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DEVOLUTION OF POWER AND THE NEW STRATEGIC

STATE:
A CASE OF ENGAGED GOVERNANCE AND DELIBERATIVE
DEMOCRACY IN A MULTI-LEVEL GOVERNMENT
IN KENYA

By
Kinyua T. Kihara

2008 MOI UNIVERSITY, ELDORET, KENYA

i
DECLARATION
This research dissertation is my original work and has not been presented to any one else for
examination in any other institution of learning. No part of this research should be produced
without my consent.

Kinyua Timothy Kihara Sign _________ Date___________

Declaration by supervisor.
This research dissertation has been submitted for examination with approval by my Moi
University supervisor.

Mr. Mutakha Kangu Sign ______________ Date______________

ii
DEDICATION
I whole-heartedly dedicate this project to my beloved parents and my dear sister whose
selfless support and word of encouragement have been a great source of inspiration. Not
forgetting, all who assisted in making this writing a success.

iii
ACKNOWLEDGEMENT
The successful completion of this research is the result of support from several sources and I
wish to acknowledge the all.

First, my success in completing this study is due to the almighty God, who gave me the
courage to face the different challenges in getting information needed for the study.

Special thanks go to Mr. Mutakha Kangu, my supervisor for his advice and stimulation of
ideas during my research period.

I acknowledge with appreciation my dear parents for their unlimited and unwavering support
during the entire period of my studies.
Immeasurable gratitude goes to my beloved friend Martin who has been such a tower of
encouragement and determination all along.

I also acknowledge the support I received from all the respondents in the area of my study,
my friends, colleagues and all those people not mentioned here whose invisible hands
facilitated successful completion of this research.

My sincere gratitude goes to the management and staff of Moi University for their support,
guidance and conducive learning environment they provided during the entire period of my
studies.

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ABSTRACT
The purpose of this dissertation was to identify and propose mechanisms for establishing and
enhancing good governance in Kenya through devolution of power in a multi level
government.
The specific objectives included reviewing the performance of existing structures of
governance as well as their historical origins in the Kenyan context from the colonial pre-
independence period through the post-independence epoch of single-party and multi-party
eras which indeed uncovers glaring pitfalls and inadequacies of the current constitutional
dispensation to ensure good governance in Kenya due to its highly centralized political power
structure evident in its creation of an all powerful executive president.

The study then follows this up with a breakdown of the provisions of the Bomas Draft
Constitution of 2004, which is key among the various constitutional-overhaul measures
proposed as an antidote to the governance woos, on the issues of devolution of power and
relations between the various levels of government in its proposed four-tier government
structure and between its main political institutions at the national level including the
President, Prime minister, Cabinet and the Bicameral Parliament.

In seeking validity and reliability, the researcher makes a comparative analysis of a broad
array of various multi-level systems of government around the world examining the
circumstances and their peculiarities in their approach to and adoption of the doctrine of
subsidiarity and devolution of power.

The study then finally culminates with an impressionistic multi-level government model for
Kenya proposed by the researcher which like the one proposed in the Bomas Draft seeks to
devolve state power extensively between different levels of government as well as between
national political institutions including the president, prime minister, cabinet and a bicameral
legislature but unlike the 2004 Draft it comprises two-levels of government; the national level
and a sub national level composed of regional metropolitan governments comprising a hybrid
dual system of semi autonomous meso-forums at the constituency level and an amalgamation
of urban authorities and their frontiers to form metropolitan governments.

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Table of Contents
PREFACE...................................................................................................................................x

CHAPTER ONE....................................................................................................................1

INTRODUCTION......................................................................................................................1

TOWARDS A PERSPECTIVE..........................................................................................1

Overgovernment and government overload...........................................................................1

Legitimacy deficit..................................................................................................................1

Fiscal crisis.............................................................................................................................2

Social limits to growth...........................................................................................................2

i.Deconcentration...................................................................................................................3

Delegation..............................................................................................................................3

Devolution..............................................................................................................................3

Delocalisation.........................................................................................................................3

ii.Legitimacy and recognition................................................................................................4

Deliberative democracy..........................................................................................................4

Performance...........................................................................................................................4

Direction.................................................................................................................................4

Accountability........................................................................................................................5

Fairness...................................................................................................................................5

GENERAL OVERVIEW ..................................................................................................5

iii.Public service delivery.......................................................................................................6

Public finance arrangements..................................................................................................6

Rebuilding state capacities and institutions............................................................................6

CHAPTER TWO....................................................................................................................8

GOVERNANCE IN KENYA: A COMPREHENSIVE REVIEW.............................................8

ANALYSIS OF THE CURRENT CONSTITUTIONAL HERITAGE..................................8

Pre- Independence Colonial Administration......................................................................8

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Post-Independence Political Epoch..................................................................................11

Multi-Party Era.................................................................................................................17

CHAPTER THREE..............................................................................................................20

ANALYSIS OF THE FEDERALIST 2004 BOMAS DRAFT ................................................20

The Bomas Draft 2004.........................................................................................................20

Executive Authority..........................................................................................................20

Representation and Legislation........................................................................................22

Devolved Government.....................................................................................................25

Controller of the Budget...................................................................................................27

Auditor General................................................................................................................28

CHAPTER FOUR................................................................................................................29

COMPARATIVE ANALYSIS: ENGAGED GOVERNANCE AND THE CONCEPT OF


SUBSIDIARITY......................................................................................................................29

Subsidiarity...........................................................................................................................30

Subnational governance in Spain and Italy..........................................................................33

Subnational governance in Portugal.....................................................................................35

Subnational governance and public sector reforms in Japan...............................................36

The Penchayati Raj engaged governance and Partnership model in India...........................38

CHAPTER FIVE..................................................................................................................41

RECOMMENDATIONS: A MODEL GOVERNANCE STRUCTURE FOR MULTI-LEVEL


GOVERNMENT IN KENYA..................................................................................................41

Executive Authority..............................................................................................................42

President...........................................................................................................................42

Prime Minister..................................................................................................................45

The Cabinet-government..................................................................................................45

Central Public Bureau......................................................................................................46

Legislation and Representation............................................................................................47

Bicameral Parliament.......................................................................................................47

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Bureaucracies.......................................................................................................................56

Central Public Bureau......................................................................................................57

Government Ministries.....................................................................................................58

Government Agencies......................................................................................................59

Devolved Government Structure..........................................................................................60

Sub-national Governance.................................................................................................60

The Strategic State...............................................................................................................64

Community Development Committee.............................................................................65

Quasi-Government Organisations (QUANGOS).................................................................67

Auditor General....................................................................................................................68

Comptroller General.............................................................................................................68

Ombudsman.........................................................................................................................69

BIBLIOGRAPHY....................................................................................................................70

LIST OF STATUTES
Constitutional (Amendment) Act No. 38 of 1964

Constitutional (Amendment) Act No. 40 of 1966

Constitutional (Amendment) Act No. 16 of 1966

Constitution (Amendment) Act No. 45 of 1968

Constitution (Amendment) Act No. 7 of 1982

Constitution (Amendment) Act No. 14 of 1986

Constitution (Amendment) Act No. 4 of 1988

Constitution (Amendment) No. 2 Act No. 12 of 1991

Constitution (Amendment) Act No. 6 of 1992

The Bomas Draft 2004

The Chief’s Authority Act

The Public Order Act

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ix
PREFACE
Since time immemorial secular authority i.e. state government has been accepted as a
necessary evil than as something desirable. This is especially because the alternative being an
anarchic state of affairs is less palatable.
Therefore the grudging acceptance of government has with it the ever-present suspicion by
the governed resulting in the pre-occupation about potential abuses and the attendant clarion
calls for enhanced controls and supervision of the government.
It is this prevalent state of paranoia that makes it impossible for a government to peacefully
co-exist without the requisite legitimacy from the governed. Contemporary governments have
thus found it imperative to derive their legitimacy from the public through various means
including constitutional procedures by which they are elected or appointed, the quality of the
services they deliver and by their demonstration of fairness and the rule of laws.
However, political authorities are still likely to encounter great difficulty in enforcing their
decision if such decision is arrived at without due regard to broad participation and
representation of the people. This is a stark contrast to past practices where the state played
the dominant role in governance and public service delivery with the leaders monopolizing
decision-making resulting in myopic governance practices.
Contemporary statecraft requires the state to develop an interactive regime with the citizen,
which is in recognition of the fact that the institution closest to the public is best placed to
deliver services well adapted to the needs of the populace.
This therefore calls for the devolution and reformation of the state authority and institutions,
as we know them to rather nimble, more participative and more responsive outfits.
In effect devolving state authority should not essentially have to mean the elimination of the
central government but the demise of big government and the emergence of a lean new
strategic state.
The devolution of power is characterized by devolution of authority to bureaucrats and
citizens in an interactive forum under the tutelage of a more independent efficient, informed
and involved legislature.

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CHAPTER ONE

INTRODUCTION
The request of the governed to governments is as modest and reasonable as that which
Diogenes made to Alexander:
“Stand out of my sunshine.”
The governed have no need of favour, they only require a secure and open path.
This is to be found in the rationale behind governance, which is to facilitate and stimulate
private sector activities through a public service delivery system that is responsive,
appropriate, efficient and lean.
This is only possible in a devolved structure of government that incorporates broad
participation and involvement of the citizenry in policymaking and implementation for proper
articulation of the needs of the citizen. This is in stark contrast to the interventionist mode of
governance which has minimal input from the citizen yet is characterized by a very elaborate
and comprehensive government machinery thus an intrusive rather than an inclusive state.

TOWARDS A PERSPECTIVE
Kenya is facing a governance problem which is traceable to a tradition of big brother
governance practices where institutions and control of government is exclusive to the
governing elite who exercise unfettered executive powers on a rather bloated and bulky,
highly intrusive and comprehensive state machinery including for instance the provincial
administration. This has served to constantly isolate the citizenry in decision-making thus the
failure to properly articulate the needs of the people, which has resulted in a government that
is unresponsive and inefficient.
As such the current state governance inadequacies and excesses in Kenya may be narrowed
down to the following1:
Overgovernment and government overload
The apparent big brother state model in Kenya is an inept leviathan unable to do much to
meet the demands of the citizenry satisfactorily, which as a result has triggered a state of civic
rebellion characterized by weakened citizen compliance to state demands, civic indifference
coupled with widespread disillusionment.
Legitimacy deficit
1
OECD (2001) ‘New Governance, Subsidiarity and the Strategic State.’ Governance in the 21st Century p197.

1
This is characterized by a cynical public, which has lost faith in the moral as well as technical
ability of the state in dealing with the issues affecting the public and thus the subsequent
citizen disaffection and indifference to the state.
Fiscal crisis
This is manifested in the apparent lack of capacity of the state to reconcile its dual obligation
of assuaging social difficulties and fostering capital accumulation without the generation of
unbearable fiscal deficits and the usual reliance on the much-maligned donor funding.
Social limits to growth
This is typified by our social organization that is premised on liberal capitalism, an ideology
founded on individualism and is the bedrock of democratic ideals and pursuits due to its
emphasis on liberty and choice.
However, as much as this ideology promotes free enterprise thus nurturing innovation and
industry, it also is responsible for unequal and inequitable distribution of resources both
material and symbolic, calling for government intervention and regulation of private sector
activities.
Government intervention and regulation of private sector is generally through the
redistribution of the resources to reduce inequality, which more often has resulted in the
shackling of the productive capacities of the economy while paving the way for claimant
politics where citizens have come to define the state in terms of claims they could make on
it2.
This can be blamed on the rather exclusive and elitist brand of politics that is currently in
play where the citizen does not have a recognized voice in substantive public matters and his
dignity only resides in the fact that he has claims thus the incredibly clumsy zero-sum high
stakes game that is Kenyan politics that results in the myopic and unwieldy governance
practices.

There is therefore a need for a paradigmatic shift from the interventionist state to a more
responsive, integrative and interactive state of a developed multi-level government structure.
It is in the backdrop of this realization that decentralization of institutions of governance has
been touted as one of the basic tenets of democratic governance.

2
Supra note 1

2
In this regard, decentralization has been used as a generic term in reference to various
measures employed in the truncating and the subsequent demise of the big brother state
envisaged in an ideal framework of good governance which include3:
i. Deconcentration
This term is made in reference to the process of administrative decentralization where the
central government designs a structure enabling its agencies to work closely with the local
people.
Delegation
This term refers to the transfer of responsibilities from the central government to semi-
autonomous bodies that are accountable to the central government.
Devolution
This involves the process of transferring decision-making and implementation process,
functions, responsibilities and resources to a legally constituted and popularly elected
institution of governance.
Delocalisation
It is the spatial distribution of the central government social development facilities and
activities such as schools, hospitals etc. in peripheral areas.

The rationale for decentralization is that power over the production and delivery of goods and
services should be handed over to the lowest unit capable of dealing with the associated costs
and benefits4.
This rationale is based on the principle that the institutions closest to the citizen are the most
likely to meet and properly articulate needs of the citizen with the central state institutions
playing a facilitative role.
This therefore calls for the dismantling of the highly centralized vertically hierarchical top-
down governance model typical of the big brother state to be replaced by a more participative
and collaborative mode of governance in a bid to remobilize citizen commitment to the
achievement of common interests at the local level in which case the resultant communal
synergies may be redirected and harnessed for determination and achievement of national
aspirations.
3
Nikolav, D. ‘Decentralisation and decentralized governance for enhanced delivery of services in transition
conditions.’ Enhancing trust in government through leadership capacity building (2006) UNDESA/ DPADM/
GPAP, p3.
4
Katalin, T. ‘The Impact of Decentralisation on Social Policy’, LGPAI/OSI, Budapest, March 2003.

3
This is only feasible in an engagement process that is embodied in large-scale policy task
involvement of groups, individuals and civil societies where power is redistributed through
shared decision making responsibilities exemplified by task interdependence between various
levels of government from the national to the grassroots level5.
Such engagement process affords the citizens equal participation in a representative
democracy as well as opportunities to shape the public interest.
This mode of governance may be encapsulated and be referred to as engaged governance.

Engaged governance is an approach to governance that is premised on political equality and


the public good through the embodiment of the principles of good governance which
include6:
ii. Legitimacy and recognition
This involves the upholding and protection of the right of every person to participate in
decision-making whether directly or through intermediaries that represent them and their
intentions.
Deliberative democracy7
This includes consensus building in the drive for consensus, which is meant to mediate
differing interests in the national best interest on policies and procedures.
It involves broad participation through informed dialogues and negotiation around matters of
policy.
Performance
It is the nurturing of sustainable development and optimal performance through a responsive,
effective and efficient institution and processes that produce results, which are tailor-made to
meet the needs of all stakeholders while making the best use of available resources.
Direction
It is envisaged in the resultant shared understanding of the political, cultural, social economic
realities informing the making of the decision due to the broad composition of actors on equal
engagement terms.
5
Guthrie, D. ‘Engaged Governance: an institutional approach to government-civil society engagement.’
Engaged Goveranace UNDESA, EGM, Sri Lanka, December 2003 p22
6
Graham, J. et.al (2003) Principles of Good Governance in the 21st Century. Institute on Governance Policy
Brief No. 15
7
Etzioni, A. (1996) The New Golden Rule; Community And Morality In A Democratic Society. New York,
Basic Books.

4
Accountability
The institutional framework makes the decision makers have some form of accountability to
the public as the primary stakeholders thus upholding value-driven governance.
Fairness
This is embodied in the rule of law, which is cornerstone of good governance practices in a
mass democracy.

GENERAL OVERVIEW
Devolution of power has been a subject of intense debate in recent times in Kenya. This has
been as a result of successive governments reneging and thus shortchanging the populace on
the promise of delivering on good governance. This has led to an agitated and disillusioned
citizenry-crying foul, thus resulting in persistent calls and suggestions for methods and
mechanisms of holding government accountable to the people.
Such mechanisms and methods include constitutional checks and balances, which have
informed the drafting of various proposals as replacements for the current constitution.
Among the proposed constitutional checks and balances is the devolution of the highly
centralized unwieldy hierarchical bureaucratic state machinery.
Engaged governance in Kenya would be best exercised as an antidote for poor governance in
the government policy cycle8.
Such engagement however, is only possible with the restructuring of authority and
redistribution of power giving rise to a system of co-responsibility between the various
institutions of governance as well as the increase in institutional capability including the
bolstering of adequate knowledge, understanding, skills (technical and social), resources and
opportunity in the institutions of governance especially representative bodies so that they can
engage each other in governance.
Such engagement while helping in allowing greater representation in decision making;
empowering citizens to hold government decision makers to account and increasing
participation in policy determination; will greatly contribute to the collective realization of
substantive policy outcomes and good governance practices9.
8
OECD (2001b) Knowledge Management: Leaving by comparing experiences from private firms and public
organizations. PUMA/HRM p24.
Policy cycle involves production/transfer of information of various types including: strategic knowledge, public
concern, priorities, scientific technical knowledge, evaluation and performance data.
9
Supra note 5

5
Such realization of substantive policy outcomes and good governance practices may be
manifested through a number of ways namely10:
iii. Public service delivery
This is achievable through an integrative policy formulation framework envisaged in broader
participation and engagement between popularly elected representatives and representative
bodies of special interest groups in planning and decision making processes11 where such
participation ensures that public service delivery is consistent and reflective of voter
preferences and public sector accountability.
Public finance arrangements
An integrative policy formulation framework embodying the principle of subsidiarity in the
context of devolved institutional governance ensures accountability and appropriateness, as a
result of their originality, of public programmes to be funded thus avoiding misuse of
resources in impractical projects.
Rebuilding state capacities and institutions12
This is through a consensus oriented approach to governance by a system of co-
responsibilities between institutions of governance and restructuring governance structures to
accommodate and expand participation in policy issues through capacity building.

Good Governance practices


In the framework of engaged governance where decision making is participatory, transparent,
responsive, consensus oriented, equitable, inclusive, effective and efficient decisions will be
taken and implemented in a manner free of abuse and corruption with due regard to the rule
of law.

10
Supra note 3
11
Bickerstaff, K. et.al (2002) ‘Transport Planning and Participation: The Rhetoric and Realities of Public
Involvement’. Journal of Transport geography, Vol.10, pp61-73.
“…inclusive approach in engagement with sectors and actors should be irrespective of political, social economic
or cultural characteristics where organized interest groups are also involved.”
12
Supra: “…lack of capacity to act effectively does reduce the quality of governance regardless of the degree of
organization…. engagement process has a transformative function i.e. enhance capacity of participants to
engage and strengthen the governance system and democracy.”

6
As such the overall objectives of public involvement in government decision-making through
the engagement process of engaged governance model borne by a new devolved multi-level
structure of government may be said to be the ultimate achievement of the following:
• Providing for evidence-based policy and planning13
• A capacity to tap new sources of policy-relevant ideas, information and resources
• A capacity for aligning allocation of resources and service provision with community
needs
• Enhanced risk management in the context of an increasingly vigilant public
• Potential for development of more strategic, long-term partnerships between
government and the citizenry
• Development of civic trust in government and public institutions
• Development of citizenship and civic capacity
• Strengthening of democracy and democratic institutions14.
The achievement of the above will aid in the curtailing of the political shenanigans, which
have proved systemic infecting and embroiling each and every facet of state governance
machinery and are characterised by political rhetoric at one end of the system and a narrow
focus on delivery of public services at the operational end of the governance system in
Kenya.

13
Russell, A. (2000), ‘Regional Policy: Recognising spatial diversity.’ Draft concept Paper. Department of the
Premier and Cabinet Regional Office Network.
14
Guthrie, D. et.al (2003) Overview of the Public Process in the Australian Context. Thailand Australia Capacity
Building Facility for the Royal Thai Government Public Sector Development Commission.

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CHAPTER TWO

GOVERNANCE IN KENYA: A COMPREHENSIVE REVIEW

ANALYSIS OF THE CURRENT CONSTITUTIONAL HERITAGE

Pre- Independence Colonial Administration


The 1885 General Act of the Berlin Conference convened by German Chancellor Otto von
Bismarck on colonization of Africa, stated the territories allocated to European powers
including Britain, Germany, France and Belgium in Africa as their spheres of influence.
In 1895, Britain declared the East African Protectorate, at first limited to the 10-mile coastal
strip. This followed the Sultan of Zanzibar ceding control over the East African Coast to the
British East African Association which was later followed by the Imperial British East Africa
Company (IBEACo) which had the mandate to run East Africa as a British territory.

However, on taking over of administration of East Africa from IBEACo, Britain consequently
proceeded through conquest and law to extend the territory under its control to include British
Somalia, Kenya and part of Uganda as the East African Protectorate. The conquests were
made on the pretext that Britain was merely taking over all “waste and unoccupied land”
lacking any “settled form of governance”.

On annexation, a colonial government was installed with the constitutional framework and
the general legal structure of the colony started taking shape in the early 20th Century.
The newly introduced legal framework was meant to entrench the power and position of the
British as rulers of the colony15.

The colonial constitutional framework was such that, the commissioner, appointed and
answerable to Britain, exercised unfettered executive control in Kenya with power to make
laws and carry them out. However, it was not until 1904 that the governance framework from
which the current structure is based was installed with the exit of the commissioner.
15
Kenya was declared a British colony in 1920 by the Kenya (Annexation) Order in Council. From 1920-1939
the colony used a dual legal and policy frameworks, with Europeans on one hand and Africans and other races
like Asians, on the other.

8
In 1904, a Governor, Executive Council and Legislative Council were introduced. The
Colonial Governor compared to the President in present-day Kenya. The Executive Council
compared to today’s Cabinet and the Legislative Council fit the profile of today’s Parliament.

The Governor served as the head of the Executive Council with power to appoint and
suspend members of the council. The Legislative Council on the other hand, was entrusted
with legislative duties of passing ordinances. However, it was subject to the whims of the
Governor who had wide-ranging powers. He could introduce new laws to the legislative
Council, cancel proposed laws, dissolve as well as prorogue the Legislative Council. He
could also suspend members of the Legislative Council.

Representatives of the Legislative Council were elected on the basis of communal rolls.
However, Africans could only be represented by a missionary or a retired public servant
appointed by the governor.
Lack of representation for Africans led to intense agitation and uprisings like the Mau Mau
armed struggles for independence16. To counter this, the Colonial Government made various
legal and policy concessions as conciliatory overtures to the Africans. Such concessions
included political concessions that sought to address African representation in the Legislative
Council.

The Lyttleton Constitution


Introduced in 1954, the Lyttleton Constitution sought to bridge the racial gap in matters of
governance. It introduced a Council of Ministers replacing the Executive Council. This
Council was made up of the Governor, Deputy Governor, six official members, six unofficial
members and two nominated members.
African representation in the Council of Ministers was envisaged in the unofficial
membership where there were three European representatives, two Asian representatives and
one African representative.

16
African unhappiness, especially on land issues and the Mau Mau uprising caused the enactment of the Public
Order Ordinance which set out to control the conduct of public meetings as well as recalcitrant organisations
perceived as anti-establishment. The declaration of state of emergency in 1952, brought about by the Emergency
Powers Order in Council, now known as Preservation of Public Security Act, vested draconian and wide-
ranging law making powers in the Colonial Governor, including the power to detain without trial.

9
In the legislative Council, the Lyttleton Constitution saw eight Africans elected to the
Legislative Council during elections in 1957.

The Lennox Boyd Constitution


This constitution was enacted in 1958. It increased the number of elected Africans to fourteen
in the Legislative Council. This saw the number of elected Africans in the Legislative
Council equal the number of Europeans. It also made a provision for special election of
twelve members from across all communities by the Legislative Council. The constitution
also established a Council of the State which comprised eight Europeans, four Africans and
four Asians. This Council was meant to act as a protective measure against discriminatory
legislation. The council of Ministers was also enlarged to sixteen and made to include eight
ministers from the Legislative Council.

The Ian McLeod Constitution


It was introduced in 1960 and made various changes for instance it provided for a sixty-five
member Legislative Council, where fifty-three seats were subject to elections using a
common roll. Of these seats, twenty would be reserved on the basis of ten for Europeans,
eight for Asians and two for Arabs. The fifty-three common roll representatives would then
elect the representatives for the remainder of the seats. Which seats would be divided thus:
four for Africans, four for Europeans, three for Asians and one for Arabs.
The Council of Ministers was also made to comprise, four Africans and one Asian.

Lancaster House Conferences


The Lancaster House Conferences of 1960 and 1962 negotiated the independence
constitution where various groups sought to safeguard their respective special interests.
Some parties were simply keen on bringing about independence for Kenya as soon as
possible while others were seeking protection of various other interests. These divergent
approaches to negotiating the Independence Constitution characterized the Lancaster House
Conferences.
The divergent views narrowed down to the issue of making Kenya a federal as opposed to a
unitary state.

10
On the one hand, the settlers, minority ethnic groups under Kenya African Democratic Union
(KADU) and inhabitants of the 10-mile coastal strip supported a majimbo system of
government while on the other; the Kenya African National Union (KANU) preferred a
unitary system of government.
Kenyan Africans from the rather smaller ethnicities were in favour of a federalist, regional
system of governance in the form of the majimbo system for fear of there being a take-over
of their land by the larger ethnic groups. This preference for a regional system of government
was expressed and articulated through the Kenya African Democratic Union (KADU) the
only opposition party then.
On their part, the settlers were keen to make sure their property would be protected under a
new constitution and thus felt that this could only be safeguarded in a regional state.
Concerns as to the way of life on the 10-mile coastal strip resulted in the majimbo
preferences especially in connection with safeguards and guarantees of religious freedoms.

Post-Independence Political Epoch

Introduction
The period following the attainment of independence in Kenya was marked by high
enthusiasm and expectations of a newly independent country.
The Kenya African National Union (KANU) formed the first independence government on
winning the May 1963 General Elections. Though the ruling party felt that building the
nation would be best achieved under a unitary system of government the party eventually
agreed to the regional system proposed by KADU in order to conclude the negotiations on
the independence constitution. The country therefore attained independence with regional
governments under the Independence Constitution17.

The Independence Constitution


The independence constitution provided for a federal system of government incorporating a
bicameral legislature, a Governor-General as Head of State and a Prime Minister as Head of
Government.

17
The Independence Constitution was a compromise document modelled on the Common Wealth paradigm
where the head of state was the Queen, the British Monarch, represented locally by a Governor-General, while
the Prime Minister, who was popularly elected locally, served as head of government.

11
Under this constitution the Governor-General was Head of State on behalf of the British
Queen. He had power to assent to laws passed by Parliament, he determined the composition
of the judiciary and he also could dissolve Parliament. On the other hand, the Prime Minister
was Head of Government and a member of parliament.
The legislature had two chambers i.e. the House of Representatives and the Senate. The
Senate members represented administrative districts while the House of Representatives
consisted of members elected from each constituency by popular vote. The House of
Representatives also consisted of twelve specially elected members.
On regionalization it provided for six Regional Governments and Assemblies having
autonomy over control of land, education, health and the police in their respective regions.
The Royal Constitution Commission was responsible for setting up the present provincial
boundaries as geographical regional units that were to be States or Regions of the Federation.

Immediately after independence, there were a number of important constitutional


amendments which fundamentally altered the independence constitution including for
instance;
Kenya was declared a Republic with an executive president who was also head of state,
government and ruling party on December 12th 196418.

This state of affairs effectively established Kenya with a presidential-system of Government.


Powers that had hitherto been dispersed between the head of state and head of government
were now vested in a single individual, an executive president.
During this period, the bicameral parliament ended with the joining of the House of
Representatives and the Senate into a unicameral parliament i.e. the National Assembly19. The
merger was brought about by a wish to centralize authority in the executive. It was believed
that a unicameral parliament would be easier to manage than a bicameral one.

18
Constitution (Amendment) Act No. 28 of 1964, among other things established the Republic of Kenya; made
the President the Head of State and Government and Commander in Chief of the Armed Forces; gave the
President sole power to appoint and dismiss Ministers and the Vice-President without consultation; and took
away the powers of the Police Commission and the Central Land Control Board, among other constitutional
offices.
19
Constitutional (Amendment) Act No. 40 of 1966 merged the House of Representatives and the Senate into the
National Assembly.

12
Subsequently the Regional Governments which so far had had no intrinsic role in
governance, were also abolished which was followed by full centralization of power in the
central government and the president.

Powers of the President


Under the current Kenyan Constitution, the President is an elected Member of Parliament
representing a Constituency, Head of Government and Head of State, previously was also the
President of the ruling party as well as the Commander in Chief of the Armed Forces of the
Republic20. As a Member of Parliament, he ideally should occupy the Government Front
Bench in Parliament. The Constitution further empowers him to assent to Bills passed by
Parliament to become law. The Independence Constitution provision for the special election
of twelve members in the House of Representative is now vested in the President 21. He has
power to nominate twelve members in Parliament ostensibly for special purposes.
The President can vary the venue where Parliament meets. He may prorogue Parliament for
any length of time or dissolve it altogether22. To do this he requires no consent from
Parliament and acts on his own volition.
The Parliament cannot impeach the President; it can only pass a vote of no confidence against
the Government. Where this happens, the President is expected to dissolve Parliament and
call for elections failure to which, the Parliament stands dissolved on the seventh day after
passing of the vote23.
The President may also bypass Parliament in exercise of his authority as he is empowered to
issue decrees that have the force of law24.
As such the President may rule for as long as three months after dissolution of Parliament or
eleven and a half months where Parliament is prorogued. The president can therefore
constitutionally rule absolutely by decree for up to a year without Parliament.
20
Section 52 of the current Constitution provides for an Executive President acting as Head of State and
Government as well as Member of Parliament representing a Constituency.
21

Constitution (Amendment) Act No. 45 of 1968 substituted the election of twelve Members of Parliament with
the nomination of the twelve by the President.
22

Section 58 the current Constitution empowers the President to open and prorogue Parliament as well as vary the
venue for its meetings whilst Section 59 empowers the President to dissolve Parliament.
23

Section 59(3) effectively dissolves Parliament if it passes a vote of no confidence in the Government.
24
Section 18 of the current Constitution empowers President to issue decrees and circulars having force of law.

13
The President acting alone appoints the Controller and Auditor General. This is
notwithstanding the fact the Auditor-General audits Public Accounts and reports to
Parliament with his findings i.e. the people’s watchdog on public funds25.
As Head of Government, the Kenyan President is an executive president empowered to
appoint Members of the Cabinet which he heads. The President is also vested with extensive
powers of appointments in the public sector. He acts alone when appointing the Head of Civil
Service as well as Permanent Secretaries of the Ministries26. Chairmen, Boards of Directors
and top management in public corporations are all presidential appointees. He appoints
various other high-ranking Government officials including diplomats. All these appointees
serve at the pleasure of the President27.
The President appoints the Chief Justice and the Judges in consultation with the Judicial
Service Commission28. The Constitution further empowers the President, acting alone, to
create and abolish any public office in Kenya at will29. Moreover, every person who holds
office in the service of the Republic of Kenya holds that office during the pleasure of the
President. This includes the Commissioner of Police30, a presidential appointee overseeing the
police force constituting the regular police, Administration Police and the paramilitary
General Service Unit (GSU).

The ‘Big Brother’ State


On removal of the Regional Federal legislatures and subsequent replacement with the
Provincial Administration, Parliament bestowed absolute power upon the President as the
principal officials in provincial Administration i.e. the Provincial Commissioner and the
District Commissioner serve at the President’s pleasure. The Provincial Administration is
very comprehensive and intrusive state machinery that runs from Provincial Commissioner at

25
Section 110 of the current Constitution entrusts the President with the power to appoint the Controller and
Auditor-General.
26
Section 111 of the current Constitution vests the power of appointing Permanent Secretaries of the ministries
in the President.
27
Constitutional (Amendment) Act No. 16 of 1966 gave the President Powers of creating and doing away with
jobs of the Republic and making and terminating appointments to such jobs.
28
Constitutional (Amendment) Act No. 38 of 1964 gave the President power to appoint judges, including the
Chief Justice.
29
Section 24 and 25 of the current Constitution is such that the President has power to create or abolish senior
posts and offices in the Public Sector where the persons holding such offices do so at the pleasure of the
President.
30
Section 108, ibid:

14
the provincial level all the way to the Assistant Chief at the sub location level just above the
village level.
From the sub location to the provincial level, the entire Provincial Administration is
composed of civil servants directly answerable to the President through the Office of the
President. The Provincial Administration also includes the Administration Police, an arm of
the Kenya Police.
The Provincial Administration, with its broad-based network and exclusive composition of
public servants rather than elected officials came in handy for the President as a convenient
tool for furthering personal agendas to the lowest most basic echelons of the Kenyan society.
This marked the advent of the ‘big brother’ state in Kenya.
The District Officers, chiefs and assistant chiefs are appointed by the Office of the President
from a shortlist prepared by a Selection Committee constituted and presided over by the
District Commissioner. The selection by the Selection Committee is an exclusive affair that
does not involve any consultation with the locals in the various administrative localities. The
determination of Provincial Administrative staff by the Office of the President only serves to
impose public administrators on the various administrative units and further alienate the
people from the Government and governance generally as the appointees being aliens to the
areas of their postings meant that they were unfamiliar with the peculiar needs of the regions
they administered.

As such chiefs have been reduced to mere clerks of the district Commissioners via the
District Officer on the goings on at the village level31. This saw a systematic misuse of the
Provincial Administration by successive Governments to stem opposition from the national to
the grass root levels. For instance, successive Governments have been known for their
notoriety in using the Provincial Administration machinery during campaigns to drum up
support for the Government and the President in particular. The same machinery has been
used in the past to intimidate members of the opposition.

31
Previously the Chiefs’ Authority Act, presently the Chiefs’ Act, empowered administration officers such as
District Commissioners to order chiefs to carry out their orders using the chiefs’ powers to make orders such as
those for collection or receipt of money or property from persons; prevention of non-payment of any tax or legal
duty; control of the movement of persons from the area to that of another; supply of baggage animals for use by
government officials e.t.c.

15
The Provincial Administration was also used by the Government to undermine the local
authorities, whose officials were elected, and in most instances acted as a de facto local
government.
For instance, outfits such as the District Education Boards which came under the Provincial
Administration at the district level under the tutelage of District Commissioner received
grants from the State to provide basic education and the relevant learning facilities thus
bypassing the local authorities as the institutions vested with such responsibilities.

The Era of the One Party State


At independence, KADU served as the only opposition party in Kenya. However, KADU was
soon thereafter dissolved after prominent KADU MPs were lured by the Government with
offers of ministerial posts and other benefits in Government. An opposition party in the form
of the Kenya People’s Union (KPU) was formed when the then Vice President Oginga
Odinga resigned from the Government and formed KPU. However, the
“1966 little general elections”32 and the consequent ban of KPU spelt the death knell for
opposition politics and multi-partyism in Kenya.
As such the period from 1969 to 1982 Kenya was effectively a de facto one-party state.
Power was centred on the President and the Provincial Administration with Parliament having
very little or no influence. Despite the fact that the Constitution provided for multi-party
politics however, only one party, KANU, operated effectively during this period.

De jure One Party State33


In 1982, Section 2A was added into the Constitution which legally legitimized the one party
state status that had been prevailing in Kenya since 1969. This was the status quo from 1982
to 1991.
During this period the Government as well as the Parliament was effectively taken over by
the ruling party KANU. As such the line between political party, Government and Parliament
was completely fudged such that there lacked any perceivable distinction between the three.
There was no telling what constituted Government action and what constituted party
operations. This only served to entrench and increase the already draconian powers of the
32
In 1966, on formation of the KPU, Parliament voted to alter the Constitution so that any Member of
Parliament who resigned from the political party which had helped him or her get elected would lose their place
in parliament. This Amendment and the formation of and defection to KPU resulted in the “little general
election” of 1966 where forty-one members of parliament were involved in these elections.
33

Constitution (Amendment) Act No. 7 of 1982 made KANU the only legal political party in Kenya.

16
executive34. The President being head of state and government as well as the ruling party
wielded immense authority over Parliament which was in any case made up of members from
KANU, the only legal political party then. The Parliamentarians were thus subjected to
intimidation and coercion by the state and party machinery especially the dreaded Party
Disciplinary Committee and the Special Branch in order to nip in the bud any form of dissent.
It can thus be aptly put that the President’s hand of steel clothed in legalistic velvet was
palpable throughout the Republic; from the party ranks through the central state machinery
and institutions down to the local village level borne by the imperious Provincial
Administration. This overbearing and highly intrusive state caused a lot of resentment in the
public domain leading to the clamour for multi-partyism in 1989. The Second Liberation, as
it became known, was therefore a culmination of the pent up discontent of the people with the
excesses of the de jure one-partyism. This struggle saw the repeal of Section 2A of the
Constitution and the reversion of single party politics and the restoration of multi-party
democracy.

Multi-Party Era
The demand for the restoration of multi-party politics in the country led to KANU setting up
a Review Committee in 1990 to make suggestions regarding election nomination procedures
for the ruling party following the election debacle that was the 1988 ‘Mlolongo’ elections, the
role of the Party Disciplinary Committee and election rules generally. The Review Committee
however, failed to address the Constitutional issues including the return of multi-party
politics, for which it had received a wide-range of views from the public. This therefore led to
the emergence of civil advocacy groups which assumed the role of advocating for the return
of multi-party politics which contributed to the eventual repeal of Section 2A in 1991 35. The
1992 General Elections were the first truly multi-party elections since the 1963 elections that
installed KANU as the independence Government on emerging victorious then36.

34
The efforts to entrench powers in the Presidency were palpable in the following Constitutional Amendments
i.e.
Constitution (Amendment) Act No. 14 of 1986 removed the protection of tenure from the Attorney-General and
Controller/Auditor-General.
Constitution (Amendment) Act No. 4 of 1988 removed the security of tenure for High Court and Court of
Appeal judges as well as members of the Public Service Commission if they misbehaved or became mentally ill.
35
Constitution (Amendment) No. 2 Act No. 12 of 1991 repealed Section 2A of the Constitution, allowing for the
re-introduction of multi-party politics.
36

17
However, it was soon realized that the return of multi-party politics could not singly serve as
an antidote in the face of wanton excesses by the Government in power. This was as a result
of the anticlimax that was the KANU victory in the 1992 General Elections.
During the multi-party era laws like the Chief’s Authority Act, now the Chief’s Act and the
Public Order Act were used to undermine democratic rights including fundamental rights and
freedoms such as the freedom of association37. Freedom of expression was and is sometimes
ignored with media houses being raided and/or shut down. These among other factors were
responsible for the build up of the pressure for constitutional reforms which was in the belief
that a comprehensive constitutional overhaul was the only sure way of achieving good,
responsive and accountable governance.
The call for constitutional reforms can thus be viewed in the backdrop of the excesses of an
increasingly exclusive, inefficient and unresponsive governance structure supported by bulky
and highly intrusive state machinery.
This is in the context of an unwieldy and highly centralized ‘top down’ government structure
which vested all powers in the President. Therefore, everyone was forced to look up to the
President as the state patriarch thus the patronage networks that characterize Kenya’s political
scene. Tribalism as a result became endemic with public appointments being made on the
basis of political expediency and tribal lineage rather than merit. Efficiency and equity in
public service delivery was replaced with tokenism in the spatial distribution of public
utilities, amenities and services as well as myopia in policy-making.
Due to lack of transparency in the management of public finances and myopia in decision-
making, various policy decisions resulted in wanton wastage of public funds. The list is
endless on the various disturbing distortions in the public sector where evidence of myopia in
policy-making is conclusive as a number of state mega-projects either failed to take-off or
simply proved unsustainable. The Nyayo Pioneer Car Project, for instance presents a very
grave paradigm of policy-making, planning and funding of major state projects where such

Constitution (Amendment) Act No. 6 of 1992 stated that to be elected President, the winner should have at least
25% of the votes cast in at least five of the eight provinces. This was intended to make sure the president had
wide base of popular support. This amendment also limited the President’s term in office to two five-year terms.
37

The Public Order Act required the police to be informed before any public meetings could be convened
including meetings held by any public body; meetings of any registered organisation held for that organisation’s
lawful purposes; meetings held for social, cultural, charitable, educational, commercial, or industrial purposes;
meetings of the organs of a political party held to discuss affairs of the party; and impromptu ‘meet the people’
tours by Members of Parliament and councillors.

18
policy decisions were made behind closed doors and the funds were also channeled in a
rather shrouded manner with no one who could be held accountable. The Nyayo Bus
Corporation, also a multi-million shilling Government proved unsustainable and
subsequently, went under with 101 million shillings of public money still remaining
unaccounted for. Various other rip-offs including the Goldenberg Scandal, Euro-Bank
Scandal, Anglo-Leasing among others have plagued Kenya time and again yet there still
seems to be lacking mechanisms for preventing recurrence of such scandals as well as
mechanisms for bringing the culprits to book by ensuring accountability in the Government.
The end result has been economic retrogression with the failure of major projects which go
under with colossal amounts of public funds, breeding corruption and a quick way for self
aggrandizement of the culprits as poverty steadily creeps in unabatedly for the whole nation.
This scenario typifies mal-governance inherent in the current administrative structure and
thus the need for a comprehensive review of the entire governance structure in Kenya which
is only possible with the complete review of the current Constitution.

19
CHAPTER THREE

ANALYSIS OF THE FEDERALIST 2004 BOMAS DRAFT

The Bomas Draft 2004


This was a compromise draft constitutional document that was arrived at after thorough and
intensive consultations involving a wide variety of stakeholders and the citizens at large that later
culminated in the Bomas Constitutional Conference. It was meant to be the replacement for the
current constitution and is widely regarded as the most acceptable and legitimate draft
constitutional document to date.
It is a direct antithesis to the current constitutional dispensation as it provides for a rather
federalist model of government structure unlike the current one which provides for a unitary
structure of government.
It also advocates for the creation of the office of the prime minister as well as the creation of a
bicameral parliament. Its radical proposals are contained and set out under the following
headings i.e. Executive Authority, Representation and Legislation, Devolved Government.

Executive Authority

President
He is Head of State, Commander in Chief of the Armed Forces and the Symbol of National
Unity38.
His functions include the opening of each newly elected Parliament, signing Bills into law and
signing international instruments on behalf of the State39. He is also vested with the prerogative
of mercy40.

38
Article 152(1)(2)(a)(b)(c), ibid
39
Article 153(3) and Article 135
40
Article 166
The President may appoint and/or dismiss subject to authorisation by the parliament, the Prime
Minister, Deputy Prime Minister, Cabinet, Constitutional office-holders and judges of superior
courts. He also appoints diplomats on the advice of the Cabinet41.
The President is popularly elected by a direct suffrage through a secret ballot42.

The Deputy President


The presidential candidate nominates him as a running mate during elections. Once the
presidential candidate ascends to the presidency on emerging victorious in the election the
running mate becomes the Deputy President43.
The Deputy President is the principal assistant to the President in the execution of the President’s
functions44.
He becomes the Acting President in the absence of or following the incapacitation of the
President; otherwise he carries out functions as conferred by the Constitution or as may be
assigned by the President.

The Prime Minister


The Prime Minister is essentially the leader of the largest political party in the Assembly,
appointed by the President from among members of the Assembly as one commanding the most
confidence of the Assembly45.
The Bomas Draft provides for the Prime Minister to be the Head of Government. He co-
ordinates the work of the Government Ministries; oversees preparation of Government
legislation as well as convening and presiding over Cabinet meetings46.
The Prime Minister is further empowered to make recommendations and nominations for
appointments to public offices. The Premier also exercises executive authority over the Cabinet
where he may allocate and/or transfer functions of the Deputy Ministers and Ministers as well as
Deputy Prime Minister.

41
Article 153(2)(5)
42
Article 156
43
Article 167(2)
44
Article169 (1-3)
45
Article 173(1)(a)(b)
46
Article 172(1-3)
The Prime Minister keeps the President abreast on the developments and the general conduct of
the Government, furnishing the President with any information the President may request in
relation to matters of the Government47.

The Cabinet and the Secretary to the Cabinet


The Cabinet is composed of the Prime Minister, Deputy Prime Minister and the Ministers.
The President appoints individuals from among members of the Assembly who have been
nominated and proposed by the Prime Minister to the Cabinet and the Secretary to the Cabinet,
subject to the approval of the Senate.
The President may dismiss Cabinet members following a vote of no confidence by the Assembly
in a particular Cabinet member or the Cabinet in general or on the recommendation of the Prime
Minister48.
Members of the Cabinet are accountable collectively, and individually, to Parliament for the
exercise of their powers and the performance of their functions as well as administration and
implementation of legislation assigned to them.
Cabinet members including the Prime Minister, Deputy Prime Minister and the rest of the
Cabinet Ministers responsible for Government Ministries, exercise general direction and control
over such Ministries49.

Representation and Legislation50


The Bomas Draft 2004 provides for a bicameral legislature consisting of the Senate and the
National Assembly.

Senate
Consists of elected members from each district with at least two women representatives from
each region and ten members representing marginalized groups and communities which
membership is be determined by electoral colleges of the respective marginalized groups and
communities51.

47
Article 177,180, 181
48
Article 177(5)(6)
49
Article 179(4) and Article 177(4)
50
Chapter eleven, Bomas Draft 2004
51
Article 122(1) a, b, c, d
Membership in the Senate is restricted to two terms whereas election of members is by the
district council acting as an electoral college52.

National Assembly
Consists of, popularly elected members, from each constituency with at least one woman
representative from each district comprising at least a single-member constituency, and fourteen
representatives from marginalized groups and communities whose membership is determined by
electoral colleges of the respective marginalized groups and communities.
Membership in the National Assembly is also restricted to two terms and the popular vote is what
counts in this case53.
Both the Senate and the National Assembly have a speaker each.

Powers and Duties of Parliament


Parliament being the legislative arm of the Government is vested with power to pass Bills into
law on receiving Presidential assent54.
In the exercise of legislative duties, Parliament is to conduct its business in an open manner by
holding its sittings in public. It is also required to facilitate public involvement in its business and
that of its committees55.
In the course of its business, Parliament may for the purpose of the orderly discharge of its
business provide for the powers, privileges and immunities of Parliament and its committees and
members56.

Each House may regulate its own procedure and establish committees for purposes it deems fit.
However, this does not preclude Parliament from establishing joint House committees with
membership from both Houses and jointly regulated procedures of the committees57.

52
Article 122(2)(3)
53
Article 123(1)a-d,(2)(3)
54
Article 132(1)
55
Article 144
56
Article 145
57
Article 142(1)a-b, (2)
A Bill may be introduced by any parliamentary member, committee and may originate in either
House which Bill must outline any constitutional implications it may cause including any
limitations and derogation of any fundamental rights and freedoms58.
A Bill passed by Parliament can only become law on being assented to by the President. A Bill is
passed by Parliament if it passes in both Houses in which case the Speaker presents it to the
President from the House in which it originated within seven days of it being passed59.
On passing of a Bill by either of the Houses, the Speaker of either House shall refer it to the
Speaker of the other House for introduction, consideration and passage60.
Rejection of a Bill by either of the Houses defeats the Bill. However, a Bill passed in one House
may be amended before being passed in the other. In such an eventuality, the Speaker of the
originating House shall call for a second vote on the Bill as amended. If the Bill is not passed in
its amended form in the originating House, Speakers of both Houses shall set up a Mediation
Committee composed of joint membership61.
The Mediation Committee is to agree on a compromise text of the Bill before subjecting it to a
vote of approval on the floor of both Houses. On approval, the Speaker of the originating House
shall present it to the President for assent within seven days. However, if the Mediation
Committee fails to reach a compromise or either House rejects the compromise text, the Bill is
defeated62.
As a people’s watchdog, Parliament or any of its committees is empowered to call for any person
holding public office as well as private individuals to appear before it for examination.
Parliamentary committees reserve the discretion to co-opt any member of parliament or employ
qualified persons to assist in the discharge of their functions.
Both Parliament and Parliamentary committees are vested with powers of the High Court in
enforcing attendance of witnesses and their examination on oath, affirmation or otherwise;
compelling production of documents and issuing a commission or request to examine witnesses
abroad63.

58
Article 132(2)(5-7)
59
Article 134(2)
60
Ibid, 134(1)
61
Ibid, 134(3)(6-7)
62
Ibid, (7-10)
63
Article 143
Devolved Government64
The Bomas Draft 2004 sets out the objects for devolution and the subsequent devolved
government as being to enhance broad participation in governance, subsidiarity, better
performance and appropriateness in public service delivery and equitable distribution of state
resources and services in the country65.
As such it creates regional governments to co-ordinate the implementation of programmes and
projects at the sub-national level and a Senate institution of Parliament for participation of
regional governments in formulation and enactment of national legislation66.
This is in line with the views and recommendations collected from the public by the Constitution
of Kenya Review Commission that culminated in the National Constitutional Conference held at
Bomas of Kenya and thus the Bomas Draft Constitution 2004.
The Bomas Draft proposes a Four-tier Government consisting of the National government,
Regional government, District government and the Locational government. Each level of
government is semi-autonomous in the exercise of its authority over its designated area of
jurisdiction67.

National Government68
The National government consists of the Executive, Legislature and the Judiciary as well as the
public service and the public sector generally.
The functions of the National Government include standard-setting and regulatory functions;
national level macro-planning, policy and infrastructure as well as public service management;
facilitation and co-ordination of sub-national operations in line with national aspirations.
The National Government plays the role of standard-setting in respect to police recruitment, legal
framework, professional services, labour standards, social security and professional pension
plans, education policies and standards of curricula and examinations as well as the issuance of
currency and the regulation of the financial sector.

64
Chapter 14, Bomas Draft 2004
65
Article 206(1)(c-h)
66
Article 207(2)
67
Article 209(1)
68
The Fourth Schedule, Part I, Bomas Draft 2004
With regard to national level macro-planning the National Government is responsible for
national economic planning and policy. The foreign relations i.e. foreign policy and international
trade fall within the jurisdiction of the National Government. This follows for the monetary and
housing policies as well.
The National Government is responsible for macro-level infrastructures and institutions
including national health referral institutions, national institutions of higher learning i.e.
universities and tertiary educational facilities and the transport and communication infrastructure
such trunk roads, airports, harbours and telecommunication services and national public works.
In its role as facilitator and co-ordinator, the Government is charged with the duty to integrate
local sub-national planning with the national system for overall consistency and strategic support
of the sub-national initiatives as a result of external reach of national support mechanisms and
resources.

Regional Governments69
The regional government consists of a regional legislature and executive under a regional
premier and deputy premier.
The regional government is primarily responsible for sub-national planning and policy
formulation and guidance.
It plays a supervisory and facilitative as opposed to an executory role at the sub-national level. It
coordinates and supervises the implementation of national as well as regional policies and
standards i.e. it acts as a prefecture. This is through the formulation of regional policies and
planning, the setting of regional standards and the monitoring and evaluation of implementation
practices as well as facilitation and harmonisation of such operations through capacity-building
and technical assistance to the districts.
It is also vested with the duty to develop, operate and general maintenance and delivery of
regional services and infrastructure.

District Government70
It consists of the district council, district executive committee, district governor and deputy
district governor.

69
Ibid, Part II
70
Ibid, Part III
The district government is a semi-autonomous entity whose territorial jurisdiction is the district.
At the district level, the district government is responsible for the delivery and provision of
public services, infrastructure, amenities and utilities. These include health services and facilities,
transport infrastructure, basic education (elementary, secondary and special education) facilities,
public works (water and sanitation services) as well as police and fire fighting services and
disaster management.
The district government may implement national government policies as well as district planning
and development initiatives. It is also vested with the power of trade regulation and development
through issuance of trade licences, ensuring fair trading practices, establish markets and
superintend local tourism and co-operative societies.
It also has the responsibility of developing the administrative capacities and participation of local
communities in consultation with locational governments for effective exercise of the powers
and functions in participatory governance at the local level.

Locational Government71
It is composed of the locational council and the locational administrator for the promotion of the
self-determination and development of communities in the location.
To achieve its objective it is entrusted with the following functions including initiating, planning,
implementing and co-ordinating local community projects, activities and services; applying, and
co-ordinating the application of funds available from any source for the purposes of such
projects, activities and services; implementing, within the locality, projects planned at the
district, regional or national levels of government; implementing, within the locality, laws of the
nation, region or district; and generally fostering the integrated and participatory self-
management of local affairs by local communities.

Controller of the Budget


Appointed by the President on approval by the National Assembly, he oversees the
implementation of the budgets as approved by the different levels of government72.
The Controller is thus charged with the responsibility of ensuring that public money is spent as
per the appropriation and allocation, providing accounts of actual, as opposed to budgeted,

71
Ibid, Part IV
72
Article 256(1)
expenditure, being the technical advisor to Parliamentary finance committees and working
closely with the Treasury, departments and ministries73.
The Controller submits an annual report on the operations of the office of Controller of Budget
within two months after the end of the financial year74.
The Controller acts independently in the execution of his duties.

Auditor General
Charged with the responsibility of auditing the accounts of the Government and devolved levels
of government and state corporations, the Auditor-General confirms all public money
appropriated, raised and disbursed by any level of government has been applied to the purpose of
its appropriation; that the expenditure conforms to the authority that governs it and that the use of
the money was economical, efficient and effective75.
The Auditor-General submits an annual audit report to Parliament on his findings using the
abovementioned considerations as indicators to determine financial probity in the public
offices76.

73
Ibid, (4)(a-d)
74
Ibid, 256(5)
75
Article 257(4)(a-c)
76
Ibid, 257(5)
CHAPTER FOUR

COMPARATIVE ANALYSIS: ENGAGED GOVERNANCE AND


THE CONCEPT OF SUBSIDIARITY
Engaged governance is an integrative framework of governance incorporating various
components of engagement practices including an inclusive outlook through broad participation
and representation, responsive public sector and a result-based management.
Inclusiveness is reflected in the involved participation of any citizen, irrespective of political,
social, economic or cultural characteristics or organized interest groups in governance. Such
participation may be envisaged in the representation of common interests through a more
organized entity sharing the same intent i.e. group representation77.
Responsive public sector should entail political commitment to people-centred as well as pro-
poor policies and partnership models.
People-centred policies78 should address community aspirations, needs and benefits as well as
sustainable human development where the public service administrators help citizens articulate
and meet their shared interests.
Pro-poor policies79 include affirmative action by governments biased in favour of benefitting the
poor. It involves participation of the poor in poverty analyses and opportunities for the poor to
77
Morbray, M. (2003) “War on Non-profits: NGOs what do we do about them?”,: It is worth noting however the
enormous trust and confidence that many members of the general public place in some of the high profile advocacy
organizations.
78

Denhardt, R.B. et al (2000) “The New Public Service: Serving rather than Steering” pp. 549-560: People-centred
policies push concepts and issues, based in political and social science into administrative focus which redefines the
role of the administrator from controlling or steering to enabling.

79
Deolikar, A.B. et al (2002) “Poverty Reduction and the role of Institutions in Developing Asia” p.8: Effective
pro-poor policies address complex nature of poverty on a number of levels including macro-economic and social
policy formulation through linking upstream to mega-dialogues around poverty and multi-sectoral inputs into
macro-economic policy and downstream to resource allocation and monitoring of service delivery and local poverty
reduction impacts.
express their needs and identify existing strengths and resources considered key in redirecting
government actions in favour of the poor. Such participation is critical to understand the genesis
of the poverty and charting the way forward at the local, regional national strategies.
Partnership models are generally government-sponsored initiatives intended to harness as well as
bring together local realities and expert knowledge, experience and skills to get the best value in
the public interest. This may be through area-based partnerships or policy partnerships80.
Result-based management is achieved by the linking of local interim results and outputs with
state level outcomes sought by the government on behalf of its various regions and the nation as
a whole. This requires an effective feedback mechanism acting as an interface between the state
level actors and the local level actors as well as good quality comprehensive but timely
indicators and monitoring systems to stimulate constant improvement efforts in increasing
efficiencies and productivity in the system. An open interactive channel with ample provision for
dynamic monitoring from above and continued feedback from below is vital in result-based
value-driven governance set up.

Subsidiarity
This is a principle in social organization where functions which subordinate or local
organizations perform effectively belong more properly to them than to a dominant central
organization. As such power should devolve to the lowest, most local and capable unit at which
decisions can reasonably be made with the function of the larger unit being to assist the local
body in carrying out its tasks. In essence, subsidiarity reduces the vertical hierarchical power but
increases in a meaningful way the potential for participation.
This requires the state to develop an interactive regime with the citizenry to promote the
emergence of a participatory society where freedom and efficacy come from the fact that the
individual has a recognized voice in the forum on matters of substance and procedures in the

80
Paquet, G. (2001) “The New Governance, Subsidiarity and the Strategic State” p.197: The new institution
requires the government to be satisfied with providing a problem setting, with framing the context of the situation
and the boundaries of public attention, while allowing the bureaucrats and citizens to use a lot of their tacit
knowledge and connoisseurship to deal with specific situations, and to arrive at decisions on the basis of a
“reflective conversation with the situation”.
public realm, and, more importantly, an obligation to participate in the definition of such
matters81.
This process of ministering to the public and of delivering a service well-adapted to its needs
must be devolved to the local level. This realization has seen the significant growth and
development in importance of regions as units of governance in contemporary statecraft and thus
the rise of the multi-level system of governance. This is evident in the trend for countries to
decentralize authority to lower governance tiers, such as regional and local authorities82.

Subnational governance in Greece


Greece suffered a military regime between 1967 and 1974. Upon restoration of democracy in
197583, the Greek Socialists, PASOK assumed power and submitted an aid memorandum based
on the country’s “specific” profile.
The memorandum, notably the 1983-1987 Five-Year plan aimed at establishing a model of
regional planning and policy, where ‘bottom up’ endogenous local development strategies were
to be combined with ‘top down’ financial discipline.
Two stabilization programmes in 1987 and 1991 and adaptation through the EU Cohesion Policy
addressed the absence of planning for policy, the narrow engagement of society in governance
and the reform of the state, which had then evolved into an over-centralized entity of gigantic
proportions and reach mainly located within the capital84.

81

Ibid, pp.189 and 195: This leads to a more distributed governance that deprives the leaders the monopoly of
governing organizations with everyone taking part in the conversation such that the citizen is not confined to living
in a rights-society where the dignity of the individual resides exclusively in the fact that they have claims.
82
Paquet, R.D. et al (1999) “Making Democracy Work: Traditions in Modern Italy”, Princeton, Princeton University
Press: This new pattern has vested infra-national communities with new powers, building on new principles of co-
operation/competition within and across national boundaries, and has been rooted in new capabilities that are much
less state-centred.
83

The military regime fell on deployment of Turkish troops in the northern part of Cyprus.

84
The Greek case was one of a highly ’top-down’ process of change, a high degree of misfit and a gradual
convergence between rhetorical endorsement of European integration discourse and practice and institutional
internalization in terms and norms, rules, regulations and policies.
This was done through the introduction of the new concept of subsidiarity i.e. decentralization to
the appropriate governance level.
Initially, beyond the formal administrative structure of the 55 prefectures (Nomi), run at the time
by government appointees, aided by local government representative organizations, the entire
territory was divided into six. However, the 1983-1987 Five-Year plan provided for 13
administrative regions called Perifereies85. Each region would be headed by government-
appointed General Secretary; a direct representative of the government responsible for
implementation of government policy in the region and who chairs the Regional Council
composed of the central state and local government representatives having planning
responsibilities only and supported by locally based field administrative organization as part of
the national public administrative structure. These reforms have led to a shift from a rhetorical to
structural internalization of policy outlook, objectives and instruments86.
The subsequent, development in subnational governance of election rather than appointment of
regional officials instituted in 1994 has led to a significant overall re-arrangement of the centre-
periphery relationship to the benefit of Greek regions87. This has been in step with the social
evolution that has established non-governmental organizations and interest representation groups
in national policy determination and governance. For instance, the national policy-making
85

This was after the first IMP (Integrated Mediterranean Programmes) Law 1622/86 on “Democratic Planning,
Regional Development and Local Government”, which was part of the legislation comprising the 1983-1983 Five-
Year plan became operative.

86
Mitsos, A. (2001) “The Community’s Redistributive and Development Role and the Southern European
Countries”, p307,314: This delimitation formed the basis for planning and implementation of regional
programming under the three CSFs (Community Support Frameworks) of 1989-1993,1994-2002 and 2000-2006.
87

This was as a result of the modernizing impact of the EU that enabled Greece address earlier policy inconsistencies
and develop a host of new government policies where the regional policy featured emphatically in those as new
operational units of special remit were created to take on specific tasks for further improvement in managerial and
operational independence and expertise on behalf of the public sector. This was in addition to the liberalization of
the economy by disbanding of a plethora of regulations hindering competition, the independence of the Bank of
Greece, the liberalization of the banking system with the divestment of state-owned financial organizations, foreign
investment, incorporation of EU legislation on transparency and the unimpeded operation of markets through
regulation.
process began to offer a podium to the economy and society as major pressure groups and socio-
economic associations, such as the Union of Greek Industrialists (SEV) and the General Labour
Confederation (GSEE) were invited to come up with formed policy and even started producing
their own regular policy reviews and recommendations.

Subnational governance in Spain and Italy


Italy, achieved democratic status by 1949 against backdrop of Fascist autarky before the Second
World War. However, despite this favourable start in the 1950s the delimitation of
underdevelopment within Italian territory remained sharp and coherent88. While regions at the
north and centre-north of the country benefitted from economic expansion, the Italian south, the
Mezzogiorno, was characterized by mass migration to the northern regions and central Europe as
well as significant socio-economic disparities in contrast to the north89.
Italian policy-makers pioneered a new approach for a re-organized regional policy based on
structural funds (SFs) conceptualized in the following path of evolution for local communities in
new development trajectories no longer based on the internal rigidities and inefficiency of the
Italian governance structure90.
The new Structural Funds regulations defined the manner in which the European Union
Cohesion Policy would be implemented to include the principles of partnership, additionality,
concentration and programming.
88
Roccas et al, (2001) “Economic Change and Democratization in Southern Europe”, p31, and 36-40:
Italy opted very early for the external orientation of its economy and proceeded with trade liberalization,
participation in the set up of European organizations and a strong investment and export activity. These
developments rested on an earlier intense phase of industrialization at the start of the 20th century facilitated by the
pursuit of orthodox monetary and fiscal policies, lack of militancy in industrial relations, sizable rises in productivity
and private savings as attributes of the Italian domestic socio-economic framework.
89

Leonardi, R (1995) “Convergence, Cohesion and Integration in the European Union”, London, Macmillan pp141-
143, 144, 146, 159-163
Putnam, R. D. et al (1993) “Making Democracy Work: Civic Traditions in Modern Italy”, Princeton, Princeton
University Press pp121-148
90

Leonardi, Ibid: The 1960s were marked by centre-left coalition governments which did not address urban socio-
economic challenges emerging as a result of growth, noted principally in education and housing and in the need for
further economic liberalization.
Partnership entailed consultation and policy-making among central, subnational governance
structures and socio-economic partner organizations as well as the European Commission giving
rise to the multi-level mode of governance across the periphery.
Additionality prescribed the financing of the programme through state public and private funds
as well as EU structural funds reflecting a new tripartite collaborative structure.
Concentration and programming required the preparation of development plans by the state for
regional or nationwide (sectoral) reference addressing areas with highest potential for growth
through the Single Programming Documents (SPDs). The SPDs took into account the national
Community Support Framework (CSF) for the southern periphery where entire or large parts of
the territory had a per capita income of less than 75% of the EU average.
Under the CSF, the cohesion policy of partnership, additionality, concentration and programming
was to be implemented on a nationwide scale and in individual regions in an integrated manner
over finite periods.
These measures helped reshape the international position of Italy as a cognate member of the
Group of 8 most industrialized nations in the world and its performance and status in the world
scene.

In Spain, the four-decade long totalitarianism under Franco brutally reversed an earlier process
of regionalization until the mid-1970s. On transition to democracy following Franco’s death in
1975, the role of the state in administering growth was very important to the support, rather than
control of the robust economic activity91.
However, a large state bureaucracy that determined resource allocation through the licensing and
approval of investment, foreign exchange transactions and the regulation of credit, interest rates,
taxes and subsidies made for centripetal governance patterns, bargaining politics between
regional and central government and the territorial governance framework. The territorial
governance framework which evolved in a rather unstructured way was characterized by
granting of regional autonomy to the Basque and Catalan national groupings and in an act of
balance extending to all other regions.
91
While the period between 1940 and 1960 featured political isolation, corporatist autarky and introversion, the
1960s saw significant external orientation, international trade and domestic economic expansion.
The Spanish case can be seen as similar to Italy, as the country was equally highly developed due to industry and
transport infrastructure existing before the Great War.
The implementation of the regional policy from 1989-1993 presented no notable redefinition of
the role of the state in regional development. The regional governments were only involved in
policy preparation and not in the final formulation. On the other hand, policy implementation
was faced with programme fragmentation, financial management gridlocks and a lack of co-
ordination among different levels of government92.

Subnational governance in Portugal


Portugal suffered a totalitarian regime under Salazar from 1926-1974. On restoration of
parliamentary democracy in 1976, the economy was subject to statist control by a large
bureaucracy and national economic policies were drafted within a narrow circle of government
officials and large private industrial, financial actors and land owners.
Under the skilled leadership of Prime Minister Anibal Cavaco Silva over two terms of
parliamentary majority and government office otherwise known as “the decade of reforms” saw
the restructuring and reformation of the public sector93. The Portuguese government reformed
field administration and prompted civil society participation in governance. Civil society groups
were consulted, albeit in a limited manner, in drafting nationwide development programmes.
Policy implementation and monitoring were partially devolved to the country’s regional and
municipal governance tiers, whilst central government maintained control.
From 1994-1999, the Socialist government further promoted decentralization to enhance the
country’s economic structure towards tertiary sector through the community support framework
programming on education, competitiveness and infrastructure94. However, further formalization
of regionalism in Portugal came to a halt in 2003 on a negative outcome in a public referendum
on the issue.
92

Regionalization contributed to the disorder in public finances and tax reforms in the context of low growth, crisis in
the banking sector and structural difficulties stemming from the two oil shocks of the 1970s.
93
EU membership provided a backdrop of institutional stability as the fragile democracy headed away from the pre-
accession period that saw nine governments in office.
94

Magone, J. (2001) “The Transformation of the Portuguese Political System: European Regional Policy and
Democratization in a small EU Member State”, pp.122, 123: The role of the European regional policy in the form
of the structural funds was very significant as it was one of the central policies pushing the Portuguese political
system towards a democratic governance system.
Subnational governance and public sector reforms in Japan
The Japanese egalitarian society which was as a result of the post war agrarian land reforms
entailing distribution of land to tenant farmers gave political power to the rural farming
population which at that time consisted of 70% of the national population taking part in national
elections.
The post-war regional development in Japan featured change in the traditionally centralized
governance framework as well as high economic growth and development of social care.
Change in the traditionally centralized governance framework and the introduction of a new, dual
representation (mayor and council) electoral system at the local government i.e. mayors were
elected by the local councils, composed of members elected by voters95.
During the post-war recovery and the attendant high economic growth and development of social
care, the national government through industrial infrastructure builds, invested in rural areas to
correct regional inequality as a response to the voting powers of the rural population. This
regional development programme was implemented by the central bureaucracy through various
long-term economic development plans. In the 1970s however, it became apparent that the
infrastructure programme had led to environment degradation and urban sprawl in the regions96.
The national government put together the Comprehensive National Development Plan (CNDP)
as a regional policy instrument which created the ground for strengthening of links between
MPs, bureaucracy, businesses and strong interest groups e.g. farmer’s co-operatives. However,
the favoured status of the rural regions through public works projects attracted criticism from
urban voters who were now the majority due to migration into towns and cities97. In turn, the

95
Kidera, H. (2006) “Agenda Setter and Reform of Local Public Finance in Japan”,: This reform was considered
important by US reformers for the introduction of democracy in post-war Japan and was realized through the
mediating factor of local group and citizen pressure for control over their own environment and the activism of
progressive mayors however the reform proved unsuccessful even in the backdrop of an enabling legal framework
i.e. the implementation of the Local Autonomy Law and a new supportive Constitution.
96

The construction of infrastructure proved rather ineffective as a policy instrument to boost regional economies with
the government suffering accumulated financial deficits due to excessive expenditure in such ventures.
97

During the 1990s, clientelistic politics was used as the strengthening link in rural regions through public works
construction projects but it did not nurture indeginous development in the regions.
Japanese government suffered from accumulated financial deficits due to over-investments in the
previous period. Since 1994, public funding available to Japanese local government had been
deteriorating and special case subsidies from the central bureaucracy have been the remedial
instrument for Japanese subnational governance funding problems. Such subsidies paved the way
for state intervention at the local level to protect partisan interests, chiefly those of the LDP, the
ruling party.
Local governance fiscal expenditure relied heavily on transfers by the central government to
provide for range a of local welfare and utility services (schools, roads e.t.c) which are financed
through local government. The Ministry of Home Affairs was endowed with overall planning of
the local public finance, the estimation and delivery of the total amount of the Local Allocation
Tax to each local government unit. Moreover, through composition of yearly budget and national
accounts, it had a leading position over the determination of treasury disbursements to local
governance.
The local public finance system reforms in 2004 and 2005 introduced by the Koizumi
government also known as “Trinity Reform Package” aimed at reducing subsidies, delegate
revenue-raising powers through taxation and scale down the Local Allocation Tax amounts
awarded to local governance.
The reforms also saw the creation of Council on Economic and Fiscal Policy (CEFP) which was
meant to reflect the views of private sector experts in economic policy. The CEFP expert input
has been a central feature of the Koizumi government politics and policies98. It advocated for a
proposed local finance reform on the reconstruction of the Japan economy and also assumed
powers of the Committee for the Promotion of Decentralization that had worked on the
delegation of powers to subnational governments in the 1990s. A new consultative institution,
“Deliberative Body of the Central Government and Local Municipalities” was established in late
2004, where ministers, representatives of the private sector executives and the local council
presidents participated. This deliberative body was meant to have local opinions directly
reflected in the Trinity Reform by having a broad representation from both the central and local
governments in the re-organization of the Japanese local public finance.

98
Various contributions by the CEFP have been endorsed by the Japanese cabinet. This is in contrast to the previous
absence of expert input in policy-making.
As such the ability of the local government in the local public administration relies on the
guidance of ministries about strategic policy-making (in social/health service, education and
economic planning). The Japanese Central Bureaucracy has been thus termed as being multi-
centered rather than monolithic and seems to stimulate trans-local co-operation and the
mobilization towards local autonomy.

The Penchayati Raj engaged governance and Partnership model in


India
A mid-term review of the ninth Five-Year plan in India revealed that despite good performance
in economic growth, there was need for a concerted policy action in poverty alleviation in the
poorer states. It however, did not call for additional resources for such action but for better
policies and sound delivery mechanisms99. The problem was located in the excesses of a bloated
bureaucracy including corruption and patronage networks, inefficient public distribution system
as well as lack of capacity at the local level to handle funds.
This led to the creation of the state/local partnership models in the form of the Penchayati Raj
where the administrative system delivers state expertise and provides ‘user groups’ i.e.
stakeholders with direct contact to these services. On the other hand, Penchayati Raj sets the
stage for democratic decision-making on local level priorities and the integrated access into the
political system to express these demands100.
Thus, the emergence of non-congress governments at the state level in the 1980s was on account
of two opposing tendencies including an attempt to bypass the state and route funds directly to
Penchayats and the demand for greater federal polity101.

99
National state, development alternatives and the environment development policy and planning in independent
India followed the Nehru-inspired vision of economic centralization and transformation from above based heavily
upon industrial growth.
100

This was based on the Gandhian alternative of governance and development centered on the village and district
Panchayats.
101

This period witnessed the establishment of non-congress governments composed of ascendant agrarian groups of
intermediate castes that had -hitherto enjoyed little power.
The state, under pressure from ascendant social groups, development intermediaries and donors,
had to demonstrate an adoption of participatory principles by constructing organizations in line
with these demands without changing the underlying institutional relations102. As such, although
this was an attempt by the state to increase the effectiveness of its centralization, the local
institutions reserved relative autonomy to express their choices and tailor them to suit their
interests103.
This is after all based on the fact that the Penchayats are not delivery agents for development
projects but instead acts as institutions of self-government and decentralized political power104.
Panchayati Raj is a collective institutionalization of three tiers of local government namely;
district, block and village levels, is a system of political devolution involving the transfer of
resources and power to local level authorities, wholly or largely independent of higher levels of
government. It may be termed as a partnership model that involves the transfer of responsibilities
and resources to lower arenas of the public administration and to ‘user groups’ working in
partnership with them.

Under this devolution model, otherwise known as the village self-rule (Gram Swaraj), the village
assembly (Gram Sabha), a body composed of eight standing committees and additional ad-hoc
committees accountable and responsible to it as implementational committees, functions as the

102

In terms of governance and administration, these programmes were implemented along established line department
approaches. However, ostensibly to ensure efficient execution, District Rural Development Agencies were
established to link Central Government to the districts, blocks and villages. The theme of ‘local participation’ was
voiced in official policies with the rise of non-party affiliated social movements which presented a strong critique of
the entire development and democracy paradigm that had defined the policy agenda of the modern state and its
vision of progress, equality, rights and justice.
103
This is based on the notion that rural poor can be empowered through associating in user groups and self-help
groups, and the social capital (Putnam, 1993) is the missing link of development which underpins, implicitly and
explicitly, the decentralization agenda.
104
However, the ability of the Panchayats to support local development is complicated by the fact that at the macro-
level, Panchayati Raj has two rather incompatible goals i.e. for planners, these are instruments of development, but
for politicians they are instruments for bolstering party political positions.
decision-making body105. Public funds are channeled to the third tier of the village levels i.e.
Gram Penchayati from where they automatically flow to the village assembly before
disbursement to the user groups. Accordingly, the Penchayati Raj institutions have consequently,
been given the necessary administrative and financial support including revenue raising capacity
to take on the devolved responsibilities106.

105
Article 7-A of the Panchayat Raj Avram Gram Swaraj Act provides that the Gram Sabha shall- for discharging its
functions and duties, constitute the following standing committees, namely:
Gram Vikas Samiti, Sarvianik Sampanda Samiti, Krishi Samiti, Swasthya Samiti, Gram RakshiSamiti,
Adhosanrachna Samiti, Shiksha Samiti, Samajik Nyay Samiti
Article 7-D of the Penchayati Raj Avram Gram Swaraj Act states that the powers, functions and duties of the
committees shall be such as may be entrusted to it by the Gram Swaraj and shall work under its control and
supervision.
106
Article 7 (J) (4) of Panchayat and Gram Swaraj Act establishes the Gram Kosh operated by the Gram Vikas
Samiti and empowered to collect food, voluntary labour and donations in kind, like wood, fodder, e.t.c, and cash
collections through taxes imposed by the Gram Sabha as well as funds flowing from the Gram Penchayat.
CHAPTER FIVE

RECOMMENDATIONS: A MODEL GOVERNANCE


STRUCTURE FOR MULTI-LEVEL GOVERNMENT IN
KENYA
Proper devolution in an ideal multi-level structure of government should be characterised by an
engagement process that includes large-scale policy task involvement of groups, individuals and
civil societies with power being redistributed through shared decision making responsibilities
exemplified by task interdependence between various levels of government from the national to
the grassroots level.
Such a system of government reflects the embodiment of the principles of good governance that
includes broad participation and representation in decision making; responsive, efficient and
effective result-oriented institutions and processes; accountability and transparency at all levels
of government institutions and agencies; a shared sense of mutuality and understanding of the
context and circumstances prevailing in the geopolitical setting; fairness and equity of
opportunity for all persons.
This can only be realised with the adoption of an institutional approach to governance that
entrusts political power and the role of governance in credible, reliable and legitimate institutions
of government. In Kenya, credibility and reliability is only possible with the restricting of the
politicians role in governance and in controlling the government machinery. However, such
reduction of the politicians’ control of government may generate a risk of legitimacy of the
institutions as people mandated. As such, a balance must be struck between the quests for
professionalism and the legitimacy of the institutions from whence they draw the power,
authority and mandate to serve the people.
A new constitutional dispensation will thus require reconciling the need for professionalism in
governance by giving technocrats and public servants a greater role in governance in order to tap
into their tacit knowledge on state issues as well as ensuring the legitimacy of the actions of the
institutions as espousal of the peoples’ will. The other should complement this with the
truncating and diffraction of executive power amongst various state organs with each organ
acting as a check on the use of power. Under this new proposed system, governance is
subsumed under the following; executive authority, legislation and representation,
bureaucracies, devolved government structure and strategic state.

Executive Authority
The executive arm of the government exercises this power where it is shared between the
President and the Cabinet under the direction of the Prime Minister.
The presidential executive comprises of the Department of Defence, the National Security
Command Central, the Executive Office of the President and the Office of Public Administration
and Management.
These executive agencies are directly answerable to the President. As such, the President has the
ultimate say on policies advocated by these agencies.
The Prime Minister exercises executive authority and power through his Cabinet-government
where all executive decisions on matters of government policy are made collectively rather than
unilaterally.
On the other hand, the Central Public Bureau, the highest organ in the public service, exercises
unfettered discretion in exercising its veto power derived from its residual interest in matters of
public service delivery as well as making and ensuring compliance of public officials with the
public service code.

President
He is the Head of State and Commander-in-Chief of the Armed Forces. He is empowered to
assent to bills passed by Parliament into law. He also holds the prerogative of mercy.
The President is indirectly elected by the Legislature where the Upper House delivers the
determinant vote i.e. acts as an electoral college and the Lower House delivers the popular vote.
The Lower House vote is such that each member has one vote to which he is entitled and thus the
Lower House delivers a single vote per member.
In the Upper House however, the bloc voting system is followed where each delegation
representing a particular interest group, irrespective of its size delivers one vote. In this case to
win the Presidency the winner has to garner the highest number of delegations in the house rather
than delegates per delegation from each interest group. Such that, one may have more delegates
by for instance winning the vote of a few large delegations but lose the Presidency to the one
with fewer delegates but commands the confidence of more delegations in the house.
Once elected, the President serves for one term of seven years. Once his seven-year term elapses,
the incumbent President is not eligible to contest the Presidency again.
He exercises executive authority over various executive Government agencies including the
Department of Defence, the National Security Command Central, the Executive Office of the
President and the Office of Public Administration and Management as well as government
agencies that may be called to serve under the presidential executive prerogative on key national
issues under the direction of the Executive Office of the President.
The President is obligated to summon both Houses of Parliament and address them in a joint
session setting out the operations of his office at the beginning of every year for the year just
ended.

Department of Defence
It is an executive agency under the presidential executive prerogative responsible for the
management and direction of the national military and defence personnel and installations as
well as the determination and implementation of defence policies.
It works closely with the Commissariat, headed by the Minister for Defence, to reconcile and
harmonize the national defence policies of the Department of Defence with the budgetary
allocations and the general funding levels including the military procurement processes for
defence programmes determined and directed by the Commissariat.
It is headed by the Chief of General Staff who is directly accountable to the President as the
Commander-in-Chief of the Armed Forces including all national defence forces and all
disciplined forces in the country that may be called to actual national service.

National Security Command Central


It is an executive agency falling under the presidential executive prerogative. It has the ultimate
authority as the executive oversight body over the state intelligence services and all other special,
tactical, elite, covert forces operating within and without Kenya in the service of Kenya.
It is also a policy recommending body to the cabinet-government on matters of national security,
which recommendations being based on security status reports received, from intelligence
operatives and other covert corps.
It comprises the President, the Deputy President, key national security agencies’ chiefs, defence
chiefs as well as security experts and other presidential advisors.

Executive Office of the President


It is an executive agency directly under the presidential executive prerogative whose
responsibilities include policy formulation, direction, management, implementation and review
over key national issues that require long-term and sustained special attention and resources on a
grand scale including for instance HIV/AIDS scourge, terrorism and Vision 2030.
In order to discharge its mandate it is empowered to exercise overall direction over any of the
government agencies whose operations include dealing with or tackling any of the key national
issues.
The agency is made up of a team of support staff working under the direction of the Executive
Chief of Staff with the responsibility of directing and co-ordinating as well as overseeing the
operations of government agencies called in for service under the presidential executive
prerogative on such key national issues.

Office of Public Administration and Management


It is also an executive agency under the direction of the President under the presidential
executive prerogative, responsible for overseeing the running of the public service.
Its mandate includes policy review, direction and recommendation to the Central Public Bureau
in respect of public service operations and personnel management. In essence it works very
closely with the Central Public Bureau in discharging its duties.
Its decisions as well as recommendations are very persuasive and influential on the actions and
operations of the Central Public Bureau as a national public service planning manual and policy
guide.
It is made up of the President, the Deputy President, Secretary to the Cabinet, the Attorney
General, public service heads and public workers representatives.
The Secretary to the Cabinet acts in the capacity of an agent of the cabinet, where he also sits,
with the responsibility of reporting to the cabinet on the changes and developments in public
service policies as well as stating the position of the Cabinet-government position as to issues
arising in the delivery of public service and also making contributions during consultative
meetings under the presidential executive prerogative on behalf of the Cabinet-government.
The Attorney General on the other hand acts in his capacity as the chief legal advisor to the
government.

Prime Minister
He is the head of Government and a popularly elected member of the Lower House of Parliament
and is also the leader of the party with the majority seats in the Lower House.
He is the party leader who leads his party through the General Elections where once the party
members contesting for parliamentary seats win in their constituencies forming a majority in the
Lower House, he automatically ascends to the Office of the Premiership.
The Prime Minister then serves for one term of four years after which he is eligible for
Premiership for only one other four-year term. As such, the Prime Minister is limited to serving
as premier for a maximum of two terms of four year each.
The Prime Minister is the Head of Government empowered to constitute, appoint and head the
Cabinet, which is responsible for determining government policy as well as running the state
machinery.
In running the government, the Prime Minister as well as the cabinet is held responsible and put
to task by the Lower House i.e. the opposition bench through parliamentary questions.
The Prime Minister is obliged to hold regular conferences with the Head of State to brief him
and discuss government action and progress.

The Cabinet-government
The cabinet comprising, the Prime Minister, deputy prime minister, secretary to the cabinet,
Attorney General and ministers in the government; is the highest policy making organ of
government.
It acts as a unit in policymaking, such that the actions of a cabinet member are binding on the
entire cabinet through the doctrine of collective responsibility i.e. Cabinet-government.
As such, cabinet members cannot act unilaterally in determining policy issues in their respective
dockets including the Prime Minister
Ministers in the cabinet act as figureheads of their respective ministries where they exercise
authority limited to the general direction of the ministry.
In discharging their ministerial duties they are collectively as well as individually accountable to
the Lower House.
They are empowered as well as responsible for overseeing the effecting of and compliance with
any laws specifically enacted to be applied and upheld by their respective ministries.
They may also make ministerial directives having force of law in responding to public needs or
contingencies falling under the jurisdiction of their respective ministries.
However, such directives should not have the effect of infringing on the public service directives
of the Central Public Bureau that guide the practices and workings of the ministry such that a
ministerial directive should be in response to a properly defined contingency well within the
mandate and jurisdiction of the ministry in question.
Once appointed, cabinet ministers can only be removed by a joint house resolution or their seats
falling vacant or as a result of the dissolution of the Lower House.

Central Public Bureau


It is the highest organ of the public service entrusted with the running and overseeing of the
public service. It is also the appointing authority of all senior public officials in the government
ministries including the deputy ministers, permanent secretaries and departmental directors.
Its responsibilities include public service planning and policy formulation and management,
standard setting, monitoring of public service delivery, management of public service personnel
as well as regulation of public service activities.
In regard to policy issues in the public service, the Central Public Bureau may undertake policy
reviews of the public service activities and thereby institute and oversee reforms therein for
conformity with the global best practices in public service delivery.
It sets standards expected and crucial for quality in service delivery in the public sector and
maintains them by ensuring proper personnel training and accreditation as well as strict
compliance with the set standards across the board, from the national to the local level
bureaucracies.
It may invoke disciplinary measures on errant public officials at the national level and also sit to
hear appeals and petitions of unfair or uncalled for treatment and/or disciplinary measures and
punishment of public workers in local level bureaucracies.
The Central Public Bureau is also responsible for approving, revising, regulating and funding of
public sector programmes and departmental administrative operations of government ministries.
The Central Public Bureau is headed by commissioners from a shortlist of candidates compiled
by parliamentary committee and approved by the Lower House of Parliament.

Legislation and Representation

Bicameral Parliament
Parliament plays a big role in governance as a representative body of the people and thus can be
viewed as embodying public policy and public will. As such, parliament should embrace broad
participation and representation as well as inclusion of all stakeholders for it to have a legitimate
mandate and authority in expressing the will of the people. It should also be informed and
directly involved in governance so as to effectively monitor the other arms of government on
behalf of the public.
In order to do this effectively, parliament must be impartial and rise above vested partisan
interests. This calls for it to have in-built safeguards to check its excesses as well as some level
of perpetuity and continuity.
Achievement of the above is most practical in a bicameral set up i.e. parliament composed of two
houses mainly the upper and the Lower Houses. The bicameral parliament will reflect broad
representation and participation by encompassing both group representation and popular
representation.
As such, the Upper House, composed of representatives of special interest groups offers group
representation while the Lower House, composed of popularly elected members from
constituencies is for popular representation. Whilst the Lower House is dissolved in order for the
members to go back for a fresh mandate from the electorate, the Upper House remains in session
and thus is perpetual, creating a sense of continuity for parliament business.
Parliament may exercise authority as people’s vigilance through its direct involvement in
governance and policy making through its committees. Such that, the involvement of the joint
house committees directly in policy making will bring about informed deliberations on
government policy matters especially due to professional input from the members of the Upper
House whose membership is drawn from special interest groups which include professional
bodies as well as other stakeholders experienced in the matters at hand.
This kind of engagement is bound to ensure the appropriateness, applicability and suitability of
the policy in respect to its consistency with public policy.
The Public Accounts Committee empowered to scrutinise the national budgetary proposals from
the finance ministry, making recommendations after thorough evaluation makes for responsible
handling of public funds.

Group Representation
This is envisaged in the Upper House of Parliament which is made up of representatives from
special interest groups including professional bodies, religious groups, non-government
organisations among other organisations and associations of persons sharing a common interest
or a shared peculiarity that is not repulsive or repugnant to public moral and justice.
The allocation of seats in the Upper House is determined proportionately to the direct
membership base of each group represented in the chambers.
The membership base of each group determines its representative capacity thus the larger the
organisation or group in terms of its membership base the larger its delegation in the Upper
House.
However, their shall be an upper limit as well as a lower limit on the number of delegates per
interest group depending on the total number of delegations to sit in the chambers as against the
number of available seats in the chambers.
The representative capacity of the Upper House is dependent on the all-inclusive broad and
diverse array of interests affecting a majority of or the entire national population across the
nation being effectively represented in the House.
On the other hand, there shall be reserved special seats for umbrella bodies i.e. organisations
without direct membership or whose membership is made up of other organisations.
The Upper House shall have a steering committee made up of delegates representing umbrella
organisations as well as super delegates drawn from common interest groups delegations in the
House that are not allied or represented by any umbrella organisation.
The steering committee is responsible for setting the agenda for the House at any particular
sitting. In addition to conducting House business it is empowered to determine the membership
of House committees and of House members in joint House committees.
The Upper House has no legislative authority however, it can exercise veto power of suspension
of a bill passed in the Lower House by passing a resolution to that effect. Conversely, the House
can alternatively pass a resolution supporting the passing of the bill in which case the President
will have to assent to it.
In passing any resolution or taking a vote, each delegation in the House wields a single vote and
thus votes en bloc.
In this case, the side that carries the day is the one voted for by a majority of the delegates
through a combination of delegations yielding a majority of the delegates.
It is the popular vote rather than the proportional vote that plays the role of determining the
outcome of a resolution in the Upper House.
However, in respect to the election of the President, the reverse is true where the winner of the
Presidency is determined by a proportional rather than by a popular vote.
In determining the Presidency it is the number of delegations rather than the number of delegates
yielded by the various delegations in the House that sets apart the winner from the loser.
The Upper House remains perpetual even upon the dissolution of the Lower House since the
respective organisations and group represented determine the tenure of service for the delegates
in the Upper House.
The groups so represented in the Upper House have the responsibility of determining the tenure
i.e. the period constituting a single term and the number of terms their respective representatives
can serve as delegates in the Upper House. However, once a delegate is mandated accordingly,
having been sworn in as a delegate and begins to serve his term, he cannot be removed or
dismissed from that position unilaterally.
Members in the Upper House are mandated to sit and take part in House committee deliberations
including the departmental joint house select committees where though primarily representing
the interests of their principal organisations in their individual capacities, they also act as and are
held out as members of the Upper House collectively.
The Upper House also has the mandate of forming its own ad-hoc House working committees to
look into various issues of public concern and give advisory opinions through the publishing of
working papers on subjects of inquiry.
Such papers may be used persuasively in determining the passing of a bill(s) touching on the
subject of the working paper in the Upper House.
They may also be used to guide in the drafting of a bill for instance, a bill originating from a
joint house select committee.

Popular Representation
This is envisaged in the Lower House of Parliament composed of popularly elected
representatives of constituencies.
Each member is elected by constituents on a particular political party ticket to represent the
constituency in the Lower House. Each constituency has one representative member of the
Lower House of Parliament i.e. the person who garnered the majority votes cast by his
constituents during the General Elections where each constituent, registered as a voter was
entitled to and thus cast a single vote to determine their preferred candidate to represent them
from a list of other parliamentary contestants contesting the parliamentary seat in that
constituency.
The Lower House of Parliament may essentially be viewed as the stage for popularity contests
between various political parties as well as a political bargaining arena for the political class,
which may often result in political horse-trading thus alignments and realignments of parties and
their members in the House.
Such political alignments then come down to two major alignments that result in the two
opposing sides that sit on either side of the House Speaker i.e. the Government side and
opposition.
The party with the majority seats in the House or a coalition of political parties commanding a
majority of the seats in the Lower House forms the Government and the majority party leader
becomes the Prime Minister.
He then moves on to constitute his cabinet by picking and appointing members of parliament
from his party or coalition of parties to serve as ministers in the cabinet thus forming the
Cabinet-government.
The Prime Minister and the cabinet members occupy the Government front bench in the Lower
House while the rest of the Government-allied parliamentarians occupy the backbenches on the
Government side of the floor.
On the other hand, the leader of the minority party or coalition of parties in the House becomes
the Leader of Official Opposition.
He moves on to form his own shadow cabinet from amongst members of the opposition in the
House. The Leader of Official Opposition and his shadow cabinet sit on the opposition front
bench as a government in waiting.
The Lower House is mandated to play the role of the peoples’ watchdog on the Cabinet-
government where the opposition keeps the Government side on its feet by raising parliamentary
questions during parliament sessions. Such questions are directed at the relevant cabinet
members depending on the subject of the query and the Prime Minister as well.
The Lower House is entrusted with the legislative authority whereby bills may originate, be
debated and if passed in the Lower House proceed to the Upper House for scrutiny before being
assented to by the President to become law.
A bill may be tabled in the Lower House as a Government bill, private bill or be forwarded by a
parliamentary committee especially for instance the departmental joint house select committees.
Once laid before the house, the bill goes through the first reading followed by a vote from the
House members which vote if favourable sees the bill proceed to the second stage which is the
second reading followed by another vote after which following a favourable outcome the bill is
assigned a standing committee for a thorough scrutiny before the final reading where a
favourable vote is the last hurdle for the passing of the bill in the Lower House.
During the voting process to determine the passing of a bill in the Lower House, each Member of
Parliament is entitled to a single vote which he may cast in favour of the bill in which case the
vote is an aye or against the bill in which case the vote is a nay.
Where the votes cast in favour of the bill (ayes) outweigh those cast against the bill (nays) the
bill is passed, however, when the reverse occurs the bill is defeated.
The Speaker of the Lower House acts as the figure head of the Parliament. He is the official
representative of Parliament, empowered to conduct business as well as speak on its behalf
during for instance inter-parliamentary functions locally and abroad.
He is also responsible for moderating and regulating debates in the Lower House.
The Lower House may also establish ad-hoc house committees as well as standing committees
whose membership is determined on party strength of numbers in the House.
The Members of Parliament also sit and participate in joint house committees.
The Lower House unlike the Upper House, is however, not perpetual.
The Lower House has a life-span of four years after which it is dissolved so that the Members of
Parliament can go back to the constituencies they were representing to seek another fresh
mandate from their constituents to represent them for another four-year term in the next
Parliament which is constituted on conclusion of the General Elections and the subsequent
declaration of the election winners.

Departmental Joint House Select Committees


They are made up of members from both Houses of Parliament where the membership from the
Upper House is determined by the Steering Committee and the membership from the Lower
House is based on party strength in the House i.e. the number of seats a particular party
commands in the House.
It is a parliamentary oversight body responsible for supervising and overseeing matters of policy
in the respective government ministry assigned to that particular committee.
They scrutinise government policies on particular public concerns including for instance health,
education and so on.
In this regard, their duties include departmental policy review and revision and thus reserve the
ultimate say in the determination of departmental policies.
These committees are deliberative forums where following a conflict between cabinet policies in
regard to the ministry or a ministerial directive with the public service policy directives such
departmental policy issues are referred to the relevant departmental joint house select committee
where they are deliberated after which the committee makes a ruling on the issue.
In making such a ruling the concerned committee inquires into the appropriateness and the
effects of a particular policy as guided by public policy and preferences and in so doing may
make adjustments and alterations to the policy in question as part of its policy revision mandate
or even ultimately prepare a bill and lay it before the House for enactment, to stand in for the
inadequacies plaguing that particular policy directive.
Such a ruling is binding on the stakeholders and parties to the dispute such that the declaration
by the committee or the terms set out thereof determine the departmental policy to be followed in
that particular ministry.
They are also responsible for monitoring the implementation and the ultimate application of bills
passed to become law that directly impact on the operations of the ministries assigned to them.
In this regard the committees are empowered to summon the Minister concerned to brief the
panel on the progress and compliance rate of his ministry with a particular newly enacted law
directly impacting on the operations of the ministry.
They also sponsor bills, which they table before the Lower House to be debated into law. Where
a Departmental Joint House Select Committee is the originator of a bill which it brings to the
House, it is incumbent upon the concerned committee to do a follow up on the bill through its
debate and subsequent passing in the Lower House as well as in the Upper House finally to its
enactment as law on receiving Presidential assent.
In doing this, these committees may indulge their ranks to canvass for the support of the bill
from among members drawn from both Houses of Parliament.
This may also entail detailing to the House members the effects, suitability and applicability of
the proposed bill for its enactment.
It is also the duty of the concerned committee to hold civic education seminars for the public to
educate the people as well as other stakeholders on the application of the newly enacted law.

Standing Committees
These are broad-spectrum parliamentary committees that comprise Members of Parliament in the
Lower House of Parliament.
They are large committees whose membership, though determined on the basis of party strength
of the numbers of House members within its ranks, the committee membership criteria is rather
categorical and particular on inclusiveness of all political parties and interests represented in the
House to be included and involved in its composition and affairs.
The mandate of these committees includes in-depth scrutiny of bills at the committee stage of the
legislative process in the Lower House.
At this stage, a bill which has passed the initial legislative stages i.e. the first and second
readings, is taken up by a Standing Committee which sits and deliberates, analysing the bill; its
implications and applications for a comprehensive understanding and appreciation of the
intended role of the bill once it is passed into law.
The committees may then make recommendations for adjustments and amendments on the bill or
simply have it proceed to the final stage in its original form.
These committees work very closely with the originators of the bill in question.

Public Accounts Committee


This is the parliamentary watchdog on matters pertaining public finances. Its membership
comprises of Members of Parliament from Lower House.
It works closely with the Office of the Comptroller General as well as that of the Auditor General
in exercising parliamentary oversight over public finance resources.
Its mandate includes conducting pre-budget scrutiny and analysis on the proposed budgetary
allocations from the Ministry of Finance as well as monitoring of the actual application of public
funds in the public sector.
This committee is also vested with the authority to formulate and recommend public-spending
policy to guide the House in evaluating the budget for endorsement.
To discharge its mandate effectively, the committee is empowered to require the Comptroller
General to submit status reports on the progress and process of disbursements of public funds to
the allocated portfolios as well as the resultant output stemming from the application of the
funds.
The quality, priority and level of the output or projected output and the cost-benefits arising
thereof from the application of budgetary allocations inform the public-spending policy to be
recommended to the House by the Public Accounts Committee that will determine the chances
for a safe passage of the budget in the House.
The Public Accounts Committee in formulating and recommending the public-spending policy to
be followed is guided by the reports and recommendations of the Comptroller General as well as
that of the Auditor General, not excluding however, the committee’s capacity to co-opt the
services of accredited experts in the relevant fields.
The Public Accounts Committee also has the responsibility of receiving the performance and
financial audit reports from the Auditor General on the general performance, financial position
and the application of public funds allocated to public sector bodies before forwarding the same
to the floor of the Lower House for debate and deliberation on the contents and
recommendations set out therein.

Public Administration Committee


This is a parliamentary watchdog committee on public sector bodies and organisations
throughout the entire public sector from the public service at the national level to the local level
bureaucracies including the quasi government organisations (QUANGOS).
Its mandate includes oversight, inquiry and review of the entire public sector programmes on the
policy outcomes.
In this regard the committee is empowered to make inquiries into the operations and dealings of
various public bodies confining itself however, to the policy outcomes in administrative and
actual service delivery matters in its endeavours.
Its jurisdiction extends to include even the executive agencies under the presidential executive
prerogative as well as all government ministries and agencies. The findings of its inquiries
determine the level and availability of funding, any particular public sector programme or
government operation and undertakings will be entitled to.
The Public Administration Committee therefore also aids in shaping the public-spending policies
and as such works closely in conjunction with the Public Accounts Committee.
It is this committee that receives and handles the reports from the Ombudsman on public sector
issues.
It is also the committee that is mandated to shortlist proposed persons for the position of
commissioners of the Central Public Bureau, which list is then presented in the Lower House for
approval after which the shortlist is presented to the President who proceeds to select the number
of commissioners required to fill the vacancies available.
The committee may summon commissioners of the Central Public Bureau as well as other
ministry and public officials and officeholders to appear before it during inquiries.

Parliament Business
The House Business Committee of the Lower House comprising Members of Parliament in the
Lower House and the Steering Committee of the Upper House of parliament that includes
delegates from umbrella bodies and super delegates selected from among House delegates from
various common interest groups that lack representation and membership in umbrella bodies, are
the two committees responsible for setting and preparing parliamentary agenda in the respective
House chambers they belong to.
As such, they determine the programme for sessions in Parliament and are also entrusted with the
responsibility of setting out the parliamentary calendar as to include periods of recess and the
time frame assigned for such recess before the resumption of duty as well as the expected date of
dissolution of the Lower House in the case of the House Business Committee.
The Steering Committee is also empowered to determine the membership of ad-hoc working
committees of the Upper House. In addition to this, it is vested with the authority to determine
the membership of the Upper House delegates in the composition of the joint house committees.
However, in exercising such authority the Steering Committee shall be guided and heed to the
interests and expertise of the delegations and delegates.

Bureaucracies
It comprises all public bodies consisting of non-elected public officials, from the national to the
local level i.e. the public sector including the Central Public Bureau, government ministries,
government agencies and other public officeholders at the central state level as well as the quasi-
government organisations at the regional sub-national level.
The bureaucracies are responsible for public service delivery including for instance putting up
and maintaining infrastructure and public utilities as well as implementing government policies
for the benefit of the citizens of the nation.
In respect to implementation of government policies, these bureaucracies may be categorised
according to their pecking order as such:
The government ministries form what may be referred to as the vanguard of the state in public
service delivery and policy initiatives while the government agencies and the sub-national quasi-
government organisations form the rearguard in the state policy cycle.
In this regard, the government ministries are the primary policy vehicles of the state, with the
sub-national quasi-government organisations being secondary government policy vehicles and
the government agencies coming in as alternative government policy vehicles in the realm of
state policy and planning.
However, though the government ministries revel in their splendid role and primacy as key state
machinery in public service delivery, the rearguard comprising the government agencies at the
national level and the quasi-government organisations at the sub-national level form the infantry
and are primarily responsible for the implementation and the resultant realisation of government
policy objectives and actual public service delivery on the ground.
In a nutshell, these bureaucracies are the cogwheels that run the government machinery for
which they use the public funds in the form of state revenue to oil the running process of
government.

Central Public Bureau


The Central Public Bureau is the highest public service organ concerned with the formulation of
public service policy and programmes in all the government ministries as well as monitoring and
regulation of public sector activities by government agencies and quasi-government
organisations at the sub-national level.
It also holds a residual interest in all matters of public service delivery and as such is vested with
the power to veto any measures taken in respect to public service delivery mechanisms which it
deems unfit.
In exercising overall oversight over public service delivery, the Central Public Bureau is
mandated to formulate, approve, regulate, revise and fund public sector programmes at the
national level through the administrative channel of government ministries or at the sub-national
level through the quasi-government organisations in which it holds a residual interest as well.
It is also mandated with the hiring of ministry officials including senior government officers like
the deputy minister, permanent secretary and the departmental directors in the ministries.
It sets the standards and discipline that guide the ministries in their operations where the deputy
minister and the permanent secretary as well are guided by the public service directives of the
Central Public Bureau in discharging their duties.
Its residual interest in the public service is such that, it can veto policy directives from the
cabinet or the cabinet minister concerned which veto can only be overruled by a ruling of the
respective Departmental Joint House Select Committee, after exhaustive deliberations on the
policy matter.
As such, the deputy minister being the head of policy issues at the ministry must ensure policies
from the cabinet and ministerial directives are consistent with the guiding principles and
practices of the Central Public Bureau before assimilating the same in the ministry.
The Central Public Bureau is headed by commissioners from a shortlist of candidates compiled
by the Public Administration Committee and approved by the Lower House of Parliament.

Government Ministries
They are divided along various public service segments for instance health, internal security,
defence among others i.e. they are rather departmentalized in nature. They are concerned with
policy issues in their respective segments. They are responsible for implementing central
government policies in the areas they cover. They also oversee and co-ordinate the activities of
other government agencies in their segment. They form the channels through which the central
government funds its operations.
The government ministry is the primary and most vital vessel for the implementation and the
eventual realisation of government objectives in public service delivery.
The respective cabinet minister who gives general direction in the running of the ministry and
also communicates the government policy in respect to that ministry heads the ministry.
The cabinet minister is empowered to make ministerial directives in respect to public concerns
specifically falling within the ambit of his ministry.
He also oversees and supervises the implementation of necessary laws that have a direct
implication on his ministry which responsibility he is directly accountable to parliament as well
as government policies in his ministry.
The ministry being the cornerstone of public service delivery and the realisation of government
policy objectives, the cabinet minister is vested with the power to establish various quasi-
government organisations meant to aid in building capacities of the local governments in public
service delivery.
Such quasi-government organisations are however limited in their scope of operations to the
specific departmental objectives assigned by the respective ministry in a particular sub-national
region-specific scale of operations.
In doing this, the minister is guided by a General Act of Parliament establishing the parameters
of creation and operations of the quasi-government organisations as well as determining the
minister’s responsibility in creation and operations of such bodies.
The deputy minister, a public official appointed through the Central Public Bureau, oversees
policy issues in the ministry and is thus responsible for restating government policy from the
cabinet and aligning it with the practices and principles of the Central Public Bureau before the
eventual implementation of the policy by the ministry.
The Permanent Secretary is the administrative head in the ministry whose responsibility is
limited to the routine management and the day-to-day running of the ministry. He is a bureaucrat
appointed by the Central Public Bureau.
The director in the ministry is the co-ordinator and chief liaison officer of the ministry
responsible for co-ordinating ministry operations and liaises with government agencies in a bid
to align their activities with the objectives of the ministry.

Government Agencies
They are autonomous specialised government institutions comprising for instance the
investigative and forensic agencies, national health referral facilities, scientific and research
facilities, regulatory bodies, state revenue authorities, National security and intelligence
facilities, institutions of higher learning and other highly-specialised task-mandated public
bodies and corporations.
They are part and parcel of the state bureaucracy at the national level. They are operationally
independent responsible for their own policy formulation and implementation in their field of
expertise and specialisation.
They are however required to liaise with the departmental directors in the respective government
portfolios for co-ordination and alignment of their operations with the government policies and
public service objectives.
They constitute the alternative policy vehicle for the government as they are operationally
independent of the government and may only be put to task by parliament through the Public
Administration Committee on their policy outcomes.
Their scale of operations covers the entire nation where they are empowered to exercise
unfettered executive authority on all matters falling within their scope of operations countrywide.
This includes a nationwide residual executive discretionary right on issues falling within their
area of specialisation throughout the nation for instance the Criminal Investigation Department
has jurisdiction over all cases involving forensic investigations.
Directors nominated by the Prime Minister and appointed by the President after being vetted by
Parliament head these institutions.
The directors of the agencies act independently without undue influence from any persons or
authority and enjoy a security of tenure. However, they may be summoned by their respective
departmental joint house select committees to give information during investigative inquiries by
the committees.

Devolved Government Structure


A multi-level structure of government is the best and most practical means for devolving state
power and resources to the lowest and most basic level of the social order. For the proper
functioning and effectiveness of such a government each level of government must have some
considerable measure of autonomy in running the affairs of its jurisdiction. To effectively utilise
their autonomy, sub-national governments must build adequate capacities in terms of resources
and skills in running their territories.
In fully developed federal states the sub-national governments exercise exclusive control over
the affairs of their territorial jurisdictions, which is as a result of their ability to be self-reliant and
run their own programmes and projects independent of the central government. These regional
governments tend to have reliable revenue streams within their territories as well as long
tradition of self-governance thus their steadfastness.
However in the case of Kenya where resource distribution is highly skewed with most regions
lacking financial as well as the necessary capacities to run a fully fledged sub-national
government, a pseudo-federalist approach to governance would be the most appropriate.
In this case there would be semi-autonomous regional meso-governments exercising unfettered
discretion over local level prioritisation and resource mobilisation with the central government
being a mere facilitator and enabler of the sub-national outfits i.e. the rise of the strategic state.

Sub-national Governance
It is made up of constituency-level meso-governments in the form of Constituency Development
Committees and the metropolitan governments i.e. city councils and the composite amalgamated
local authorities. The constituency committees are mandated with constituency-level
prioritisation and resource mobilisation. They set the development agenda at the grass roots
level.
Constituency Development Committees
They are committees at the constituency level mandated with the setting of the development
agendas of the constituencies. Such development includes the setting up of various public
utilities and infrastructure as well as the staffing exercises of various public service personnel at
the constituency-level for instance the police under the direction and guidance of the legislation-
enabled; Ministry-established; Central Public Bureau-mandated and local government-authorised
respective Quasi-government organisation which is responsible for capacity building of these
meso-governments in public service delivery through technical assistance and Central Public
Bureau-sourced funding for such public sector programmes.
Essentially, the Constituency Development Committee sets and runs the constituency
development programme for which it exercises complete autonomy. However, their plans and
projects are subjected to set standards of the CPB whilst the funding of the projects is done
through the Local Committees in the Office of the Comptroller General.
Each constituency is allocated a fixed constituency-specific amount of money through the
constitution-entrenched Constituency Development Fund. All constituencies are entitled to the
CDF as well as the right to keep and utilise whatever proceeds they make from the employment
of the CDF funds while maintaining accounts of such endeavours with the local committees of
the Office of the Comptroller General, which are responsible for procurements, and disbursement
of public funds at the constituency level.
As such, the Constituency Development Committee is only vested with micro-level economic
planning and prioritisation responsibilities where it unilaterally decides and determines the
specific application of the allocated Constituency Development Funds but does not handle the
funds and the actual application of the funds is entrusted to the local committee of that
constituency in the Office of the Comptroller General.
Once the projects are completed, the Constituency developments Committees are not mandated
to run and manage the public installations they put up.
The running and routine management and maintenance of all public facilities at the local level
are the responsibility of the local authorities in that area.
The members of the committees are nominated by a parliamentary candidate as part of his
campaign for the parliamentary seat. The election of the parliamentary candidate also serves as
an endorsement of his team, which then becomes the Constituency Development Committee for
that particular constituency. However, failure of the Constituency Development Committee to
deliver could lead to a recall parliamentary election.
Such a recall parliamentary by-election is possible with the collection of the necessary number of
signatures proportionate to the population of the constituency bearing a truly representative
constituency outlook compiled in an election petition which once delivered and verified by the
Speaker of the Lower House then obliges the Speaker to declare the particular parliamentary seat
vacant paving the way for a recall election.

Local Authorities
They include the city, municipal, county, and other urban councils and authorities.
They are responsible for all urban centres as well as outlying areas that lay adjacent to these
urban centres.
The local authorities are relatively autonomous administrative and planning bodies at the local
level.
They are also charged with law enforcement and provision of public and social services as well
as the running and managing of the public utilities in their territorial jurisdictions. In addition to
their day-to-day duties and responsibilities, the local authorities are also mandated to manage all
utilities and facilities set up by the development committees of the constituencies. This is
considering the implicit knowledge and the experience not overlooking the technical capacities
and expertise they possess in public utilities management.
In managing such utilities the local authorities are not entitled to any grants or any direct funding
from the state however, they are empowered to collect revenues as well as user charges accruing
within their jurisdictions from individuals and institutions operating in those areas.
They may also receive grants from other sources including through private financial partnership
programmes with other local authorities abroad as well as other organisations.
The local government are however, entitled to state funds through the Quasi-government
organisations operating in that particular territory of the local government.
The quasi-government organisations are specialised infra national departmental capacity-
building bodies which give technical assistance and government funding for sector-specific
programmes being instituted and run by the local government for instance education, health and
so on as well as the constituency-level constituency development initiatives of the Constituency
Development Committee, but with the authorisation of the local government in that area.
The local authorities are autonomous entities exercising their discretion independently without
any undue influence.
The councillors are elected to serve for a term of four years before seeking a fresh mandate at the
general elections.
The mayoral election coincides with the parliamentary elections and the winner in the election
becomes the mayor. However, mayoral elections are only conducted from the municipal council
level to the city council i.e. in the metropolitan governments only.
The local authorities below the municipal council level, save for the composite local authorities
comprising two county councils and the enjoined urban authorities in the absence of a proximate-
situated municipal council, may only elect their councillors who following their election are then
supposed to organise and conduct aldermanic elections to elect aldermen from among themselves
to sit as members of the Executive Committee of the municipal council to which such urban
council may be enjoined as a cost-cutting measure in respect to administrative and service
delivery expenses.
The Executive Committee headed by the Mayor is the body vested with the executive authority
at the sub-national level as a metropolitan cabinet-government and thus mandated to run the local
government comprising the municipal council and the enjoined adjacent urban authorities as well
as the outlying areas forming the frontiers of the local government collectively operating as a
sub-national quasi-confederacy.
The Executive Committee, once constituted, is then responsible for the appointment of local
administrators who are assigned to manage the affairs of the various enjoined urban authorities
and outlying frontiers under the supervision of the councillors from the assigned areas.
Local authorities may only be enjoined to the municipal council or in the absence of such
municipal council two county councils and the nearby urban authorities may be merged to form a
composite local government equal in standing to a metropolitan government comprising
municipal quasi-confederacies or the city councils.
In the city councils the councillors may elect anyone to become an alderman without one having
to be a councillor as a prerequisite for election as an alderman.
However, only aldermen and the Mayor constitute the Executive Committee of the local
government. Once elected at the aldermanic election one remains an alderman and member of
the Executive Committee for the entire four-year term.
The inhabitants of the local government popularly elect mayors. In the case of the municipal
councils the people in the enjoined local authorities and the outlying frontier regions take part in
the election of the mayors as well.

The Strategic State


The state has in the past played housekeeping roles and offsetting functions, which having been
rather interventionist in nature, required minimal input from the citizenry.
These rather interventionist roles of the state brought about the bulky, ineffective and rather
intrusive big brother state, which has been aptly described as a rather arthritic octopus and an
inept leviathan.
Contemporary statecraft requires the state to go far beyond its mundane traditional
interventionist roles and become involved as a broker and partner in participatory planning and
policymaking.
This calls for an integrative and interactive regime, where the citizen has a recognized voice on
matters of substance and procedure in the public realm through the principle of subsidiarity,
which requires that power be devolved to the lowest local institutions closest to the citizen and
capable of handling public service tasks.
Assimilation and utilization of the concept of subsidiarity would see drastic reduction in the
vertical hierarchical power in governance thus increasing in a meaningful way the potential for
broad participation.
This would bring about a trend towards the demise of the big brother state with its rather
reductionist, exclusive and tokenistic approach to public service delivery borne by the hugely
centralized bureaucratic hierarchical line departments that are characterized by a highly top-
down decision making and administrative process that does not take into account the
appropriateness and effects of the public service programmes in respect to public policy,
priorities and preferences in a particular setting.
This thus leads to misalignment of the public service outputs with public needs resulting in major
distortions of expected and projected outcomes from the public service delivery programmes and
policies.
The new and lean strategic state is founded on the premise that the central state focuses on the
norms and the periphery on delivery. In which case the central state is responsible for the norms,
standards, general directions and values while the devolved unit takes the lead in the process of
ministering to the public and of delivering a service well adapted to its needs.
Such a governance framework requires dynamic policy process inter-linkages and co-ordination
of center-periphery operations in order to avoid duplication of tasks and the concomitant lack of
a clear-cut sense of purpose leading to policy paralysis coupled with public programme and
financial management gridlocks and fragmentation.
New partnerships and skills involving strategic management through consultancy and advisory
recommendations and evaluations envisaged in the prescriptive role of the central state-mandated
regional and sectional special forums would alongside devolved units properly enabled under the
principle of subsidiarity promote communication and co-operation through capacity building and
provision of the necessary technical assistance help the local government in mobilizing the local
citizenry in dealing with the local public matters in ways that suit them and the prevailing
situation.
These new kinds of institutions requires the central state to restrict itself to providing a problem
setting, framing the context of the situation and the boundaries and scope of public attention,
while allowing the bureaucrats and the residents through these forums to deal with the specific
situations, making their own decisions based on their perception and appreciation of the
peculiarity of the situation.

Community Development Committee


It is a development constituency level committee that runs parallel to the Constituency
Development Committee. Its terms of reference are similar to those of the Constituency
Development Committee with the variation being in their approach to constituency development.
Whilst the Constituency Development Committee acts autonomously in serving the community,
the Community Development Committee is responsible for implementing region/constituency-
specific government policies. It also acts as a feedback mechanism for the government on the
viability of government initiatives in the area. Unlike the Constituency Development Committee,
the Community Development Committee is fully dependent on government allocations which
sums are dependent on the policies and priorities of the central government.
They serve as alternative vehicles for the government to make and execute its policies according
to the priority and need basis of each region and the peculiarity of the circumstances of each
region as perceived and articulated at the grass roots level by the residents of that area.
Though the government determines the composition of these committees, these committees must
be made up of residents residing in the area. Such residents may be eminent persons in the area
especially in opposition strongholds if such committees are to be used as a tool for campaigning
and endearing the government to the local people by positioning themselves as constituency
development committees in waiting.
However, like the constituency development committees, they are only entrusted with planning
responsibilities only limited to the constituency level. As such they access funds allocated to
them through the local committees, which are vested with the responsibility of disbursing
allocated public funds at the constituency level.
They may use the funds to initiate public welfare utility projects and programmes at the
constituency level depending on the government policies concerning the area, the initiating and
establishing such projects for instance putting up facilities is as far as the mandate of the
Community Development Committees goes with such facilities, once completed, reverting to the
local government which is responsible for the management and administration of such
installations.
Community Development Committees are not specialized and their operations cover the entire
sphere of public service delivery and public welfare at the constituency level.
As such depending on the circumstances they may be used to bolster the Constituency
Development Committees in their endeavors for instance in places where the government won
the parliamentary seat or as an alternative to the Constituency Development Committee where
the government lost the parliamentary seat.
Whilst the committees may to a large extent be under the exclusive control of the government
their funding is greatly dependent on the public spending policy adopted by the parliament
guided by the reports of the Comptroller General based on the feedback received from the local
committees in the constituencies. This is in addition to annual audits by the Office of the Auditor
General as well as scrutiny and inquiries into committee operations by the Ombudsman whose
recommendations are binding on the Central Public Bureau as the body with the residual interest
in all public service matters and thus empowered to take actions geared towards injecting and
upholding professionalism in these forums as it deems fit.
The committee is constituted of individuals including for instance losers in the party nominations
of the ruling party as well as parliamentary election losers from the government side.
The committees receive directions from the Secretary to the Cabinet, who acts as their head and
liaison in the Cabinet, guided by and based on the government policy and the feedback from the
committee.

Quasi-Government Organisations (QUANGOS)


These are regional departmental special purpose vehicles with area-specific mandates.
They are created by the minister in a central state effort to ensure best practices and standards in
public service delivery are upheld by the devolved government units through capacity building
and provision of specialised technical assistance and funding coupled with dynamic monitoring
from above as well as reliable feedback mechanism from below.
As such, the quasi-government organisations play a prescriptive role in an advisory capacity to
the sub-national governments on specific sectional matters falling within the mandate of the
ministry under which the QUANGOS is authorised to operate for instance health, education,
internal security.
The QUANGOS assists in enhancing and advising on the acceptable standards to determine
operational guidelines and the practices including the appropriate personnel requirements that are
best tailored to suit the specific needs and circumstances of the public service bodies operating in
a particular area as well as funding such public sector programmes.
They therefore simply configure the most appropriate modes of public service delivery
mechanisms from specifications formulated through policy directives of the local government
and according to the needs and preferences of the local residents in that area. They then help in
realigning such operations with the overall national aspirations by determining the availability of
any extra funding for the public programmes and projects in that area.
Their scale of operations is limited to the territorial jurisdiction of the local government within
which they operate with the scope of their activities confined to the public concern segment of
the ministry they serve under.
Quasi-Government Organisations are operationally independent but rely on the state for funding.
Once established through a ministerial directive under the General Act regulating and guiding the
establishment and subsequent activities and relations of the QUANGOS, the institution is
consequently reverted to the general direction and supervision of the Central Public Bureau as a
result of its residual interest in public service policy and delivery mechanisms.
The Central Public Bureau is the one responsible for monitoring and funding of the QUANGOS
in a bid to ensure professionalism in public service delivery. However, it may only intervene in
the operations of these bodies as a remedial action in its capacity as a public service regulator.
Quasi-Government Organisations are staffed with bureaucrats who are technocrats and are thus
employed according to their expertise and skills in respect to particular fields of public sector.

Auditor General
The Auditor General is charged with the responsibility of auditing public sector finances and
performance. In discharging his duties he is empowered to have complete and total access to
records in all public sector agencies. He makes an annual audit report addressing and detailing
the situation of public service delivery as well as application of all disbursed public funds, which
he then presents before Parliament through the Public Accounts Committee.
In discharging his duties the Auditor General is not under direction or control of any person or
authority.

Comptroller General
He is the controller of the national budget. Once the Ministry of Finance prepares the budget he
then takes the responsibility of disbursing the funds as per the allocations by the Finance
Ministry. Once the funds have been disbursed he compiles a report confirming that the funds
were promptly and properly disbursed to the areas the funds were allocated.
He does not take part in the allocation of funds only in the disbursement; however, he sets out an
informed opinion on the budgetary allocations by the Ministry of Finance, which he submits, to
the Public Accounts Committee to act as a guideline when making recommendations as to the
passing of the budget once presented before Parliament.
In discharging his duties the Comptroller General works independent of any undue influence
from any person or authority.
In order to work more effectively he oversees a series of local committees operating at the
constituency level, which bear the responsibility of disbursing the CDF funds from the national
coffers through the Office of the Comptroller General.
The Office of the Comptroller General acts as the custodian of the treasury and all access to the
public funds must be made through it. It is therefore the Comptroller General who essentially
avails funds for all appropriations made by the Ministry of Finance and passed by parliament.
The Ministry of Finance on the other hand is mandated to make and oversee the implementation
of the national fiscal policies as well as making the budgetary allocations necessary for running
the government and funding government programmes.

Ombudsman
He is appointed and authorised to receive and investigate complaints made by individuals against
abuses or capricious acts of public officials. His jurisdiction covers the entire public sector.
He investigates acts and the complaints thereof that cover issues of a non-litigious nature and
those that would be unsuitable for litigation for instance cases of delays in issuance of various
national documents and public service delivery generally.
To discharge his duties effectively he is assigned staff to work in field offices throughout the
country where individuals can make their complaints. The Ombudsman is also responsible for
conducting public awareness programmes aimed at sensitising the public on their rights and what
should be their expectations as regarding service delivery by public service officials and agencies
as well as public information access service to assist the public in accessing crucial information
on various government services.
The Ombudsman makes periodic reports to act as scorecards and indicators of the quality of
service delivered by public officials and institutions on the basis of for instance the number of
complaints received by the Ombudsman within a specific period of time. As such though his role
may seem predominantly reactive he also has a proactive responsibility in monitoring public
service delivery in the public sector.
The Ombudsman may make inquiries into all complaints against public officials submitted to
him. On completion of the inquiry the Ombudsman compiles his findings and may make
recommendations for disciplinary actions to be taken against the culprit(s). His recommendations
are binding on the public service authorities mandated to take disciplinary measures against such
individuals.
The mandate of the Ombudsman originates from the Parliament and as such he is the
Legislature’s watchdog in the public sector with respect to public service delivery. In this respect
he tables an annual report before Parliament through the Public Administration Committee on the
operations of the Office of the Ombudsman for that year.

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