Advisory on Transfer of Functions from the National to County Governments
The Commission for the Implementation of the Constitution (CIC) is mandated, under Section 15 (2) (d) of the Sixth Schedule of the Constitution to monitor the implementation of the system of devolved government effectively. It is in this respect that CIC issues the following advisory on the transfer of functions.
Delivery of Services under The Constitution of Kenya 2010
The Constitution of Kenya (CoK) 2010 heralded a new era for Kenya that focuses on efficient, effective and equitable delivery of services to the sovereign people of Kenya while correcting historical injustices. The devolved system of government as set out in Articles 6 and 189 of the Constitution promises Kenyans provision of proximate, easily accessible services throughout Kenya.
To realize this aspiration, CoK 2010 provided a transition period that would allow the County governments the space to plan and develop the requisite systems and structures before the functions listed in the 4th schedule could be transferred to them. Section 15 of the Sixth Schedule of the Constitution requires that there would be legislation by Parliament that would:-
- Make provision for the phased transfer of functions from the national government to the county government, over a period of three years, from the date of the first general elections under the CoK 2010
- Establish criteria that must be met before particular functions are devolved to county governments to ensure that county governments are not given functions which they cannot perform
- Permit the asymmetrical devolution of powers to ensure that functions are devolved promptly to counties that have the capacity to perform them but that no county is given functions it cannot perform.
Pursuant to Section 15 Parliament enacted the Transition to Devolved Government (TDG) Act, 2012. The legislation established the Transition Authority (TA) and mandates it to carry out the following key activities required to facilitate the preparations for the transfer of functions:-
- The analysis and unbundling of the functions set out in the 4th Schedule of the Constitution
- Determination of the resource requirements (costing) for each of the functions to ensure reasonable funding for effective delivery of services
- Preparation and validation of an inventory of all the existing assets and liabilities of government, and the development of criteria to determine the transfer of assets, liabilities and staff of the central government and local authorities
The reason for these prerequisites was the recognition that if the transfer of functions was not carried out properly,county governments would end up being saddled with functions which they had not planned for (as distinct governments) and therefore not perform these functions effectively. This would undermine devolution.
Criteria for the Transfer of Functions
Section 15 of the Sixth Schedule of the Constitution requires phased transfer of functions according to criteria set out by legislation. The Transition to Devolved Government Act 2012 provides the criteria to be met before functions are to be transferred from the national government level to a county government level, to ensure that the process is seamless, effective and lawful.
Other than the first set of functions transferred in February 2013, the transfer of the remaining Fourth Schedule functions is required to comply with the following:
- That a county government having met the criteria (as specified below) referred to by Section 15 of the Sixth Schedule and specified in Section 24 of the TDG Act, applies to TA for the transfer of the function(s)..
- That TA, upon receipt of the request, determines whether the county government meets the criteria set out under Section 24 of the TA Act, and therefore qualifies for the transfer of the function(s).
- That when TA determines, based on the criteria under section 24 of the TDG Act, that the county government does not meet the criteria for the transfer of a function(s), TA shall propose clear and practical measures to build the capacity of the county government to enable the government take over the functions within the shortest time possible: and
- That a county government may appeal to the Senate against a decision made by TA.
Criteria to be fulfilled for the transfer of functions as Specified in the Transition to Devolved Government (TDG) Act
At a minimum, the following are the criteria each county government MUST fulfill in readiness for the transfer of functions from the national government;
- Put in place legislation relating to the function applied for;
- Put in place a framework for service delivery to implement the functions;
- Where applicable, identify or establish administrative units related to the function;
- Have undertaken capacity assessment in relation to the function;
- Have arrangement for and the extent of further decentralization of the function and provision of related services by the county government;
- Have the required infrastructure and systems to deliver the function;
- Have the necessary financial management systems in place;
- Have an approved plan in relation to the function, and
- Fulfill any other variable as may be prescribed after consultations between TA, CIC and CRA.
The criteria must be complied with and any variation from it is a violation of the law and Constitution.
This public notification is to alert the public and all agencies that;
- Any transfer of a function(s) from the National government to a county government, without going through the above process is in violation of the Constitution;
- Steps must be taken to ensure that the necessary arrangements are in place to protect service delivery and ensure that the Counties are able to take up their functions as quickly as possible but within the letter and spirit of the law.
CIC believes that it is critical that County governments take over their functions as early as possible. To this end, CIC will continue to work with relevant State organs and other stakeholders to ensure that there is urgent transfer of functions but that the transfer is effective and protective of service delivery and, is in the interests of the residents of the counties.
In its monitoring role CIC is concerned and has expressed its concern to all relevant agencies on the hurried and sometimes adhoc manner in which the process is being carried out so far. CIC believes that this has the potential to compromise devolution and must be rethought and restructured so that it complies with the letter and spirit of the Constitution and law. We urge the various players to respect, promote, observe and protect the letter and spirit of the Constitution, as they took oath to do. We also specifically call upon the Senate to play its role of protecting the counties and county governments, by ensuring that they get sufficient funding for the legally transferred functions, together with ensuring that the transition process is seamless.
CIC wishes to remind all State organs, pubic officers and the people of Kenya that
- Any public officer or State organs who transfers functions without respecting the process laid down by the Constitution and law violates the Constitution, meaning that the transfer will be unconstitutional
- The public officers involved in the unconstitutional transfer of functions shall be held accountable, and
- County governments risk suspension in the event that they fail to perform the functions transferred to them
CIC continues to jealously guard and remain truthful to what the people of Kenya wished and voted for in the 2010 referendum and will continue to faithfully discharge its mandate and to promote constitutionalism and calls on all agencies to do the same.