10 years on, sovereign devolution remains far from being a reality

By Ndung’u Wainaina

Constitutional sovereign devolution turned ten last month. There is consensus on two fronts. First, devolution has changed lives and dynamics across the country. Secondly, devolution has played a stabilizing factor in the country.

The underpinning social contracts and the cornerstones of the 2010 Constitution are devolution, public finance, social and economic rights guaranteeing equal society, shared prosperity, and public expenditure that promote equitable development across the country.

The starting point is a comprehensive audit, unbundling, and costing of all functions at both levels of government, and decisive political actions to restructure, align, and rationalize ministries, departments, and agencies to accord with and respect the devolved system of government. This will remove costly, wasteful duplication of functions and release billions of shillings held by ministries, departments, and agencies unconstitutionally. Further, there has to be a complete overhaul of national institutions, policies, regulations, and laws to bring them into conformity with the constitution and devolution. These structural reforms are far from reality.

This persistence of the old-order system of policy and legislative barriers has hindered the full implementation of the devolved functions, funds, and human resources. This is the elephant in the room that the Council of Governors and Senate have avoided confronting head-on. The National Executive and National Assembly have been the biggest obstruction and resistance forces to full devolution. Devolution needs a firm political-legal-governance foundation upon which the future can sustainably stand. Change the underlying institutions if you want to change a persisting economic structure. Consequently, there has to be a radical transformational shift of the institutional and economic system for devolution to provide actual dividends.

The Constitution of Kenya, 2010, the Transition to Devolved Government Act, and the Intergovernmental Relations Act provide the criteria and other related considerations for transferring functions from the national government to county governments. The two Acts of Parliament determine the status of the transfer of tasks, including an analysis of exclusive and concurrent functions that are yet to be operationalized, exclusive functions that are still being performed at the national level, despite having been transferred, the status of concurrent functions, the unbundling of the functions of state corporations and proposing a framework for remedying function duplication and overlaps.

There are exclusive functions that are yet to be operationalized across all counties. The major difficulty concerning exclusive functions is that the national government still heavily performs some of these or specific aspects despite transferring the functions to the county governments. Further, all sectors have not resolved the precise mode of operationalizing concurrent processes. The exact levels of responsibility and accountability of each level of government concerning most of the concurrent functions remain indeterminate.

It is important to note significant functional overlaps and duplications persist. This has created a costly and unnecessary bloated government. The national government’s civil service bureaucracy kept expanding rather than shrinking as the critical functions were devolved. Why this unexplained expansion and strengthening? 

The two levels of government have not always adhered to their respective roles and levels of responsibility regarding the functions that they have been assigned to counties. Their planning and budgeting still capture functions that are legally outside their jurisdictions.

The national government continues to perform functions constitutionally allocated to county governments through Ministries, Departments, and Agencies (MDAs).  The functions of these state corporations largely remain unbundled to date, a process that is a necessary precursor to transferring any component of their functions that county governments should perform.

It is vital to note that implementation of the system of Devolved Government is largely on course. Nonetheless, it was also evident from the assessment that there was a need to expedite the establishment as well as the review of existing policies, legislation, and institutional frameworks to ensure that they facilitate improved governance and service delivery, which can only be attained if the respective levels of government adequately carry out their responsibilities as spelled out in the Constitution and the law.

There are legitimate conflicts in the interpretation of the law relating to the transfer process and concerns about the destabilizing impact of the transfer of functions on service delivery. It is also inevitable that central government officials accustomed to exercising power concerning the functions meant to be devolved will always resist such transfer. However, even where there is agreement at the policy level that functions ought to be transferred, significant bureaucratic glitches at the micro-level hamper the seamless transfer of functions. Significantly, challenges also arise in the funding of functions. The fiscal devolution principles require that any functions transferred must be accompanied by the resources that enable the devolved governments to implement the transferred functions.

After successful multi-party and new Constitution struggles, Kenya’s next challenge is delivering effective devolution for inclusive human development, guaranteeing economic security and quality social and public services for all Kenyans. Counties are the new frontiers of wealth, job creation, and inclusive economic growth. The government is not an employment bureau. Its core mandate is creating a friendly and facilitative environment for the private sector and businesses to thrive and create jobs.

And the world is not waiting for Kenya to squabble over who is sitting where on the table. The world is in the 4th Industrial Revolution with the digital economy. Kenya is struggling with the first stage of Rostow’s stages of growth. Artificial intelligence and other future technologies will surely produce different social and economic configurations than we know today. The economic restructuring strategy of the future entails thinking through alternative future scenarios and mapping out alternative possible proactive responses.

The economic restructuring of the future is about positioning Kenya to compete and win in an increasingly complex world, guaranteeing the security, prosperity, and happiness of the 60 million Kenyans.  It will require deploying a gamut of legal-regulatory-governance regimes, macro and sectoral policies, and programmes to alter the spatial of economic activities, the structure of production from primary to industrial and post-modern service sectors, from peasant to commercial agriculture, from exhaustible natural resources to renewable and dynamic human resource as an engine of sustainable development.

It is time to unbundle Nairobi and loosen its choking stranglehold on the economy and persistent political elite fights to share and consume tax. Nairobi has inadvertently held the entire country down by trying to keep everyone in check. We must have many poles and engines of growth nationwide driven by human capital potential and technology. This is what sovereign devolution is set to achieve.  For devolution to play a pivotal role in transforming the economy and reducing poverty on a large scale, it should be backed by stronger rule of law and better governance, human capital investment, market-creating innovations and technology, competitive tax, and business-friendly legal, regulatory environment; economic diversification, regional trade, and export industrial production; and efficient mobility, connectivity, and better infrastructure.

The Devolution Moment

Devolution enables people to tap their unique potential and prioritize local needs away from the centrally controlled economy, security, and governance.

The Courts have made it so that the National government can enact policy, but the policy must comply with the four corners of the constitution. Article 186 and the 4^th Schedule of the Constitution create an entirely skeletal framework. The constitutional sovereign devolution implementation requires enormous legislation, policy, institutional, and administrative overhaul. The Senate and Council of Governors must wake up from their deep slumber and revolutionize governance in this country. This is the Devolution Moment.

County governments must have a voice in key national fiscal, taxation, and economic policy decision-making processes. It is incomprehensible how national government ministries, departments, and agencies whose core functions have been devolved are still being allocated huge budgets. Yet, most play policy and regulatory mandates while counties are responsible for service delivery. It should be more to counties and less to the national government. In addition, all scattered devolved funds run and managed by the national government affecting key devolved sectors of the economy should be consolidated under the County Treasury.

The National Treasury must be reformed to serve two levels of government efficiently. This will streamline and hasten the transfer of funds, conditional grants, and donor funding to county governments. There is a need to develop the capacity and capabilities of the county governments’ institutions, systems, processes, and procedures of sound policy, law, and regulation formulation; integrated planning, budgeting, and performance management; effective policy execution and quality service delivery. County governments must have a voice in the county policing and law enforcement. The State Department of Interior and the Council of Governors must develop and formulate functional agreements on the security and safety of the Counties.

Counties should conduct comprehensive, transparent audits of County assets, including land and properties, and establish digitized open registries for proper planning and future utility. They should also conduct detailed county-based human resource assessment to harmonize personnel with needs and skills and reduce bloated, unsustainable workforce and wages. The County Public Service Boards must be strengthened and streamlined to enforce the constitutional values on public service in counties. Governors must be barred from employing personnel in the counties.  

Each county government should establish an effective and efficient independent County Government Accountability Office to enforce stringent performance, accountability, and service delivery. This office must stamp out governance malpractices in the County in collaboration and cooperation with other ethics and crimes investigatory agencies. We need a fully funded, structured, intensive civic education on the Constitution and devolution.   (

The writer is Executive Director, International Center for Policy and Conflict; @NdunguWainaina.