By Edwin Musonye
It’s the Executive, Legislature and Judiciary. That is the answer readily given to the question, ‘what are the [three] arms of government?’ So entrenched is the concept in our thinking that we never interrogate it even when have made changes ourselves.
The answer also seems standard across many countries – as can be deduced from Google Search responses. However, the current situation may allow us to appreciate the separation of responsibilities among the branches of government differently. The most compelling viewpoint is that the responsibilities are shared out to the national and county government, and State organs.
Unlike commonly thought, the government structure of Kenya under Constitution 2010 is complex. The highly textual nature of our laws does disservice to many of its users since most remain reeling in confusion, not knowing exactly what lies where.
Some departments wrongfully perform others’ functions based on the understanding of the old order. In the early days there was a tough tussle between the ministry of Land and the National Land Commission in regard to functions. Furthermore, there are still numerous instances of duplication of projects by national government and county government.
The remedy for this is in producing a pictorial or a chart to complement the information. Perhaps in recognition that visuals are at times indispensable in removing indistinctness; in the Second Schedule, the Constitution presents designs of the National flag, Coat of Arms and Public Seal to eliminate any fuzziness.
Let’s debunk some misconceptions.
One, whereas, the three arms exist and play fundamental roles, they are not the hubs of responsibility as captured in architecture of the 2010 document. It openly distributes responsibility between national and county governments. However, it creates an ambiguity in Article 186 (3) when it additionally states: ‘A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.’ The statement disremembers (or sidelines) the reality of existence of the intergovernmental state organs. Some people misuse this slip to assign the national government extra responsibilities with the justification that since it’s not a county function, it must belong to the national government.
Two, the Presidency and National Parliament do not belong to or in the national government. Confusion comes about because they are located in Nairobi, and the general assumption is that public agencies headquartered in the capital city fall under the national government. The President’s functions are split into being (as provided by Article 131 (1) (a) the Head of State [an intergovernmental office] and [head of national] Government.
In actual practice, it’s the being a ‘head of State’ which falls under the intergovernmental state organs, which gives the President clout over the county governors. The governors rightfully know this, and persistently make references to Kenya’s 48 governments. The thinking that the government (national) that the president heads is superior or is on a higher level is misconstrued.
This misreading is demonstrated in attempts to subordinate the county governments through establishing a ministry of devolution in the national government to coordinate relationship with the two governments. (