Delivering effective and efficient devolution

The need for reforms in governance, inclusive county economies and quality services has never been greater

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By Ndung’u Wainaina

Kenya is in the critical situation of trying to consolidate a fragile transitional phase of the country from decades of authoritarianism, macabre violence and promulgation of new constitutional order that established devolved system of governance. It is necessary that we take concrete steps to address comprehensively the deep-seated state fragility, long-standing social political and economic grievances, and re-evaluate the roles and functions of nascent Constitutional social and political institutions that form the basis of securing the political and social stability of the country in long run. 

Kenya is yet to find her long-term solid fundamentals for sustainable inclusive economic growth and development. Though  significant progress has be made, it is still trapped in narrow economy base, social disparities, fragile state institutions, infrastructure underdevelopment, insecurity, an urbanisation crisis, low income and savings, limited employment opportunities, uneven access to resources and falling trade volumes. 

There is need to invest heavily to create and maintain a strong drive for meaningful governance and socio-economic reforms and emphasize inclusive growth, sustainable job creation and public debt cutting. Promoting strong rule of law is the bedrock of a holistic coherent development agenda and foundation for a future growth path driven by inclusiveness and equity. Science, technology and human knowledge are today major determinants of the power and wealth of countries. 

The next 10 years properly ought to be about integrating the country’s economy into the global economy. This is only possible if the government significantly acts on building socially inclusive and environmentally sustainable economic growth. It has to invest in the right fundamentals to make substantive progress in addressing the denial of larger human rights and freedoms, weak and corrupt institutions, socio-political and economic exclusion, and deficiency of effective participation and accountability in governance. Sustained institutional development, rule of law, and security are critical factors for realising sustainable inclusive development in the end. 

To its credit, Kenya has some very resilient people. However, its governance and political system is rotten. The World Bank (1991) identifies four key dimensions of governance:  capacity and efficiency; accountability; predictability and information. Building from World Bank, the Asian Development Bank (1995) identified four basic elements of good governance:  accountability; participation; predictability; and transparency.

The new reform movement is going to pivot to full devolution of power with intergenerational equity, shared economic wealth and resources, and quality public and social services, as well as individual civil liberties in dignity for all forming core ingredients. It is consolidating gains of the multiparty and new constitution through devolution. 

Borrowing from past experiences and expertise, the new change movement with alternative leadership is starting to galvanise. Consensus is that devolution is the glue that unifies the movement. Structured, advocacy-oriented civic education and public participation are the pathways to giving the new movement the momentum and a sense of ownership. This is about people of Kenya taking the driver’s seat of the next phase of deepening democratic reforms, redefining the character of state-citizen relations and determining the wellbeing of the country. 

Having succeeded in forcing through multipartysm, Kenyans switched to struggle for a new constitution in order to defang imperial presidency and democratise state. For close to three decades Kenyans clamoured for a new constitution and change in the way the country was governed. The search for a new constitution was informed by many factors. One key factor was the dissatisfaction with the highly centralised model of governance, associated with imbalance in resource allocation resulting in ethno-regional development inequalities, marginalisation of some communities and a failure to involve the people in governance processes. 

Kenya’s curse is lack of credible, impartial and legitimate public institutions necessary for creating the conditions and rules within which sustained and inclusive economic growth is possible. Strong public sector capacity ensure that authorities deliver quality public services and carry out their regulatory and other responsibilities transparently while strengthening  accountability ties between them and citizens. 

At the moment, the country has to fundamentally alter the Vision 2030 and enact a sound national integrated democratic devolved system of sustainable development and governance policy framework consistent with Constitutional principles and based on rule of law, credible public institutions and long-term predictable public policies. This policy framework should anchor policies that are more effective, equitable and sustainable driven from middle and below. It should create a watertight regulatory framework that is proportionate, effective, transparent and balanced. For fair business competition, sustainability and stimulating investment, the country requires a strong, predictable and transparent legal and justice environment.

Under this framework, everyone should operate within the mainstream socio-economic and political contour. All resources available should be consolidated and channelled in manner ensuring maximise utilisation, impact and return benefits. Currently there is so much wastage that available funds create little impact. Kenya is wasting billions on unnecessarily bloated administrative bureaucracy, and has to fundamentally cut down and rationalise governance structures provided under the devolved governance order.

Effective democratic systems of devolved governance and development are the epicentre of judicious use of resources, providing quality public services and creating sustainable well-paying jobs. The county is the new engine of participatory democracy, human security and socially inclusive economic development. It is the driver that influences the shape and direction of local economies and human development. This is the only path of not only rapidly growing inclusive national economy but also the means to create a better life for all citizens. However, there is no policy framework underpinning this constitutional reality. At the heart of this new devolved system of governance and development is right to development, improving living standards of all people, human rights application on social inclusion and sharing wealth and opportunities equitably. It offers the nexus between governance, security and economics. 

The country needs a lean and efficient government system to epitomise scope and effectiveness. It should be able make the right long-term strategic policy decisions, anticipating change, and meeting new challenges flexibly and innovatively. Every shilling government spends must first be earned. The lighter the burden of government, the better the economy will perform, and the more the people can enjoy the fruits of their efforts. Government, whether county or national, must  seek efficiency gains, minimise waste, find cost-effective ways to deliver services, and benchmark itself against the best private sector practices.

Kenya must raise productivity, do more with less, and restructure as needs and priorities change. This means investing in the right outcomes and citizen-centred policies, capacities and capabilities, alertness, efficiency and high performance. Every level of government faces fiscal constraints. Accordingly, we must create better alignment and greater productivity in government. Governments must consolidate certain processes, organs and institutions. Shared services would reduce duplication and benefited from greater economies of scale.

Every citizen within all communities of Kenya wants share of local development dividends. There are high expectations that county governments will drive the process providing challenges and opportunity to make a meaningful impact on the lives of local communities. For this vision and opportunity to be seized, public and private actors with devolved units must work together in creating sustainable economies. 

It is essential that we create conditions under which county economies can expand and grow. There are two major policy thrusts necessary: credible public sector leadership and governance; and sustainable community investment programs. To achieve this, there are four critical pathways that address actions, implementation and funding. These include: modernised, harmonised and well-structured good governance systems, delivering high quality information-driven public service and public and market confidence in counties; spatial development planning, to exploit the comparative advantage and competitiveness of counties; enterprise support and business infrastructure development; and introducing sustainable community human capacity investment programs that focus on organising communities for development, to maximise circulation of public spend in local economies.

Human capabilities are the primary motor of inclusive economic growth. In the 21st Century, economic advantage depends on the capacity to build human competences and institutions able to capture the potential of the revolution in information and communications technologies. This implies increased public investment in capability-expanding services, of which health and education are the most critical.

Citizens need accurate information. Governance is not the exclusive preserve of the state, whether at the national or county level. It is a shared enterprise involving all those with a legitimate right to participate in the making and implementation of public policy. 

The Constitution of Kenya 2010 did establish a new era of democratic, ethical and transparent leadership, with obligation to promote democratic co-existence, societal tolerance of diversity and boost trust in public institutions’ capacity to deliver public good and social repair. Further, the Constitution 2010 addresses itself to the governance malpractices of the past. However, political corruption and disregard of the rule of law remains a serious barrier to implementing and enforcing the Constitution thus stalling the realisation of the aspirations of the people of Kenya. 

The inordinate problems facing the country do not stem from the Constitution – instead, it is designed to lay foundation for a free, open society based on the principles of social justice and achievement. Democratic constitution is increasingly wrongly turned into the scapegoat for leadership and government failures. In fact, if not for the protection of the constitution right now, the effects of poor governance would have been even worse. The constitution provides rules, values and checks and balances that political leadership does not want,  as a result turning into victim of political zeitgeist. The Constitution empowers and enables, but beyond that, actual change requires human actions.

It is time the country leaders embraced and fully implemented the Constitution,  and began  to invest in building sustainable peace and security in the country. They must, of essence, secure policies that promote and support economic justice and equity, and sustain an agenda of rooting for democracy, human rights and the rule of law.The vision of Devolution builds a cohesive, inclusive and united Kenya. It is a vision of a human rights democratic rule of law state. It creates equality and equity. Devolution is the pivotal bridge to the new constitutional, democratic, inclusive and ethical Kenya. 

The new reform movement will pivot on the full implementation of the Constitution of Kenya 2010 with its core promise of devolution under the banner ‘Katiba, Ugatuzi: Maisha Bora.’  This is a peoples’ movement that begins with a sectoral ward peoples’ assembly. This is the  surest way to build people-centred, robust and stable progressive leadership, an inclusive economy, create more productivity, address the legacy of the past, build more people-centric security and safety, and deepen a devolved participatory system of governance. The new movement seeks to rally the country towards full devolution as it offers vision to establish a more devolved economy and governance system with people at the centre able to tap into their potential and prioritise their needs. It dismantles the old order organisational structure of the state to embrace the democratic aspirations of today by evolving a democratic and participatory vision of social democracy rather than remaining nostalgic about the centrally controlled economy, security and governance. 

The National Assembly in a past session. Both houses have a crucial role to play to propel devolution.

Before providing actionable policy areas, this blueprint makes the following observations on why and how drastic measures to rationalise and restructure national MDAs to cut costs and remove governance duplication, strengthen a devolved system of governance, support county-based economic and private sector investments, and improve the quality social/public service delivery in counties are necessary. 

The Constitution of Kenya 2010 will in August this year turn nine. Coincidentally, the country will have already held its second general elections under the new Constitution. 

The Constitution 2010 did not only significantly restructure the governance system and redesign how the people relate to it; it also drastically established a devolved system of governance, which was a relief from the hybrid mongrel of presidential and parliamentary systems.

This Constitutional order offered renewed hope and aspiration to the Kenyan people and to a country ravaged by many years of dictatorship, economic decay, corruption and human rights violations. However, for Kenyans to enjoy a democratic, secure, stable and shared prosperous future, faithful and full implementation of the Constitution and devolution is necessary.

When Kenyans voted to have a new Constitution in 2010, they expected a devolved system of governance where powers and resources are transferred to autonomous devolved units as ascribed by the Constitution across the country, to enable communities plan their development priorities at the county level. This would make it easier for communities to hold their leaders to account as a result of their close proximity to the people, plan in accordance with their preferences and needs, as well as ensure previously neglected areas receive requisite resources for development and provision of essential services.

The people of Kenya have in the last four years been on a worthwhile journey experimenting the devolution. The results are proving very positive. It is time to start the process of consolidating the six (6) years of dividends of the devolved system of government. 

One major challenge for the devolution process is that the National Government Policy on devolution and the County Government Act were drafted without any comprehensive restructuring of the national government ministries, departments and agencies (MDAs) which remain as intact as they were before devolution.

The national government, while free to infiltrate its policies at the county levels, must do so through the structures recognised under the Constitution and not run parallel or duplicate system. The law is clear that the national government may channel grants, whether conditional or unconditional, to the county governments as additional revenue within the meaning of Article 202 and not any other entity which performs the functions allocated to the county by the Constitution. The national government cannot purport to channel grants to an entity whose intended projects effectively undermine the role of the government at the county level.

In the last four years, the national government has successfully, through the National Assembly, pushed legislative and administrative processes that subvert devolved functions. This is evidenced in the Water Act 2016, The National Drought Management Act 2016, the Land Laws (Amendment) Act 2016, the Community Land Act 2016 and Roads Reclassification Act, among other unconstitutional laws, which courts have swiftly revoked. The situation is currently being escalated through the budgetary process. Further, there are still serious problems on how the two levels of government cooperate and operationalise the execution of shared and or concurrent functions. Further, the costing of the devolved functions has been blocked adversely affecting devolved services delivery by the county governments.  

The Constitution changed the economic, fiscal and taxation policy. The current revenue and taxation policy is fiscally unbalanced as the national government continues to determine the fiscal and taxation policy with very limited participation of the county governments. Further, Vision 2030 has not been radically reviewed and reformulated. Instead, it has been tinkered with to bring it into conformity with the constitutional dispensation. This has had adverse effects on the ability of County governments  to play  meaningful roles in determining the economic, fiscal and taxation policy of the country and also help secure their broad financial autonomy sustainability.

County governments must make sure that every function either directly or indirectly implied by the Constitution to be exclusively devolved or shared or concurrent is implemented. Resources and functions that line ministries, departments and agencies of national government are holding unconstitutionally at national level will have to be surrendered to the county governments. Duplication of functions that cause unnecessary wastage and conflict can be eliminated through Articles 1, 6, 10, 174, 183, 187 and 189 of the Constitution.

County governments are the new factories and innovation hubs for Kenya. They play a pivotal role in propagating local economic development and regulating the private sector in their jurisdictions. In the last four years, the country has seen national government adopt and implement a dangerous debt-propelled economy. Exports, agriculture yields and manufacturing have been declining tremendously. When Kenyans voted for a devolved system of government, they expected power and resources to transform local economic development and ensure efficient and effective service delivery. 

County governments are gaining in authority, powers and legitimacy and become more prominent in driving local economic development. Counties are the new factories and innovations hubs for Kenya. They play an important role in local economic development and supporting private sector in their jurisdictions. An important pre-condition for pro-poor economic growth is that county governments understand their role in supporting private sector development, and are aware of the opportunities and constraints for the private sector in their jurisdictions. 

County governments contribute in various ways to enabling pro-poor economic growth. First, county governments should foster effective and efficient registration and licences for business and property activities. Good economic governance means predictable and reliable action by the county government, through the application of accessible, affordable and transparent policies and procedures. This also implies that taxes and levies should be collected and used in a transparent way. Secondly, county governments should focus on economies based on export-led growth, manufacturing and diversification through building a transparent, favourable competitive environment and property rights regime that supports business. Thirdly, counties must strengthen the devolved system of government as the driver of transforming the peasantry rural agriculture economy into modern high-yield value added export-oriented productivity. This will see the strengthening the county-based local private sector, building inter-county economic cooperation and supporting local small scale manufacturing. Finally, they must ensure regulatory institutions that do not perform well are strengthened including separating legislative policy from executing function to avoid conflict of interest, to ensure efficiency, probity and prudent spending of the public resources.

National government has been unwilling to address the security and policing system in context of devolved system of government, informed by unique local security challenges and dynamics. Localised policing and law enforcement is the bedrock of successful policing and crime prevention. 

County governments should mobilise the country and conduct massive political campaign to force restructuring, aligning, downsizing and rationalising of National Government ministries, departments and agencies of the following sectors to accord with and respect devolved system of government and release billions of the shilling being held at national level: Infrastructure – Roads, transport etc; Energy; Information, Communication and Technology; Education – in terms of technical and vocational training; Health and Sanitation; Security, Governance and Justice; Environment, Water and Natural Resources; Agriculture and land management; Economy, commerce and finance- trade, taxation, manufacturing, borrowing, regulatory, social protection etc; Sports, Culture and Recreation; Urban development, Housing and physical panning; International Relations and International Commerce/Trade.

With the background provided so far, following are actionable policy directions for implementation to strengthen devolved system of governance:

Aligning and increasing allocations to county governments in the national revenue share. Big budget allocations to national ministries, departments and agencies must significantly be reduced as majority of them have only policy and regulatory mandate while counties hold responsibility for service delivery. We must adopt a policy of ‘More County, Less National,’ and review the fiscal, taxation and economic policy to give county governments’ direct and influence voice in conformity with devolution. 

Restructuring, align, rationalise and downsize the national ministries, departments and agencies and regional authorities to support the devolved system of government. This will remove   costly, parallel and duplicating functions and  also release billions of funds being held unconstitutionally by national MDAs. This also includes a massive overhaul of national institutions, policies, regulations and laws to bring them into conformity with the Constitution and devolution, including merging and creating shared governance and administrative structures at the county level. 

Strengthening democratic institutions that facilitate intergovernmental relations and ensure national institutions support devolution to build better constructive engagement between national and county levels.

Streamlining and hasten the process of transferring funds, conditional grants and donor funding to the county governments.

Developing capacity and capabilities of institutions, systems, processes and procedures of devolved units for purposes of sound policy, law and regulation formulation; integrated planning, budgeting and performance management; effective policy execution; and quality service delivery. This also involves developing holistic, county-based development strategies informed by six different pillars of local economic development (LED), namely: economic governance, locality development, enterprise development, social and community development, training and capacity development and technology.

Carrying out comprehensive audit of county assets, including land and property, through detailed transparent audit and establishing open registry for proper planning and future utility. 

Conducting county-based human resource assessment to harmonise personnel with needs, skills and reduce bloated unsustainable task-force and wage. For the country to progress and meet its constitutional obligation, it will require an effective, efficient, professional, ethical and productive public service. 

Institute comprehensive land reforms to ensure accessibility of land resources fairly by all citizens, create transparent land and property registry and enforce equitable share of natural resources wealth.

Devolving certain policing services to address the security and policing system in the context of devolution and be responsible for public safety and security within the county. 

Decentralising and strengthen judicial, prosecutorial and other criminal justice systems at county level, to expedite and facilitate fair, easier access to justice and resolution of disputes. Stronger county-based high standards of ethics and integrity in governance and enforcement of rule of law will be instrumental in safeguarding wellbeing of the Counties and the local people.   

To deepen transparency, credibility and integrity of electoral process, there is need to substantively devolve electoral management process to county level. This will see significant strengthening of the county electoral management secretariat (capacity and capability) to give it full control and management of electoral process at the county, with adequate supervision/oversight from the Independent Electoral and Boundaries Commission (IEBC) headquarters. Changes should therefore be made to strengthen the IEBC at the local level – to decentralise IEBC in terms of devolved authority, as well as powers and operations for local electoral process ownership.

Internally, county governments must set up institutions, processes, systems and procedures that are competent and which deliver. County governments need to review the progress made in their capacity and setting up of institutions and systems. Secondly, county governments must have a strong voice at the national level to leverage collective bargaining on national policy that affects counties, share best practices, and develop innovative solutions that improve county government and support the principles of devolution.

If corruption, wanton theft of tax money, abuse of public office and conflict of interest are cut by more than three quarters, and the resources invested efficiently in developing counties, diversifying economies and supporting expansion of innovative small scale agriculture  and service sectors in the Kenya, there would be millions of decent jobs. I propose establishing a County Government Accountability Office to help improve the performance, accountability and service delivery in the county. This office will be tasked with providing objective, fact-based and timely information in a bid to make county governments more efficient, effective, ethical, equitable and responsive while ensuring value for money and improved county government operations. This office will be independent financially, structurally and operationally. Its work will be to support governors to meet their constitutional responsibilities. The accountability office will conduct continuous comprehensive monitoring and audit of the operations and service delivery to determine whether county funds are spent efficiently and effectively. It will also conduct professional investigations on allegations of illegal and improper activities of county governments, their agencies and employees in addition to generating quarterly reports on how well county government programmes and policies meet their objectives.

Setting up the Public Rapid Assessment and Action Plan to improve the nature, quality and distribution of Service Delivery mechanism to ensure better spending by the County government. Devolution has allowed counties to have more control over their own resources, but prudent and effective spending has been elusive. Having money is just part of the solution. Devolved units ought to analyse how they spends that money. The starting point is an assessment of conditions in particular counties. This mechanism will allow county governments to identify the factors causing poor services and concentrate on systemic, management issues including public financial management. It will then outline an action plan, including the required financing, to deliver improvements, and monitor accountability progress. The plan will seek to identify specific problems in service delivery and then outline an action plan that includes monitoring and accountability of progress. This will curtail misuse and misappropriation of revenue.  This approach will allow county governments to diagnose complex causes of service delivery problems “from the bottom up,” by using a systematic diagnostic framework and inputs from experts to identify specific failures. 

Creating a platform for local governments to exchange their opinion, challenge, issues and best practices is also useful for local governments. An inter-county cooperation of several county governments creates horizontal cooperation among local governments; facilitates gathering of information and opinions from local governments to lobby national government, advocates for members’ interests in national and international policy dialogue and increases governance and transparency by sharing knowledge, information and good practices. Developing a database of successful/unsuccessful projects will help instil Do’s and Don’ts in developing and implementing projects. By looking at the details of actual project structure and financing models, county government officials as well as private investors can learn how to adjust such successful projects to their local context, and how to avoid failures.

A rigorous well-structured multi-stakeholder dialogue on the appropriate system of intergovernmental relations on revenue sharing and taxation policy (this explains why Vision 2030 has to be fundamentally reviewed to conform with devolution).There are still major shortcomings in the current fiscal and taxation policy system and key reforms are urgently needed bringing it into conformity with devolved system of governance. Further, budget making is still largely in favour of the national government. Failure to do a comprehensive costing of functions and setting up of need-based budgeting process continue to weaken the ability by county governments to deliver on their mandates. Major structural reforms are needed in fiscal and taxation policy.  

Establishing mechanisms to enable county governments conduct comprehensive assessment and review the wealth produced within their jurisdiction especially property values and rates to increase revenue base. Local taxation remains underdeveloped, and conditions to capture a portion of the capital gains in land value and economic activities are often not met. County governments generally lack the buoyant tax sources that would produce revenue growth in line with the fact that their responsibilities. The vast majority of taxable goods and services are often concentrated at the national level, and systems of redistribution to county governments through transfers and grants do not guarantee equitable distribution. 

Strong partnerships between county governments and private sector is a prerequisite for growth. County governments play pivotal role regulating, growing and strengthening the private enterprises. County governments have limitations in personnel, funding, knowledge and skills. They also often lack full capacity to develop a project pipelines as a result of poor project definition, appraisal and allocation of risks, output specification, value for money evaluations and limited ability to qualify/evaluate/select private partners as well as poor monitoring mechanisms and governance. Both local governments and local business communities must forge “new alliances” especially in new county frontiers. For international companies and  private investors, more concerted actions at local levels will be needed such as building platforms to showcase projects that really contribute to sustainable development, scaling up impact through developing best practices and project templates or standards, and undertaking effective capacity building around these projects so that they can be implemented.

Finally, there is need to invest in county-based civic education to ensure access to timely and adequate information as stipulated in the constitution, and adhering to proper and timely communication to the local residents and various stakeholders especially partnering with civil society and media makes all the difference. Effective channels of communication, interaction and participation provide critical information and feedbacks in addition to deepening participatory democracy and creating accountability forums. This must entail broadening citizens’ participation in local governance and increasing women and youth participation in public life and politics. Involving community groups will ensure concerns raised are addressed quickly and a correct narrative of the work the government is doing is provided.  It also assists in shaping the county government policy agenda and implementation status.

Writer is Executive Director, International Center for Policy and Conflict

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