One principal objective of devolved government was to facilitate devolution of economic power through appropriate allocation of functions and resources. Consequently, most contentions between the two levels of government in the first five years of devolution related to function transfer and revenue allocation. From the perspective of county governments, the national government was at best, a reluctant purveyor of the functions that the Constitution has allocated to counties. In some instances, the national government either outrightly refused to transfer functions or transferred only components of county government functions. In the more common scenario, functions would be transferred but the funds required to perform the functions would remain with the national government.
Of course, part of the failure in regard to function transfer can be placed at the door of the Transitional Authority, that had been legally mandated to facilitate the transfer of the functions. The Authority, either for lack of resources, capacity or support from concerned national agencies failed to conclude the transfer of functions by the time its term came to an end. To the credit of both levels of government and the Intergovernmental Relations Technical Committee, the successor to the Transition Authority, many of the function transfer related issues have been largely resolved and consultations on solutions to subsisting issues are ongoing.
However, a new phenomenon has arisen in this arena which risks grossly violating the imperatives of the Constitution in relation to devolution. The most obvious sectors where this is occurring is the roads and water sector. The challenge in both areas arises because these functions are constitutionally shared between the county and the national government. Parliament has been using national laws to claw back on county government functions.
In respect of roads the national government was allocated national trunk roads while the Constitution allocated county roads to the county governments. Because these terms were not defined by the Constitutions it has been left to law and policy to create the jurisdictional boundaries between the two levels of government in respect of the sector. The Roads Bill has not been passed yet but one can already foresee that it allocates components of the function to the National government which ideally should belong to county governments.
It is however in the water sector that serious problems have been wrought by the Water Act 2016. While the Constitution allocates significant responsibilities in relation to water to the national government, the county governments are allocated the function of water service provision. The 2016 Act has some significant defects the primary one being a failure to acknowledge the role of the National Land Commission, who the Constitution vests water resources in and failing to protect the mandate of County governments in water service provision. Indeed, the Act in many instances treats county governments as agents of the national government in the provision of water services. Nowhere is the latter more obvious than in the licensing regime.
The 2016 Act requires that all water service providers, largely county government agencies, must be licensed by the national government Water Services Regulatory Board before they can operate. The Act allows the Board to cancel or vary licenses. Essentially, a county government must seek the approval of a national government agency before it can carry out its constitutionally mandated functions!
Surely the mandate to perform a function carries with it the powers. Any contrary scenario would defeat the very essence of function assignment. Provisions of this character abound in the Act. This scenario where functions are taken away from county governments through national law is untenable. While I do know that there is ongoing litigation on the matter, it is essential that the intergovernmental mechanisms that were put in place to resolve matters of this nature be activated and that the matters be resolved in a manner that respects the Constitution and facilitates effective performance of these functions. That is the minimum we owe to devolution’s success.
- The writer is an advocate of the High Court of Kenya
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