The Legislature (Part II) - Devolution

Blog Loise Mwakamba
In this article, I will examine devolution as it is proposed in the draft Constitution in Chapter Eleven. Although I have called this the Legislature Part II, the article shall examine county governments as a whole.
Devolution (Article 174)
The principle reasons for the devolution of power are to provide self-governance to the people, move Government services closer to them, enable communities to make decisions that take their own peculiar circumstances into account and facilitate decentralization of State organs. This is a sensible concept, but we shall now see how this is to be implemented.
Counties (First Schedule)
The unit of devolution is to be a county. The country is to be divided into 47 counties, as listed below:
Central Nairobi Rift Valley North Eastern Eastern Nyanza Western Coast
Nyandarua Nairobi City Turkana Garissa Marsabit Siaya Kakamega Mombasa
Nyeri West Pokot Wajir Isiolo Kisumu Vihiga Kwale
Kirinyaga Samburu Mandera Meru Homa Bay Bungoma Kilifi
Murang'a Trans-Nzoia Tharaka-Nithi Migori Busia Tana River
Kiambu Uasin Gishu Embu Kisii Lamu
Elgeyo Marakwet Kitui Nyamira Taita Taveta
Nandi Machakos
Baringo Makueni
Laikipia
Nakuru
Narok
Kajiado
Kericho
Bomet
5 1 14 3 8 6 4 6
County Governments (Article 176)
Each county is to have a government of its own consisting of a county executive committee and a county assembly.
County assemblies (Article 177)
A county assembly shall consist of
  1. Members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
  2. The number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;
  3. The number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and
  4. The Speaker, who is an ex officio member.
County executive committees (Articles 179, 180)
Each county is to have an executive committee consisting of a county governor and a deputy county governor. Further, the county governor is to appoint (with the approval of the county assembly) a further number of committee members that shall not exceed:
  1. One third of the number of county assembly members in the county assembly, if that assembly has less than 30 members, or
  2. If the county assembly has more than 30 members, the executive committee members to be appointed by the county governor should not exceed 10.
County governors are to be elected by the voting electorate in the same election as county assembly members. County governors are to nominate a deputy county governor as “running mate” and the two shall run as a team, in much the same manner as the President and the Deputy President. There is a restriction that one cannot serve as county governor for more than two terms, or as deputy county governor for more than two terms.
Functions and powers of county governments (Fourth Schedule)
The functions, powers and areas of oversight of the county governments are—
  1. Agriculture, including—
    1. crop and animal husbandry;
    2. livestock sale yards;
    3. county abattoirs;
    4. plant and animal disease control; and
    5. fisheries.
    6. County health services, including, in particular—
      1. county health facilities and pharmacies;
      2. ambulance services;
      3. promotion of primary health care;
      4. licensing and control of undertakings that sell food to the public;
      5. veterinary services (excluding regulation of the profession);
      6. cemeteries, funeral parlours and crematoria; and
      7. refuse removal, refuse dumps and solid waste disposal.
      8. Control of air pollution, noise pollution, other public nuisances and outdoor advertising.
      9. Cultural activities, public entertainment and public amenities, including—
        1. betting, casinos and other forms of gambling;
        2. racing;
        3. liquor licensing;
        4. cinemas;
        5. video shows and hiring;
        6. libraries;
        7. museums;
        8. sports and cultural activities and facilities; and
        9. county parks, beaches and recreation facilities.
        10. County transport, including—
          1. county roads;
          2. street lighting;
          3. traffic and parking;
          4. public road transport; and
          5. ferries and harbours, excluding the regulation of international and national shipping and matters related thereto.
          6. Animal control and welfare, including—
            1. licensing of dogs; and
            2. facilities for the accommodation, care and burial of animals.
            3. Trade development and regulation, including—
              1. markets;
              2. trade licences (excluding regulation of professions);
              3. fair trading practices;
              4. local tourism; and
              5. cooperative societies.
              6. County planning and development, including—
                1. statistics;
                2. land survey and mapping;
                3. boundaries and fencing;
                4. housing; and
                5. electricity and gas reticulation and energy regulation.
                6. Pre-primary education, village polytechnics, homecraft centres and childcare facilities.
                7. Implementation of specific national government policies on natural resources and environmental conservation, including—
                  1. soil and water conservation; and
                  2. forestry.
                  3. County public works and services, including—
                    1. storm water management systems in built-up areas; and
                    2. water and sanitation services.
                    3. Fire fighting services and disaster management.
                    4. Control of drugs and pornography.
                    5. Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.
Summary and conclusion
Now, as per Wikipedia, there were a mere 2,247 wards in Kenya 11 years ago, in 1999. There will be a further 94 governors/deputy governors per county as well. Let us add in roughly a third of the wards as executive committee members, i.e. 749 members for each county. Even assuming (generously) that no special seats for gender balance and for the representation of minority interests are required, we are looking at a rough estimate of about 3,090 county government officials. Of course, the issue here is whether this can be afforded.
No doubt many of these wards exist at present, and are represented through county, municipal and city councils. Thus the incremental cost will compromise mainly of the costs of running the county executive committees. However, it is not in doubt that there will be a significant additional burden of Government added by the implementation of devolution in this manner. It remains to be seen whether the benefits of the devolution of the services listed above to county level will outweigh the costs of that devolution or not.
Next: The Judiciary