in a referendum.
History
The movement for devolution was prompted in large part because of the centralization of the state,
particularly the system of provincial administration (PA). PA was the bedrock of colonial administration:
directly under the control of the governor, the PA dominated other governmental agencies in the field. It
was responsible for law and order, and so had greater authority than even the police. The Administration
Police were an essential component of the PA, and like it, directly accountable to the governor. The long
arm of the PA reached from the provincial capital to small villages. The absence of a law on the PA meant
effectively that there were no restrictions on its activities, although in this respect it was not much different
from other colonial agencies. The provincial commissioner was without doubt the most powerful person in
the province, as the district commissioner was in the district.
Just before independence there was a movement (majimbo) for the transfer of significant powers to
regions, largely based on provinces. A primary reason was to eliminate the PA system. The plan was that
central government would discharge its functions in the regions through regional authorities. However
Jomo Kenyatta and his close associates did not like this sharing of power and within a year repealed
majimbo (after suitably bribing the members of the Senate). In due course the authority of the PA was fully
restored and Kenyatta made as much use of the PA as had Governor Baring during the emergency. The
PA along with administration police, remains the most powerful arm of the government, indispensable to
presidential rulehence the dispute over the creation of county commissioners (to be discussed in
another article).
A key trigger for the fight of the people against Moi was the abuse of the enormous state and economic
power that had been centralised in the office of the presidency. A major demand during the struggle was
the dispersal of power, both vertically and horizontally. Devolution was adopted as an objective in the
famous Safari Park national conferences in the 1990s. The Constitution of Kenya Review Act 2000
required the CKRC to consider peoples participation through the devolution of power; respect for ethnic
and regional diversity and communal rights including the right of communities to organise and participate
in cultural activities and the expression of their identities. It was to review the place of local government,
the degree of the devolution of power to local authorities, and options for federal and unitary systems.
What the people told the CKRC
Wherever the CKRC went, it noted widespread feelings of alienation from central government because
of this concentration of power in the national government, and to a remarkable extent, in the
president. People felt marginalised and neglected, deprived of their resources; and victimised for
their political or ethnic affiliations. Provinces or districts which did not support the president were
penalised in terms of development and resources. People felt that under both presidential regimes,
certain ethnic groups had been favoured, and others discriminated against. There was particular
resentment of the PA which was seen as an extension of the presidents office, and of the
arbitrariness and abuse of power by its officials. Many had doubts about the legitimacy of the
administration police, wanting forms of community policing at local levels. Local government had
lost its authority and had been deprived of financial resources since independence.

They considered that their problems arose from government policies over which they had no
control. Decisions were made far away from them. These decisions did not reflect the reality under
which they lived, the constraints and privations which they suffered. They had lost access to markets for
their agricultural products because roads had been allowed to fall into disrepair. Clinics did not have
essential medicines.
Land disputes were rampant, and land registries far away, leading to alienation of their land
that they could neither comprehend nor do much about. As their poverty deepened, they could
see the affluence of others: politicians, senior civil servants, cronies of the regime. Almost
everywhere the people wanted the state restructured. Most asked for the devolution of power to local
levels and greater role for community organisations.
Constitutional Proposals for devolution
CKRC and Bomas
CKRC established detailed proposals for devolution, beginning its with objectives, and covering powers
and institutions of devolved units, and their relationship with the national government, including funding
for devolved activities. Several matters of detail were left to be dealt with in legislation. But it did propose
structures right down to village level.
The proposals were received favourably on the whole by Bomas delegates (even though some groups
were opposed in principle to the idea of devolution, including Kibaki and his ministers). No disagreement
was expressed with respect to the objectives of devolution. The major disagreement was on what should
be the principal unit of devolution.
One group favoured the district, the other the region. The CKRC had chosen the district but found some
co-ordinating role for the province. At Bomas a compromise was struck by giving provinces somewhat
enhanced powers. Bomas accepted CKRC proposal to abolish the PA (but not administration police).
However, Kibakis government sabotaged the draft as is well known,producing what is known as the
Wako draft which was offered to, but rejected by the people, in a referendum in 2005.
Wako Draft
The Wako draft omitted altogether the concept of devolution, reverting to local government. It proposed
only one sub-national unitthe district. Districts would have law making powers (though not as many as
in the CKRC or Bomas drafts). But the national government could override district laws even if on a
subject under the district list.
There was little detail about how district authorities would be constituted. The Wako draft rejected a
second chamber to safeguard the interests of districts. Nor would there have been any provinces, which
might have acted as some kind of buffer between the centre and districts.
There was no financial allocation to districts. There would have been 112 districts: so small that they
would inevitably have had limited resources and been unable to stand up to interference by the centre.
Nor did it abolish provincial administration, or the administration police (which presumably would have
operated as arms of the Presidents Office). The creation and dissolution of districts would depend
ultimately on decisions of the President. Overall, districts would have been little more than glorified local
authorities. It is widely believed that the elimination of devolution was a primary cause of the rejection of
the Wako Draft.
2010 Constitution
The 2010 Constitution largely followed the Bomas scheme. The Committee of Experts was faced with the
same dilemmas as had vexed CKRC and Bomas, namely the levels and numbers of devolved units. At
first it supported the idea of 3 levels (unlike the 5 of the CKRC and 3 of Bomas). But later it opted for a

single lower level to avoid a complex system. The units at that level were labelled counties and their
boundaries largely followed district boundaries drawn as part of independence arrangements.
Objectives of devolution
A special feature of devolution in Kenya is the close attention given to its objectives and principles (in line
with the general approach of the Constitution to the exercise of state power). In many countries devolution
is seen merely as the sharing of power, neutral perhaps as to how that power would be exercised. In
Kenya devolution was seen as necessary to achieve various values and principles. To some extent, the
objectives can also be seen as a response to the dire consequences of devolution that critics predicted
(such as secession, oppression of minorities within the county, the breakup of the country, expense and
lack of capacity).
The best way to understand the objectives of devolution is to examine Articles 174 and 175 (which have
remained unchanged from the CKRC draft). In addition, county governments are bound by the
constitutional principles in Article 10 and chapter 6 on integrity. Article 174s 9 objectives can be
consolidated into the following principal objectives (with some overlap between them).
Diversity
A major reason for devolution ever since before independence has been the recognition of Kenyas
diversity. Article 174 places special emphasis on self government, particularly the rights of minorities and
marginalised communities, and other groups, to manage their own affairs and development. Article 175
requires the promotion of gender equity and equality in counties.
National unity
Throughout the Constitution diversity and national unity are balanced, almost two sides of the same coin.
So it is with devolution. The former centralised system under a powerful presidency tended to ethnicise
politics and politics of exclusion. Now devolution provides many sites of power, reducing the danger of
exclusion. The assumption is that through democracy, recognition of diversity, and forms of selfgovernment, all communities will feel part of the country, with increased loyalty. The rules about interdependence and co-operation between the national and county governments should strengthen national
unity. The emphasis is on inclusion of all groups at both national and county level.
Democracy and accountability
A major deficit of democracy in Kenya has been the absence of peoples involvement in politics and policy
discussions, or their ability to demand accountability of the government. Even in the five-yearly elections
their horizon has been circumscribed by tribalism. The location and exercise of powers about the
everyday needs of the people should provide the foundations of participatory politics. Devolution creates
more opportunities for the people to choose their leaders, and great expansion in public participation.
Democracy should also be strengthened by separation of powers and checks and balances through new
centres of authority. People in rural and urban areas will be able to decide for themselves (or
influence decisions) on many matters of local concern and to participate in greater number of debates,
and elections. Governments and officials at closer proximity to them may become more responsive and
be compelled to be more accountable. Ordinary people will be able to demand information and
accountability, which at the national level is left to a few NGOs.
Promoting economic and social development
Devolution is expected to lead to more rapid and balanced economic and social development. The
centralised system, with the concentration of all government institutions and decision making in
Nairobi, led to the concentration of economic activities in the capital city area, to uneven
development and
disparities of economic opportunities. This resulted in the impoverishment of
many regions and communities and the drift towards urban areas. With new governments in counties,

there will be greater incentives and opportunities

throughout the country.

for economic

and social development

County governments will actively promote growth and seek to achieve a high degree of self-sufficiency,
and respond to local needs and circumstances. People will enjoy easier availability of services There will
emerge new centres of growth, in which people have opportunities for investment and employment.
Efficiency should come from local knowledge. And the incentive to create capacity and skills locally lies in
the rule that devolved functions will be transferred to a county only if has the capacity to discharge them.
And counties will no doubt compete with each other.
Promoting Equitable Distribution of Resources
There has been much debate as to whether devolution will lead to a more equitable
distribution of resources;, some people think a centralised government is more likely to achieve this. But
in Kenya many counties outside three or so major urban areas have done poorly, and even in urban areas
the main beneficiaries are often not the local people. The Constitution now requires the equitable sharing
of national and local resources throughout Kenya. The scheme of the financing of counties is biased in
favour of the less developed areasthough perhaps not sufficiently so.
Achieving objectives
These values and objectives are woven into the fabric and structure of devolution and in the relationship
between the national and county governments. But it is no good being too starry-eyed about devolution.
The global record shows some significant successes and some spectacular failures. Circumstances are
more propitious than they were for majimbo. That was a defensive measure, born out of fear, to secure for
smaller communities some powers of self-government. In Bomas the demand for devolution was for
positive reasons: to strengthen national unity, protect diversity, and reinforce democracy. At
independence there was secessionist activity in one part of the country. At Bomas there was
universal acceptance of the undivided sovereignty of Kenya, and a deep commitment to the
concept of a single and equal citizenship for members of all communities. This devolution has been
negotiated among Kenyans over a long period and is the result of compromisesnot an imposition by a
departing colonial power. And unlike with majimbo, people of all counties have welcomed devolution and
are looking forward to participating in its affairs.

DEFINITION OF DEVOLUTION
Devolution is the transfer of powers from the central government to local units) Kenya will be
divided into 47 counties. There will be a president, ministers, senator, governor, and members of
parliament.
Devolution can take various form;
a) Administrative - For example the establishment of Government Offices for the Regions,
or, pre-1999, the practice of transferring responsibilities from central government
departments to territorial departments of the same Government.
b) Executive - where the prerogative powers of the UK Government are transferred to
ministers of devolved governments, usually under statutory authority.
c) Legislative - where law-making powers are transferred to other legislatures
Objects and principles of a devolved government.
One of the objects and principles of a devolved government in accordance to the proposed
constitution, Article 174 is to recognize the right of communities to manage their own affairs and
further their development. This will give the people a sense of identity and self-empowerment.
This is because they will feel recognized in their contribution to the growth of their own county.
Another principle is to protect and promote the interests and rights of minorities and
marginalized communities. Hence the minorities will not feel sidelined. This will promote a

sense of unity as they will not feel as though their needs have been ignored.
Gender aspect
According to Article 175 of the proposed constitution, no more than two-thirds of the members
of the representative bodies in each county government shall be of the same gender. A significant
number of women leaders will therefore have a chance to occupy leadership positions since those
positions are normally dominated by men.
Financial Aspect of Devolution.
Under the Financial Aspect of Devolution, there are principles that apply and funds received or
generated by counties must follow the following ideologies according to the current Kenyan
Constitution;
a) The Power to Raise Revenue.
A county can generate revenue through taxation article 209(3). It may impose property rates,
entertainment taxes and any other tax that it is authorized to impose by an Act of Parliament.
In order to borrow, a county government may borrow only if the national government guarantees
the loan and with the approval of the county governments assembly. This is according to article
212.
b) Collecting of Revenue
In the new constitution, it is unclear how revenue generated will be collected. Administration of
revenue involves the collection of taxes once they have been determined. Under the old
constitutional system, local authorities were supposed to collect their own taxes. Experience
indicates that many of them had no capacity to discharge this function.
With the new constitution, it is still a subject of debate whether the KRA will collect revenue on
behalf of the counties or whether it shall assist the counties in building their own capacities to
collect their own revenue.
c) The power to spend revenue.
The county governments can raise and spend what they raise. But what the national government
raises is to be shared among the two levels of government.
Article 202 provides for the concept of equitable shares. The article requires that revenue raised
national be shared equitably between the national and county governments. The county
governments may also be given additional allocations from the national governments share of
revenue. These additional revenues may be given conditionally or unconditionally.
Article 203 provides a detailed criterion to be followed in vertically determining the equitable
shares of both the national and county governments on the one hand; and horizontally among the
47 counties. This criterion incorporates the principles of financial equalization which must be
followed when determining the shares.
Article 204 provides for an equalization fund for marginalized areas
OBJECTIVES
(a) to promote democratic and accountable exercise of
power;
(b) to foster national unity by recognising diversity;
(c) to give powers of self-governance to the people and enhance
the participation of the people in the exercise of the powers
of the State and in making decisions affecting them;
(d) to recognise the right of communities to manage their own
affairs and to further their development;
(e) to protect and promote the interests and rights of minorities
and marginalised communities;
(f) to promote social and economic development and the
provision of proximate, easily accessible services throughout
Kenya;
(g) to ensure equitable sharing of national and local resources
throughout Kenya;
(h) to facilitate the decentralisation of State organs, their
functions and services, from the capital of Kenya; and
(i)to enhance checks and balances and the separation of
powers..

The positive effects of devolution:

1. Aspect of subsidiarity. Having the powers move from the state authority to
the county levels people are assured to be heard if they voice their concerns.
2. There will be equal distribution of resources.
3. It will to the development of individual counties.
4. It will lead to economic growth of the country as a whole. 9
5. It will lead to increased employment. There will be new posts and the
development goals of the county to be met, labour will be required.
6. It will ease the burden of the central government since the work will have
been delegated.
7. Decisions will be made faster.
The negative effects of devolution:
1. It will lead to disunity. This is because a county will be dominated by people
from the same ethnic community.
2. It will promote ethnicity.
3. Corruption might worsen.
4. There might be excessive taxation
5. The criteria for devolution are not clearly specified.
6. It is an expensive form of government . Due to the diversity of roles.
7. It will lead to conflict within ethnic group- clanism. This may be as a result
of nepotism whereby the leader will favour those who are closest to him or her.
8. Some areas have inadequate resources to exploit hence they may continue to
lag behind. For example North Eastern.
9. Kenya is too small to be devolved into 47 counties
Principles of devolved governments in Kenya
The devolved government in Kenya will:
1.
Promote democratic and accountable exercise of power.
2.
Foster national unity by recognising diversity.
3.
Give powers of self-governance to the people and enhance the participation of the people in
the exercise of the powers of the State.
4.
Recognise the right of communities to manage their own affairs.
5.
Protect and promote the interests and rights of minorities and marginalised communities.
6.
Promote social and economic development and the provision of services throughout Kenya.
7.
Ensure equitable sharing of national and local resources throughout Kenya.
8.
Facilitate the decentralisation of State organs, their functions and services, from the capital of
Kenya;
9.
Enhance checks, balances and the separation of powers.

Devolution makes sense

But they have different and often contradictory views of how this will happen. For instance, lagging areas
are counting on redistribution of national wealth to help them catchup, while leading regions see
devolution as a chance to run their own affairs unimpeded.
Collectively, Kenyas new counties will be able to claim a chunk of the national pie, but they will also
inherit significant spending responsibilities. County spending, on day one, will be mainly dedicated to
ensuring that existing services are delivered.
Anything above this would mean spending cuts in the national budget, which will continue to finance
education, police, defence, debt repayments and other priority areas that will need to have their funding
protected. Moreover, as the county slice is further subdivided, there will be winners and losers
redistribution to lagging counties will be at the expense of leading regions which are the growth engines of
the country.
From a social and institutional perspective, Kenyas devolution makes a lot of sense. This is a very
diverse country with 10 major ethnic groups. Needs are very different between the arid and semi-arid

north and the highlands, between the rural Northern Rift and the urban centres of Mombasa, Nairobi, and
Kisumu, and between the coast and western Kenya.
Kenyas 40 counties will soon have an average population of one million people. This means they will be
relatively homogenous, but not big enough to become strong regional blocs. Counties are better placed
than the national government to deliver social services because they have specific challenges and the
local knowledge to address them.
Take the case of health: Lagging counties still need to catch-up in providing basic health services while
the leading urban counties will be faced with new types of diseases (mostly non-communicable such as
diabetes and cancer). With these stark differences it makes no sense to provide the same mix of services
across the country.
Even if there are no dramatic improvements in service delivery, people prefer to make decisions rather
than following directions imposed by a central government.

Potential Challenges of the devolution process

Fundamentally, the success of devolution will require huge resources, public awareness, capacity building
initiatives and highly committed personnel, institutions and organizations, founded on the national values
as enshrined in the Constitution. The essence of devolution is that at the local level the people are
allowed a certain flexibility within which they can make decisions that are unique to themselves and their
locality. They are allowed a measure of self-governance at this level but at the national level, decisionmaking is shared.
One major administrative problem that many counties will face is their inability to realize fully the revenue
that shall be due to them. As provided for in Chapter 12 of the Constitution on Public Finance, Article
201(b), provides that the public finance system to be put in place should actually promote an equitable
society, and that the burden of taxation shall be shared fairly. Thus, the ratio between what will be
reported and projected revenues shall potentially and significantly differ both between counties and
between areas within the counties. The following factors provide some explanations for this wedge:
(1) poor administrative capacity to enforce the taxes;
(2) explicit and intentional tax evasion and resistance from taxpayers;
(3) corruption, including embezzlement of revenues;
National and county governance are vital in enhancing the effectiveness of this two-tier government, yet
this cannot not wish away the myriad of challenges that this system attracts. These include;
Restructuring: Fate of Provincial/District Administration
The Constitution of Kenya 2010 does not devolve all public functions to the countries, so how the central
government will operate at the local level to meet its ongoing obligations is important. There is no
gainsaying of the fact that under the Constitution of Kenya 2010, the former Provincial Administration,
taking the name and capacity as County Commissioners, will play complex and indispensable
administrative roles than ever before. It shall coordinate inter-ministerial duties, manage the relationship
between the national and county governments, and monitor the implementation of national policies and
utilization of funds. This is what breeds the fear, as to how the County Commissioners will discharge their
duties without causing many hiccups as to the order and structures of devolution established in the county
which shall be run by the a governor elected by the people. It is proper that there should not be conflicting
or overlapping mandate, rather, the public officers should handle their obligations complimenting each
others capacity for the common good.
At present, there exists conflicting debate as to whether the governors and county commissioners shall
have conflicting roles. Of course the Constitution provides that the county shall be headed by the
governor, which therefore means, that in the effort to restructure the former provincial administration, the
county commissioners should not seem to assume the overall leadership of the county to serve the
interests of the central government. The strength of the Kenyan devolution system is that the counties are
autonomous.

As Obuya Bagaka observes in his article Restructuring the Provincial Administration: An Insiders View
(SID Working Paper, Articles 175 and 189 of the 2010 Constitution on separation of powers and respect
for institutional integrity of each level of government respectively, PA officials such as sub-chiefs and
chiefs may either be absorbed by the county governments or relieved of their duties given that most of
what they do largely falls within county jurisdictions. On this score, it obliges the Transitional Authority to
guide the relationship between the County Commissioners and the County Government.
Fiscal Functions of the Central Government with respect to Counties
The Constitution does not make it clear how counties will generate their wealth to ensure sustainability of
their operations. Article 209(3) states that county governments only have powers to impose property
taxes, entertainment taxes and any other tax that parliament may authorize them to impose. Given this
provision, one would say that the spirit in the establishment of Counties appear more focused on
distribution rather than creation of wealth.
According to the 2012 Budget Policy Statement issued by the Minister for Finance, there is proposed
division of revenue between the national government and the county governments, where the national
governments accounts for 80% equitable revenue share over the period of 2012/2013 financial year, while
the county government financial transfers average 20%. So a bigger percentage of the national revenue
collection and allocation shall be retained by the national government. In regard to fiscal allocations from
the central government, the fate and wisdom of existing funds Local Authority Transfer Fund,
Constituency Development Fund) and how they appropriately relate to the 15% county share of national
revenues is guided by the CRA Act, and the fact that county governments will have to be participating in
the budget making process by developing their preliminary budgets in a participatory process and
forwarding to the national government.. Of course it is understood that the 15% revenue allocation to
county governments comprise an enhanced consolidation of the LATF and CDF. Further, the adequacy of
the 15% share to finance mandated functions is only in early stages of study and data, yet a critical
review of the county government needs for local development and operational costs indicate that the 15%
allocation may compel most county governments to function on lean budgets. This is premised on the fact
that all counties do not have equal resource capacity or endowment, and not all can strongly raise their
own taxes that can satisfactorily satisfy them. Further, the nature of the revenue sharing formula has
raised heated debate and legitimate discontent among stakeholders and leaders from various counties,
thereby casting aspersions as to the suitability of the formula proposed by CRA. Busia County leaders, for
instance, have faulted the CRA for the limited funds allocated to it using inaccurate population figures that
vary from the 2009 census results. CRA has later admitted that the population of Teso North had been
factored into Bungoma County and not Busia County as should have been the case, regretting the
happening which the CRA chairman stated that it shall be corrected. Other discontents arise from the
paltry amount allocated to the very small counties, which can barely sustain operations.
Decision making process at county levels
While devolution creates opportunities for capital raising and financial intermediation, there are several
levels of approval, and certain decisions will have to be endorsed by the Central Government Involve
/invite Central Government representatives in the county implementation committees;
Setting up of businesses within the counties may encounter a lot of bureaucratic procedures: Develop
mechanisms to continuously update Central Government on plans and progress by the Transitional
Authority, on the successes and impediments that are arising, and possibly recommending how they can
be addressed. This can also be complimented by the duties of the county commissioners in collaboration
with the county government.
Capacity: There are also possible challenges on capacity should financial services be devolved to county
levels, especially in a specialized industries like capital markets; Overall training of personnel to serve at
county levels through training institutions;
Change management: The constitution changes the ways of doing things in Kenya including businessDevolved governments across counties face diverse situations due to the different socio-economic
conditions and cultural setups including the peoples mindset in favour of great development with
increased peoples participation. It shall be instrumental for the civil society organizations to continue
building linkages and oversight partnerships with governments, development partners, the judiciary and
legislature, to ensure that systematic change management takes place.
Transition: Kenyas devolution is a massive transition and requires taking stock of the current situation
and making decisions about staffing counties and appropriately phasing in functions/resources; but there
has been very little attention to strategy. The Commission on the Implementation of the Constitution (CIC)

cannot deal with the details of devolution, and there is much debate over how to handle this (a transition
authority has been established, but much debate over details of how it shall execute it mandate to eschew
rough edges in the transition process in regard to public participation, especially in marginalized and
remote counties such as Turkana. Among other responsibilities, the Transitional Authority is mandated to
establish the status of ongoing processes, development programmes and, projects and make
recommendations on the co-ordinated management, reallocation or transfer to either level of government
during the transition period; ensure successful transition to devolved system of government as well as
provide mechanism for the transfer of assets which may include vetting the transfer of assets during the
transition period. Granted such mandate, the authority therefore is well placed to midwife and oversee the
transition process, and how assets may be transferred to counties to facilitate effective functioning and
smooth running.
The risks affecting the implementation of devolution in Kenya could be categorized as strategic,
operational, institutional and funding. Strategic risks are perceived to be those that adversely affect the
future shape and form of devolution in Kenya, especially in terms of their effect on the anticipated
outcomes, in relation to the provisions of the constitution. These include misinterpretation of the CoK
2010 provisions in relation to devolution, political posturing and the electioneering processes as well as
inadequate stakeholder understanding of the provisions and implications on devolution. On the other
hand, operational risks relate to those that impact on the efficacy of the implementation of identified
provisions in relation to the devolution processes. These include lack of capacity, poor public
communication interventions, half-hearted implementation efforts and poor networks amongst key
stakehold

Challenges and opportunities for improvement

To begin with, the lack of understanding of key issues around devolution is generating a great deal of
mistrust between stakeholders with some, especially the minority coalition in both houses of parliament,
believing that the national government is seeking to frustrate devolution. Some counties, for instance,
contest the piecemeal transfer of functions that has taken place so far, arguing that all powers provided in
Schedule Four of the Constitution be transferred at once. This demand is partly driven by belief on the
part of county governments that officials of the national government and local government structures
being phased out remain resentful of the invasion of their previous scope of authority. While this may be
true, the reality on the ground is that many county governments, if not all, lack the capacity to absorb all
such powers within such a short term. This argument is strengthened when one considers, for instance,
that Kenya currently lacks trained and experienced legislative drafters, fiscal and economic planning
experts to adequately cater for the 47 counties.
Revenue allocation is also proving to be a divisive issue. By law, counties are entitled to least 15% of the
total National Revenue collected. Despite many counties currently enjoying adequate funding, there is still
a feeling that budgetary allocations need to be increased, and that the central government is reluctant to
do this. Many county governors have since launched a spirited campaign to that effect and have
interpreted the perceived national government reluctance as a ploy to frustrate the effectiveness of
devolved units. On closer scrutiny though, the reality, as with the transfer of power, is that county
governments do not have the absorption capacity for more than 15% of the national government revenue.
Added to this are demands by county assembly authorities, like their national counterparts, for increased
remuneration and benefits beyond the $1500 monthly package.
Other challenges involve the four different offices involved in the devolution process, each with their own
administrative and bureaucratic culture that complicates the process; lack of audit reports for structures,
assets and liabilities inherited from former local government institutions; as well as failure to observe the
at least a third rule which was designed to ensure adequate representation of women and other
historically marginalised groups in the devolved structures. These challenges do not only pose great risks
for the effective roll out of devolution in Kenya but also provoke some critical questions about the current
implementation strategy.

For instance, in a country where the average annual salary is just $1600 (ca $133 per month), and the
vast majority of the population fall within or below this income bracket, will the new devolved government
structure, and with it the demands from officials for more benefits and remuneration, not place a punitive
wage bill on Kenyan taxpayers? Second, in the absence of proper auditing of inherited structures from the
defunct local government structures and the impossibility of effectively policing all aspects of this
transition, how will the risks of asset stripping be mitigated in a country where corruption and fraud is still
rife?
Regarding the one third rule, the situation is even dire as ingenious devices are being used to
circumvent it. In Kericho County, for instance, many individuals are masquerading as members of the
Tallai clan, which is one of the countys traditionally excluded groups, to secure nomination to the County
Assembly, to the perennial detriment of actual members of the clan. With no clear solutions from
authorities that effectively address this, why would ordinary Kenyans and affected groups not be sceptical
about the value of the process?
By these questions, I am not suggesting that the process of implementing devolution in Kenya is failing or
bound to collapse. I am merely stating that we can do better, by sign-posting issues that relevant
authorities and stake holders will be ill advised to ignore if we want to effectively complete a process
whose start has neither been the best nor the worst.
The promise and the risks of devolution in Kenya
One of the key reforms of the Constitution of Kenya is the establishment of devolution through county
governments. Primarily, it is a response to the enormous centralisation of state power at the centre and in
the presidency, accentuated by the attrition of local government.
For many people, the main contact with government has been with Provincial and District Commissioners
and Chiefs, ultimately responsible to the President. On a more political level, the centralisation of power,
generally exercised by a small coterie of people around the President, marginalised communities and
regions that were perceived to be opposed to the regime.
Economically, enterprises and employment tended to concentrate in Nairobi, and led to migration from
rural to urban areas.
For an understanding of the reasons for devolution, one cannot do better than read Article 174.
They include democratisation, accountability, increased checks and balances, national unity, recognising
diversity and protecting minorities, economic development and access to services, and equitable sharing
of national and local resources.
This is an ambitious agenda, carried over from the CKRC and Bomas drafts, but without the same
institutional arrangements and devolved powers.
However, some of these goals can be achieved even within this more restricted framework if the right
decisions are made about the structuring of counties and their relationship with the national government.
Devolution is partly a matter of law and partly of conventions and practice. It will come into effect only
after the next General Elections, when the county assemblies and governors will be elected.
The complete implementation will take place gradually, but it is expected that devolution will be fully
operational after five years.
As the system is new and we do have some time to work out the detailed legislative and administrative
arrangements, it is critical that these are designed to achieve stipulated objectives.
There is enough flexibility as to the evolution and operation of the system. Powers and money will be
transferred only when the capacity to handle them has been established in the county.
County governments could agree that the national government should do certain things for them, or the
national government could agree that the counties, or those of them with the capacity, should take over
certain national government functions.
Phased in gradually
Laws can be made to give new powers to the counties. The system is to be phased in so that functions
are transferred gradually to counties that can handle them, and not all counties need get all the powers at
the same time.
Although the national government can make laws about everything, including topics on which counties
may make laws, national government law will take precedence only if there is good reason for having
national rather than county laws.
Flexibility is undoubtedly a good thing, but it requires complex systems of negotiation and decision
making.

The constitution recognizes this and provides for co-operation between the national and county
governments, with a critical role for the Senate as a sort of negotiating forum at the same time as it
protects the interests of counties.
There are also mechanisms for ensuring that counties observe the rights of all the residents and carry out
administration consistent with the values of devolution.
On the other hand, it is important that the national government realises that devolution is an essential
component of the new system of the state and counties have constitutionally guaranteed status and
powers and resist the temptation to dictate to them.
Despite this positive framework, there are serious anxieties about devolution. Paradoxically, some are
worried about too much powers being handed over to counties, others (like us) that too little power is
guaranteed.
But we have noted above the flexibility in this regard. Some fear discrimination against minorities within
the counties, and the tendency of the dominant ethnic group to appropriate all county offices and
resources.
Groups who have migrated into a county in recent times are fearful even of eviction. We must take these
anxieties seriously.
The constitution does deal with them. All citizens have equal rights where ever they live, and the Bill of
Rights has a strong system of enforcement.
Some autonomy can be provided for minorities located in areas where they are numerically predominant
through local government. Minorities are to be proportionally represented in county assemblies and the
executive.
Ultimately, there is authority for the national government to intervene in a county which violates the rights
of its residents (under the category of exceptional circumstances), after enquiry by an independent
commission.
Increase national unity
While fear of discrimination is understandable, it is important to remind ourselves that an important
purpose of devolution is to increase national unity, not threaten it.
Leaders at the county level, as much as at the national level, have constitutional obligations to promote
inter-ethnic harmony, social justice and the protection of human rights.
Groups which have suffered in the past due to vindictive policies of the central government will now find it
easier, through the county system, to feel secure, participate in public affairs, negotiate with the national
government and integrate politically.
If this happens, national unity will be strengthened. And this will be assisted by the requirement of
equitable distribution of resources, and special help to the less developed counties.
There are also anxieties about the financial implications of devolution. The costs attributed to devolution
are not new costs: we already have budgets for districts, including for county councils, some items of the
existing central government budget will be transferred to counties as the functions are transferred, and we
already have some funds which are regularly earmarked for districts.
Hopefully, the Salaries and Remuneration Commission will establish realistic salaries for public officers,
and the law might consider providing only allowances, not salaries, for members of county assemblies, as
their functions will not call for full time commitment an approach favoured by the CKRC.
But, more importantly, there is no zero sum arithmetic in these matters. Devolution has the potential to
open up new opportunities for economic development, and the rise of new growth centres as county
governments feel the pressure to deliver to the new electorates.
We need to put devolution in the context of the new constitution. The constitution is about
democratization, with the people at the centre of the political system. Devolution can be very empowering,
as the example of India and several other countries has shown.
But it will not happen automatically, and we need to remind ourselves how horribly wrong directions
county governments can take. Those who are already savouring prospects of governorships,
senatorships, and other lucrative offices should remember that the new constitution is about service to the
people, the integrity of leadership, the criminalization of incitement to ethnic hatreds, the promotion of fair
administration, and ultimately inclusion of all. The constitution also calls upon the people to see to it that
the leaders they choose respect these values.
Some risks of devolution

Ignorance and participation capacity:

An underlying logic of decentralization is that it brings development prioritization nearer prospective
beneficiaries who are assumed to know their objective as opposed to subjective interests. Yet, this is
not always so; a majority or popular decision can be misinformed and parochial to the disadvantage of
intended beneficiaries.
People power control or participation?:
Linked to the previous concern, the demands of people power could be about controlling government
without necessarily having an alternative slate of more efficacious development priorities or interventions,
or even commitment to participation as an ideology.
Nonexistent or weak subnational institutions:
The heritages of nature and/or bad governance may result in glaring regional inequalities in capacities to
manage devolved responsibilities often forming one basis of the demand for devolution. The dilemma is
that decentralizing reform in the face of such initial inequalities could either deepen the inequalities or
lead to a suboptimal operation of the chosen devolution framework.
Transfer of inefficiencies
Where the cause of poor service delivery is unclear, devolution is unlikely to be the solution since national
level bottlenecks are replicable at subnational levels. There must, for instance, be concern not to transfer
national level corruption to subnational
Elite capture:
Related to the transfer of inefficiencies is the risk of replicating national elite capture at devolved levels. A
consequent question would be whether the shift from the mega corruption of the national elite to the
multiplied loci of the petty corruption of subnational elites represents a net saving or cost for service
delivery
Incestuous socio-economic enclaves:
Where devolution creates socio-economic enclaves such as ethnic or religious ones such blinkered
subnationals could undermine the nation-state, raising the aggregated national cost of service delivery.
Inequality deepening:
With varied decentralized capacities to manage the foregoing risks (let alone the devolution enterprise
itself), disproportionately so against the least well off, the reform is likely to deepen inequalities despite
devolution frameworks incorporating affirmative action