Why Kenya is a unitary State despite transition to devolution

Dann Mwangi

The Constitution is categorical in Article 1, Section 4, that we the people of Kenya shall exercise our power at the national and county levels. Article 5 defines the territory of Kenya and above all, Article 6 elaborates that our territory is divided into counties. In this regard, an unnecessary storm between the national government and county governments has begun. The big question is whether the 47 counties are fully autonomous from the national government, as alleged by a section of governors and the outgoing Prime Minister or counties must work in tandem with the national government, as demanded by the outgoing President.

This further raises more queries: is Kenya now a unitary state or a confederation of counties as stated by some individuals? To help understand this matter, it is imperative to know that part of the reason we voted for the new Constitution is because of our desire to devolve resources to the grassroots, which is now in the framework of counties. Today, the reality of devolved government has dawned on us. However, Article 6 of the Constitution states that although the national and county governments are distinct and inter-dependent, they must work with mutual relations and on the basis of consultation and co-operation. This Article does not propagate for exclusivity in governance of counties as espoused by governors. It is for these reasons that the Constitution lays bare in Schedule Four the role of national government in county governments.

Additionally, the unitary nature of our governance system and power of national government over county governments is elaborated in Chapter 11 of the Constitution. The national Government can, under Article 192 (1), suspend a county government even though the Senate can terminate the suspension. In a confederation of counties, this suspension would be done by County Assembles or Governor’s Summit. Further, counties have no free hand in borrowing money as Article 212 is categorical that national government must guarantee such loans. Above all, only the national government can, subject to Article 209 (1) of the Constitution impose income tax, value added tax, custom duties and excise tax.

A county can only impose property taxes, entertainment taxes and only other taxes imposed by an Act of Parliament. To buttress the unitary nature between the national government and county governments, Parliament passed the Intergovernmental Relations Act to create a platform for consultation and co-operation between the national and county governments and amongst county governments. In this Act, governors will have their own caucus called a Council, which shall form an avenue for them to voice their concerns and issues of importance.

Article 7 of this Act recognises the role of national government in administration of county governments. It expects the formation of national and county government co-ordinating summit, which shall be headed by the President or Deputy President. The role of this summit is to ensure smooth running of the county governments and in this respect, the current problems facing governors must be ironed out in this forum. For example the Basic law of the Federal Republic of Germany envisions the central federal government and the 16 federal states that have independent areas of jurisdiction.

The government in Berlin is responsible for foreign policy, European policy, defence, justice, employment, social affairs, tax and health. The federal states are responsible for internal security, schooling, tertiary education, administration and local government. In Kenya, the national government virtually performs the roles of both Berlin government and federal states while counties perform different duties. County governments must therefore work closely and respect the role of national government. The reverse is also true.