County Government Amendment Bill: A Blessing or Curse?

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Devolution has been a contentious matter both in government and around the country for a while now. One of the key issues out of it is of the County Government Amendment Bill. In the midst of the push and pull that is going on between the Senators and Governors the contention of the said bill arose. The key sponsor of the Bill is Mr. Stephen Sang who is the Senator of Nandi County.
From the several concerns that have been brought about by the tabling of the Bill, what stands out is the lack of a proper understanding of Devolution. This has brought about a tag of war between Senators and Governors in regards to who holds the most power between the two; an argument that I could term barbaric as our leaders should be focused on working together to deliver the promises made to the Kenyan people, instead of trying to achieve their own selfish goals.
In Summary, the bill creates a County Development Board which will be chaired by a Senator and comprise of; a county woman representative, the elected MPs in the constituencies within the county, the Speaker of the county assembly, the majority and minority leaders in the county assembly, the chairperson of the county public service board, the chairmen of the county assembly committees in charge of planning, finance, and budget. The representative of the national government in charge of planning will also sit in the board. Governors will act as secretaries to the board.
The Board shall be responsible for the coordination and harmonization of county development plans and projects.
The Bill also seeks to establish or designate County Headquarters. The proposed Bill seeks to amend the Principal County Government Act (Act no 17 of 2012). This is essentially an Act of Parliament to give effect to Chapter Eleven of the Constitution; to provide for county governments powers, functions and responsibilities to deliver services and for connected purposes. Kinyanjui Kamau lists the following as the main objectives of the Act.
The main objectives of the County Act include:

  • To provide for matters necessary to give effect to Chapter 11 of the Constitution
  • Give effect to the objects and principles of devolution
  • Provide for powers, privileges and immunities of county assemblies
  • Provide for public participation in the county assembly and its activities
  • Ensure that cultural diversity of a county is reflected in its organs
  • Prescribe mechanisms for the protection of minorities
  • Prescribe procedures and standards for the management of county governments

The Commission on Implementation of the Constitution (CIC) has on several occasions stated that the proposed bill violates the constitution. Governors believe that it will diminish their role in regards to the budget making process. The Key issue with the bill however is its contravention to the Supreme Law of the Land.
The following are some of the contentious issues raised by those opposing the bill: -

  1. The Unconstitutionality of the Bill. Several articles of the Bill are contrary to the Constitution. The Commission on Implementation of the Constitution states that the Bill violates Article 261 of the constitution which lays out the procedure to be followed for the generation of legislations.
  2. Duplication of Roles. It has been argued that the enactment of the bill will lead to creation of duties and roles that already exist and that are accounted for in the County Government Act. This in turn will create a need of funds to be allocated to enable performance of these functions, which is against the spirit of the constitution in Article 201(d), which calls for prudent and responsible use of public money.
  3. The proposed bill is also in contravention of the Constitution especially in regard to the Article that makes provisions for Public Participation. This is particularly Article 10(a) which deals with the principles of good governance and that emphasize that public participation is an important national value. This is contrary to not only the constitution but also the County Governments Act, the Public Finance Management Act and the Intergovernmental Relations Act.
  4. In regards to the Tug of War for power between the senators and Governors and specifically in regards to the issue of Devolution of powers between the two, governors have stated that the bill seeks to undermine not only their powers but also their participation in the county Budget making process.
  5. In regards to funds, the Commission on Implementation of the Constitution has stated that the bill draws membership from the national and county governments. It has however not stated whether the aforementioned costs would be a charged of revenue allocated to the county government or the national government. It is evident that for any piece of legislation to be effective it should be clear and precise; a characteristic that is clearly lacking in the bill but that can be easily corrected and rectified through amendments.
  6. The Bill has also been criticized for the composition of County Development board that violates the Constitution. The key issue here being the fact that the National government and County governments are distinct entities and the proposed composition of the County Development Boards abuses the mandate of the county Government in managing the affairs of the county. It also duplicates the role that has been set out for the County Government.
  7. The Bill has also erred in proposing an amendment to the effect that county annual budgets should be adopted by the Boards before being tabled in the county assembly. The bill pays no regard to the fact that Budget issues are managed by the Public Finance Management Act. The Bill proposes a complete turnaround in regard to budget making process.

The said amendments should be made through amending the Public Finance Management Act which is the appropriate legislation. The County Budget process is clearly spelled out in the Public Finance Management Act and any proposed changes to the procedure cannot be brought by purporting to amend the county Governments Act.
There is no doubt that the Bill has several errors that need to be acted on as soon as possible. However the Governors and Senators need to look beyond their unnecessary tussle for power and focus on the effect that the bill affects Kenyans. The Senate and Governors also need to establish ways in which they can co-operate within the bounds that still ensure that they act as distinct and separate entities.