County powers, entrenched in the constitution, are intended to be exercised autonomously. They can only be varied or removed through a constitutional amendment, in which process the Senate or the county assemblies will have a key role.
In order to assess the powers and functions of counties, it is necessary to relate them to the objectives of devolution. The objectives were discussed in last week’s article in this series, when five broad purposes were identified: diversity; national unity; democracy, self—governance and accountability; economic and social development; and the equitable distribution of resources.
The recognition of devolution in the Constitution enhances the role of counties in the political system and makes the exercise of county powers an integral part in the pursuit of the core constitutional objectives.
This is a fundamental shift from the former political system where the powers of local authorities were given by ordinary laws and were subject to administrative controls of the ministry of local government.
County powers, entrenched in the new Constitution, are intended to be exercised autonomously (although the national government often has the power to set “national policy”).
They can only be varied or removed through a constitutional amendment, in which process the Senate (meant to safeguard county interests) or the county assemblies will have a key role, and are able to prevent the weakening or removal of county powers.
In this article we examine the scope of county powers (the various bodies that exercise them will be discussed in a later article), how responsibilities are divided between national and county government, the relationship between levels of government in the exercise of powers, how powers can be transferred from one level to the other, the issue of resources and capacity for the discharge of county responsibilities, and what can be done if county powers are misused.
This will provide insights into the reality of powers and functions, and how they fit into the larger scheme of the Constitution, particularly objectives of devolution.
The structure of the distribution of powers and functions
The constitutional scheme for the distribution of powers is complex. It is not easy to understand how it might work. Schedule 4 has two lists of powers and functions, one of the national government and the other for counties.
Article 186 explains how these lists operate, resulting in 4 types of powers: one each for the national and county governments, the third for concurrent powers (that is powers available to both levels), and the fourth is residual (to the effect that powers not in the previous three types belong to the national government).
Article 186(2) says that a power which appears in the both the national and county lists is “concurrent”, leaving the reader a hard job, given that similar subjects in the two lists are not defined in the same terms (e.g., transport, water, disaster management, policies, planning and development, and housing).
When national and county law or policy on a concurrent power conflict, the national law or policy prevails. The complexity is compounded by clause 4 of Article 186: “For greater certainty, Parliament may legislate for the Republic [entire country] on any matter”.
Does it mean merely that the national government can legislate on any subject, but that if the law clashes with a county law on a subject on the county list, the county law prevails? Article 186 does not clarify this.
What are the “concurrent powers” is not very clear; in other countries with similar systems these powers are clearly listed in the constitution, but not here for some (unknown) reason.
Article 186(2) says that a power which appears in the both the national and county lists is “concurrent”,—but it may not be easy to understand whether they really conflict or operate in different public domains.
Take health: the national government’s power is over health policy and national referral facilities; counties are responsible for “county health services”.
Anything not mentioned (perhaps a national vaccination campaign) is a residual matter and a national responsibility. What is “concurrent”? The division of labour seems reasonably clear.
Article 191 deals with what happens when national and county laws conflict, but only when the conflict is on a concurrent power. A national law would prevail over a county law only if one of two situations applied. The first is that national rather than county law is really necessary. for effective regulation, or for the economy or for national security.
Second, if the law affects only one county, but its purpose is to prevent “unreasonable action” by the county (i.e., that action is bad for the economic, health or security interests of Kenya or another county, or impedes national economic policy).
If being responsible for “health policy” means the national government can make any law on any health topic, little may be left of county powers. If it does not, then it is hard to see what “concurrent powers” exist in relation to health, and what effect Article 191 will have.
The same is true of other areas of government activity. The fact that the national government has policy-making powers over almost all sectors may be interpreted to mean that most or all functions performed by counties are essentially concurrent powers and functions shared by both levels.
On the other hand, the Constitution could be read as creating exclusive powers of policy-making and policy application for the national and county government respectively within the various shared sectors.
If the first approach is taken, both levels can legislate on matters allocated to counties, subject to the provisions on conflict of laws. It also means that very few powers will be residual powers (unassigned functions) that belong to the national government.
If the second approach is taken, many of the functions will be treated as exclusive county powers. The dilemma here will be how to draw the line between formulation and coordination of policy (which belongs to the national government) on the one hand, and implementation on the other hand (largely a county function).
Another complication is that the word “including” is used whenever county functions are listed in the Fourth Schedule and this implies that the list of county functions is not exhaustive.
This suggests that some unlisted functions are county functions, and not necessarily residual functions which constitutionally belong to the national government.
Interpretation of county powers
Perhaps the drafters of these rules anticipated that they would give rise to considerable litigation. In anticipation of this, Article 191 says that “a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict” (clause 5).
The courts are likely to play an important role in the clarification of ambiguities that we have mentioned, in restricting or expanding the scope of county powers.
It is clear that the powers allocated to counties are open to more than one interpretation, all of which can be generally tenable and this is a weakness in the design of county powers in the Constitution.
However, policy makers and stakeholder must go for an approach that fits with the concept of devolved governance, and one which gives effect to the Constitution and enhances the pursuit of the devolution objectives discussed in the previous article.
The intention of the Constitution is to divide power vertically between the national and county governments. Accordingly, the approach which assigns more functions exclusively to the counties functions has a greater potential for achieving the objectives of devolved government and broader constitutional objectives.
This also means that the clause which provides that the national government can, for greater certainty, legislate for the Republic on any matter should be narrowly interpreted.
It should not be read as implying that the national government can legislate for counties. It means that national legislation should be general framework legislation that is “Republic focused” as opposed to legislating for counties, leaving “county matters” to county legislation.
So much for the framework. Now to some substantive powers. The county functions listed in Fourth Schedule include agriculture; education; health; transport and infrastructure; trade and development; public works; culture and public entertainment; pre-primary education, village polytechnics, home craft centres and childcare facilities; county transport’ animal control and welfare; “local” tourism; county planning and development (including land survey, housing, and electricity, gas and energy “regulation”); county public works, fire fighting and disaster management; control of drugs and pornography; and implementation of specific national government policies on natural resources and environmental conservation. In addition county governments hold unregistered community land in trust (Art. 63(3)).
County assemblies are given an important role in the process of amendment of the constitution by popular initiative (Art. 257): a majority of the county assemblies must approve the amendment.
A careful look at both the national and county lists reveals some general patterns in the allocation of functions. First, there is a general attempt to allocate policy-making to the national government, which has policy and regulatory power over virtually all sectors, while counties are mainly left to implement.
Indeed, the bulk of the functions that were generally performed by the former local authorities are now given to county governments. Secondly, there is an attempt to separate functions with a “national-scope” and functions with a “local-scope” which are then allocated to the national and county governments respectively.
For instance, the national government is in charge of “national referral health facilities” while counties are in charge of “county health services”.
However, this division is by no means neat in all sectors. For instance, in the education sector, the national government is in charge of national policy-making as well as primary and secondary schools, a function that is normally allocated to lower levels of government in countries with similar systems.
Exercising powers and functions
The complex, and somewhat confusing, arrangements about county powers are likely to cause tensions between the national and county governments.
To a considerable extent all parties may have to operate on the basis that these arrangements are a framework for negotiations. Fortunately the Constitution places considerable emphasis on consultation, co-operation and co-ordination (particularly Article 189).
It requires each government to respect “the functional and institutional integrity” of government at the other level and to “assist, support and consult and, as appropriate, implement the legislation of the other level of government”.
They must co-operate to facilitate the performance of their functions, if necessary by setting up joint committees and authorities, specially in areas where policy is made by the national government but implemented by counties or where basic services are county responsibility and more advanced services, national.
If there are disputes they must be resolved through negotiations and mediation. Several mechanisms and procedures are appointed to promote co-operation (these will be the subject of another article).
The facility for transfer of functions and powers between different levels of government, so that they reside where they can most effectively be discharged, will also necessitate consultations (Art. 187).
Parliament is obliged to ensure that counties have enough support and resources to enable them to perform their functions (Art. 199(1); this topic will be discussed in another article).
There is strong emphasis on capacity building, and no power will be vested in a county government unless it shows it has the capacity (Schedule 6, sec. 15).
And there are sanctions against a county government which is unable to discharge its functions properly, enabling the national government to take over these functions temporarily (Art. 190), and in extreme cases to suspend the government and hold new elections (Art. 192)—in both cases there are reasonable safeguard against the abuse of these powers by the national government.
We started this article by relating powers and functions of counties to the objectives of devolution. We are now in a position to make a few observations.
We realise of course that it is not possible to assess the feasibility of the objectives merely by reference to the scheme for powers and functions.
Many objectives depend on factors like the quality of leadership, people’s participation, political relations among counties themselves and with the national government—so that formal powers are not the only basis for policies and activities.
However the study of powers enables us to assess how significant is the authority of the counties and whether in reality they are likely to be more independent and vigorous than the former local authorities.
Since so many institutional issues are connected to powers and functions (for example the making of laws about them, and the implementation or exercise of powers), we learn also about the vitality or otherwise of institutions.
But sticking for now to the relations between powers and objectives, we can venture the following. Perhaps we cannot say much on diversity—institutions and their structures are more relevant (and will be examined in another article).
Powers and the way they are negotiated or exercised in the ways we have described may have greater relevance to national building and national unity.
The old constitution with the concentration of powers in the president and central government was no basis for ethnic dialogues and negotiations.
Now there is a complex arrangement of principles, values and institutions determining the allocation and exercise of powers that will almost certainly lead to constant national dialogues among people of different regions and backgrounds, searching for agreements on a variety of social, political and economic issues that are likely to strengthen national bounds.
There are good chances that democracy, participation and accountability will strengthen, due to proximity to government, and the ability of the government to exercise significant powers affecting people’s prospects and lives.
But if the national government is allowed to assert its control over most concurrent powers, the overall system will be less than democratic.
The prospects of economic development seem good, as county governors and legislators seek to create investments, promote trade and create employment—and in general, opportunities for the people.
But is should be acknowledged that the economic powers of the counties are quite limited (nothing on industrialisation, promoting commerce or teaching skills, little authority over land, and all too often forced into implementing the national government’s agenda, rather than its own).
Similar factors may also impede equitable distribution of resources and services (within and between counties), with major policy powers on education, health and housing with the national government—and limited national grants and resources and dependence on county resources which are so disproportionately distributed.
Conrad Bosire is a researcher and Ph D candidate at the Western Cape University in Cape Town - [email protected]