Since 2013 there have been often vicious fights over devolution between county and the national governments.
The national government — and the deep state — is dominated by centrists who do not see why funds should be sent to the counties to be eaten by undeserving simpletons. Funds must be collected from all counties and consumed by its owners in Nairobi.
Article 174 of the Constitution outlines the objects of devolution. Two important parts of this article are to give powers of self-governance to the people and enhance their participation in the exercise of the powers of the state and in making decisions affecting them; and to recognise the right of communities to manage their own affairs in development.
The Constitution requires devolving up to the village level in rural areas. In urban areas, the principle devolution units are cities, municipalities, townships and market centres. Urban areas are required to further devolve themselves into smaller units.
The County Governments Act and the Urban Areas and Cities Act outline how devolution is to be achieved beyond the county headquarters. It requires that representatives of the people at all levels should assume office after elections. County level centrists have been averse to further devolution since 2013.
Kakamega seems to be the only county to effect village councils as devolved units in rural areas in the first five years of devolution. No county effected devolution in urban areas in the first five years. After the 2017 General Election, governors have been setting up urban areas boards. The interest in setting up these boards has been sparked by the World Bank's Kenya Urban Support Programme, which avails funds for development in urban areas.
The principle condition for accessing the funds is the existence of a governance board or committee for the urban areas. The Urban Areas and Cities Act outlines the classification of areas as cities or urban areas. The latter category consists of municipalities, townships or market centres. The classification criteria include population, infrastructure, revenue generation and collection capacity, capacity for waste management, residents’ participation framework and seat of county government.
The boards of city and urban areas are appointed for a term of five years through a competitive process by the governor, with the approval of the county assembly. Members represent various interests, including professional associations, private sector, informal sector, neighbourhood associations, gender equity, persons with disability, youth and marginalised groups.
The struggles for devolution space between the national and county governments has been mirrored at the county level between the executives, led by governors, and boards of urban areas.
Between 2013-14, we witnessed bizarre struggles for office between county executives of Nairobi, Mombasa and Kisumu and the national Executive.
In Nairobi, the Transitional Authority had earmarked the former Prime Minister’s office as the seat of governor. The Deputy President, however, took this office, forcing the governor to retreat to City Hall.
In Mombasa, TA had identified the former provincial headquarters as the governor’s office only for the county commissioner to refuse the governor to occupy space in the building. In Kisumu, the governor occupied the former provincial headquarters and renamed it as “Prosperity House”, and the county commissioner issued orders for the governor to vacate the office on several occasions.
The above perverse office struggles are being repeated between county executives and boards of urban areas. These boards are in essence successors of the defunct local authorities, including city and municipal councils. In as far as possible, infrastructure developed to support local authorities’ work should be used by the boards. The county executive has frustrated this.
The country was subjected to infantile anti-governor debates in Parliament at the inception of devolution. Legislators debated motions to denigrate governors by stopping them from using the title “Excellency”, fly flags on their vehicles and having convoys. We now see some members of county executive try to denigrate board members by saying they are “purely advisory” and go ahead to execute projects without involvement or knowledge of the boards.
The struggles for division of the national cake between national and devolved governments has been intense. Nairobi has tried to trash lawful procedures of division of national revenues and its appropriation by the national and county governments. This sad situation has been replicated at the county level between the county executives and the boards.
With respect to budgeting for urban areas and cities, the annual estimates are to be prepared and submitted in line with the Urban Areas and Cities Act.
In line with section 45(1) of the urban Areas and Cities Act, the steps are as follows: (1) Three months before the commencement of each financial year, a board or town committee shall cause to be prepared estimates of the revenue and expenditure of a board or town committee for that year;
(2) The annual estimates shall make provision for all the estimated revenue and expenditure of the board for the financial year to which it relates;
(3) The annual estimates shall be tabled before the board or town committee for adoption and approval; and
(4) The annual estimates approved by the board or town committee under subsection (3) shall be submitted to the county governor for submission to the county assembly for its approval.
Section 45(4) above is clear. It is expected that the budgeting process is to be participatory. This includes interactions with the governor and CEC. However, once the budget has been prepared by the board, then it is only the county assembly which can alter it. Some county executives have deliberately chosen to misinterpret the law and treat these devolved units as departments. They have then proceeded to unlawfully make budgets for the urban areas or cities.
Accountability and financial autonomy is a key requirement of boards. A reading of Section 46 together with Section 51 of the Urban Areas and Cities Act indicates clearly that boards must maintain and operate their own bank accounts. Indeed, the auditor general audits boards as separate entities.
The major purpose of devolution is self governance. That is to allow the people, generally through, their representatives to participate in making decisions on development and governance. Implicit in this principle is the right of the people to decide on who represents them in organs of governance. Generally, these representatives assume office after some electoral process.
Before 2013, the President would appoint all provincial and district commissioners. These commissioners would then govern their designated areas with delegated authority from the President. After 2013, we have been electing governors and members of county assemblies to govern county on our behalf. This way we are exercising our right to self determination in counties. Citizens in urban areas and cities must also get the right to determine who represents them in boards. Allowing the governor to nominate and appoint representatives in boards is not in line with the spirit of devolution.
Board members appointed by governors, like PCs and DCs before, are appointed to principally serve the interests of the governors. They are likely to be well selected pliant governor’s poodles.
The Urban Areas and Cities Act must be amended to allow for election of board members by citizens. The elections can either be be direct first the post in demarcated electoral areas or through proportional representation in party lists.
Prof Gumbe is former chairperson of the Centre for Multiparty Democracy Kenya
