Kenyans are been treated to one unfortunate circus in regards to the Provincial Administration in regards to the new constitution. Politics has taken the order of the day, yet this arm of the national government handles administrative matters.
True, room for abuse of this system is high but I believe that the county governments will act as a proper check in this front. The unfortunate thing is that the varied interpretations on the issue seem to be guided by interests that are neither beneficial to the country or Kenyans.
In my humble opinion, some of those who have brought forth arguments against the Provincial Administration seem unaware that Kenya remains a unitary state despite introducing the devolved governments under the new law.
I also believe they are unfamiliar with the provisions of Chapter 11 especially parts 3,4,5 and 6.
Article 262 (17) in the Sixth Schedule clearly states that the national government should within 5 years, restructure the Provincial Administration in respect of the new devolved structures. It’s common sense that within means that this can even happen within a day of the enactment of the new constitution or we can wait till the last day.
Restructure is defined as to re-organise; to effect a fundamental change in a system); to change the makeup, organization, or pattern. Nowhere, have I met restructure being defined as do away with or dissolve as has been suggested.
Definitions aside, the more important thing is that the new constitution, in the Fourth Schedule, clearly separates the functions and powers of the national and county governments.
It is clear that the national government led by the president and cabinet will have a role of implementing some of its responsibilities to the lowest level of government. This for instance will include foreign policy, immigration and citizenship, courts, national defence, police services etc.
It will also have the responsibility of coming up with policies that touch on the very business of residents in the counties. For instance, veterinary policy, labour standards, education policy and standards, housing policy, health policy, agriculture policy etc.
The county governments on the other hand, will have the role of implementing some of these policies like crop and animal husbandry, plant and animal disease control, ambulance services, liquor licensing, markets, etc.
We must also not be blind to Article 186 (3) that clearly indicates that a function or power not assigned to the county either through the constitution or national legislation remains with the national government.
Also remember Article 187 (1-2) illustrate the transfer of functions and powers between two levels of government.
I will take a few examples to illustrate why the national government needs representation at the county level. The national government will have more or less a supervisory and monitoring role of national policies at the county government. It will only implement policies in a limited number of areas as illustrated earlier.
According to the new constitution, the national government has the responsibility of coming up with the country’s education policy, standards, curricula, examinations and granting charters – work that is under the ministry of education an arm of the central government. It is also in charge of universities, primary and secondary schools, special education schools and tertiary institutions.
The same law grants the responsibility of the pre-primary education, village polytechnics, home craft centres and childcare facilities to the county governments.
Immigration and Citizenship:
The constitution, gives this function and the corresponding powers to the national government. Just like today, you may need a signature from your chief for you to prove that you are indeed a citizen before getting your ID card. Since , Kenya is still a unitary country, county governments cannot be allowed to run a parallel system of issuance of ID cards or a parallel security system
The national government has the responsibility and power of coming up with the health policies and national referral health facilities. But it will be the role of the county governments to run health services in their respective areas.
It is thus clear that the national government needs representatives at the county level who will handle the listed responsibilities. Whatever name, it is given, the provincial administration is here to stay and is needed for the smooth running of the national government.
Any argument to the contrary must be guided by the text and spirit of the new law. The restructuring must be guided by the provisions of the constitution and any other law that may be enacted for the purpose of the devolved governments.