This is the second article in our series on devolved government in Kenya. To follow the serie, it is important to read the first article in the series.
Structures of the County Government and their functions:
A fortnight ago, we explained the definition and traced the historical advancement and the political undertones of the devolved system of Governance. We also shared the unique and positive experiences in the six Coastal Counties of Lamu, Tana River, Kilifi, Mombasa, Kwale and Taita Taveta as a reflection of the strides made since the advent of devolution.
Today, we outline basic structures and respective functions they should discharge. The constitution of Kenya as stated earlier has a whole chapter on devolved Government, the Eleventh. The said portion outlines notable institutions basic to the operation of the devolved Government. Several other statutes like the County Government Act, sets out other essential institutions of the said Government.
Perhaps we start by establishing why it is necessary to understand the structures of the County Government. In our earlier text, we expounded the historical struggles behind the County Government. Core in the priority of Kenyans were the need for self Governance, apt delivery of services and the dire need for fair distribution of the Nation’s resources.
To date, we opine that the new structure has proven effective in providing channels for the expression of regional sentiments. It also contributes to making national policies, as it enumerates regional interests.
Devolution, has given minority parties an opportunity to exercise influence at the local level. Earlier, these parties were basically marginalised from policy making in general. When we demonstrate and take the county Government to Court to allow people to do public participation, as done in Kiambu, Mombasa and Kilifi, it is obvious that the County Governments are being held to account.
There are other political and economic benefits, both at local and national level. One of the most notable results is that the democratic culture among citizens is being enhanced. Democracy is being strengthened by the separation of local and national powers. As new centres of power have emerged, furthermore, so have new checks and balances. The most important aspect is that the people now have opportunities for participating in public affairs, which includes insisting on the effective provision of services.
Two Arms of the County Government:
The National Government boasts of 3 arms of Government as prescribed by Charles de Secondat, Baron de la Brède et de Montesquieu, the French National who called the idea of dividing government power into three branches for the “separation of powers.” He thought it necessary to create separate branches of government with equal but different powers. That way, the government would avoid placing too much power with one individual or group of individuals. He wrote, “When the [law making] and [law enforcement] powers are united in the same person… there can be no liberty.” According to Montesquieu, each branch of government could limit the power of the other two branches. Therefore, no branch of the government could threaten the freedom of the people.
It is noteworthy that the County Government enjoys the services of the Judiciary, as instituted at the national level. As a matter of law, as currently legislated, there cannot be courts designed for devolved governance. Flowing from the above reasons, they cannot appoint judges and prescribe justice. That duty, in the Kenyan context lies with the Judiciary.
The basic and most fundamental structures of the devolved system of Governance remain the legislative arm and the executive. The two are respectively popular as the County Assembly and the County Executive.
The County Executive Committee:
The County Executive Committee as laid down in the County Government is often equated to the Cabinet in the National Government structure. It comprises of the Governor, who doubles up as the chair of the Committee, then the Deputy Governor and any such a number of nominees that the law recommends to the Governor to nominate.
Such members as nominated by the Governor must be approved by the County Assembly before they assume their responsibilities in office. Just like at the National Level, the County Executive should not be drawn from the County Assembly. The idea was to ensure that each branch of the Government is independent and does not suffer duplication of duties.
In a bid to control political expediency, the law controls the number of officers who can be nominated to the executive committee. For counties with 30 members of county Assembly or more, they can only nominate 10 officers while those with less than 30, have a leeway to nominate a third of the members of the county Assembly. It is thus upon every county to establish areas of priority, in accordance with needs of the locals and in line with the constitutional mandates of the county Government, when appointing the members of the Executive Committee. These members head several departments within the County Government.
Just like the Executive in the traditional sense, the County Executive Committee is charged with the mandate of implementation of legislations and policies, both county and national, to the extent that they are permitted. They also supervise the administration and delivery of services in the County. Further, the Executive Committee manages and coordinates functions conferred on them by the constitution.
The legislative authority of a county is vested in, and exercised by its County Assembly (Article 185 of the Constitution of Kenya 2010 (CoK). A county assembly may make any laws that are necessary for, incidental to, the effective performance of the functions and exercise of the powers of the County government under the Fourth Schedule.
A county assembly consists of:
The legislative arm is comprised of Members elected by the registered voters of the wards; a number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly is of the same gender; a number of members of marginalised groups, including persons with disabilities and the youth. The Speaker is considered as an ex-officio member, meaning he is a member by virtue of his status. He presides over deliberations of the County Assembly.
A county assembly, while respecting the principle of separation of powers, may exercise oversight over the county executive committee and any other county executive organs. The Assembly may also receive and approve plans and policies for the management and exploitation of the county’s resources; and the development and management of its infrastructure and institutions.
In observance of their duties, the County Assembly can vet and approve nominees for appointment to county public offices as may be provided for by law. In conducting their legislative role, they approve the budget and expenditure of the county government in accordance with the Constitution, and the legislation contemplated in Article 220 (2) of the Constitution, approve borrowing by the county government approve county development planning; and perform any other role as may be set out under the Constitution or legislation.
Role of the Members of the County Assembly
Members of the County Assembly (MCAs) are expected to maintain close contact with the electorate and consult them on issues before or under discussion in the County Assembly. They are required to present views, opinions and proposals of the electorate to the County Assembly and to attend sessions of the Assembly and its Committees.
The members are like the cog between the citizens and the Government and as such, should provide a linkage between the County Assembly and the electorate on public service delivery. They are also expected to extend professional knowledge, experience or specialised knowledge to issues for discussion in the County Assembly.
In the conduct of their functions, the members are expected to adhere to National Values and principles of the Governance as outlined in Article 10 of the Constitution of Kenya.
Further Administrative Units of the County Government:
It is important to note that in the spirit of devolution, transfer of power and resources to the local levels, the structure of devolved Government as currently intended goes way down to the village levels. Every one of the 47 counties have administrative units, towards ensuring that services reach every person in Kenya.
There exists the office of the Sub County Administrator, who seats at the Sub County level, otherwise known as the constituency level. In every sub county level, there are wards thus the
Beyond the two units, there are villages. The structure here is different. There is a village Administrator and the Village Council. The Village Council is filled by at least three members but not more than five within a village appointed by the Village Administrator. The Council members are expected to have in-depth knowledge of the particular village they serve in. The council is also required to be gender sensitive.
All the administrators mentioned above are required to have professional qualifications and technical knowledge of administration. Their appointment ought to be through the County Service Board, the body mandated to conduct professional recruitment of staff in the Counties.
At their various levels, the Administrators are expected to among other things, develop policies and plans, facilitate and coordinate citizen participation and ensure development activities at the community level to empower locals for their growth. In close proximity, the administrators may also exercise powers delegated by the County Public Service Board.
When summed up, the administrators link the people to their aspirations in the County Government. When you want to know the services provided by the county Government within your ward, walk to the offices of the Ward Administrators and get relevant information. They are the tail chain of the executive arm at the county Government.
County Public Service Boards
The County Public Service Board, also referred to herein as the Board, is like the common department of human resources in the private sector.
The Board comprises of a chairperson nominated and appointed by the County Governor with the approval of the County Assembly. In addition, there are not less than three but not more than five other members nominated and appointed by the governor, with the approval of the County Assembly.
The Board is also required to have a certified public secretary of good professional standing nominated and appointed by the governor, with the approval of the county assembly, who shall be the secretary to the board.
The functions and powers of a county public service board
The board is expected to establish and in necessary circumstances, abolish offices in the county public service. They enjoy the powers to appoint persons to hold or act in offices of the county public service including in the Boards of cities and urban areas within the county and to confirm appointments.
Which reminds me, the management of the Counties with cities and areas classified as towns and cities is rather distinct from counties of rural set ups. Their managements are vested in the Boards established under Urban Areas and Cities Act. Such Boards may establish other officers like Managers in running the Affairs of the City. Such institutions are yet to see the light of the day in Kenya.
The County Public Service Boards also exercise disciplinary control over persons holding or acting in those offices, and they prepare regular reports for submission to the county assembly on the execution of the functions of the Board. The Boards also promote in the county public service the values and principles referred to in Articles 10 and 232 of the Constitution. They evaluate and report to the county assembly on the extent to which the values and principles referred to in Articles 10 and 232 are complied with in the county public service.
The Boards are also expected to facilitate the development of coherent, integrated human resource planning and budgeting for personnel emoluments in counties. They should advise the county government on human resource management and development and on implementation and monitoring of the national performance management system in counties.
The County Public Service boards should also make recommendations to the Salaries and Remuneration Commission, on behalf of the county government, on the remuneration, pensions and gratuities for county public service employees.
In light of the above, it is thus important to note for instance that while area MCAs are elected directly by the people and are expected to have constant communication with the electorates, people ought to seek necessary services from them, those which relate to their mandates. Blaming an MCA for failure to secure a county bursary form may not help you, seek it from the Sub County, Ward or Village Administrators but report any anomaly like skewed distribution of the same to the offices of the MCAs for oversight.
In order to achieve full potential of the county Government, the leadership and the electorates ought to practice what is expected of them, including aligning their campaigns to their mandates. Leaders who promise to deliver things outside their mandates are not just digging their political graves but are messing up with the aspirations of millions of Kenyans in the Devolved system of Government.
BY ZEDDY ADIKA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 7, Issue 4 of October 28th, 2016
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