Why we must say no to fragrant breach of constitutional principles

A curious advert was run by the Water Regulatory Authority (WRA) in the media this week which exposes some of the incessant challenges that transitioning from a centralised system to a devolved system exhibits. In the advert the Authority, a national government body established under the Water Act 2016, requires all persons wishing to drill boreholes to seek their approval and pay requisite fees. It expressly declares that county governments have no role in this arena as, in the view of the Authority, the same is contrary to the Constitution and more particularly the Water Act.

In my short life in the devolution space, I have come across numerous instances where National government entities have sought to encroach on County roles. The Roads Authorities have continued to manage what are practically County roads. In agriculture, national government institutions routinely perform county government functions. Few such encroachments have however been as brazen as the WRA advert. As a matter of basic principle, the reason why it was felt necessary to devolve was to ensure that government functions, programmes and services were decentralised to the lowest possible level to facilitate local planning, local decision making and local implementation.

Determine priorities

A reading of the Constitution will show that most services other than security and education were devolved to counties so that local realities would determine priorities and modus of function implementation. In relation to the services devolved to the counties, the national government was left with the role of policy making and standard setting. Which makes sense. In the many years prior to devolution, major decisions of prioritisation of local development and the mode of delivery of local services was determined at Nairobi and communicated to the regions. This led to dysfunctional development which many times failed to address local realties. And yet in that time, at least the national government bureaucracy existed in all sectors right down to the grassroots and so could inform the government of local dynamics. But even then it was recognised that decisions on implementation of local programmes and projects required very localised input hence the decentralisation programme that was the hallmark of the years prior to devolution. This need for local input in programmes and service delivery is the reason why function distribution between national and county governments emphasized the principle of subsidiarity; that functions must be performed by the level of government most able to effectively perform the service.

What is shocking is that six years into devolution, a national government body, in a sector where the national government has minimal technical and bureaucratic interaction at the local level, desires to make programme decisions on local issues exclusively. The WRA sitting in Nairobi wishes to determine where, when and how many boreholes will be drilled in Wajir County. Yet the county government exists to plan how best to deliver services to its citizens and plans and expends resources accordingly.

There is no doubt that the Constitution allocates the function of water services to these local governments; though interestingly the WRA advert ignores this aspect of the Constitution. There is also no doubt that in water scarce counties, boreholes are the primary mode by which water services are provided. So, while the Constitution clearly requires the Marsabit county government to perform the water services function, some National government body has allocated itself a significant portion of that function on the basis of some mis-reading of the Constitution and a defective Water Act.

Unfortunately, many of us will assume it is a routine bureaucratic misunderstanding, the usual spat between Council of Governors and the government. No, this is serious matter and it is not about governors fighting the national government over functions. It goes to the very heart of why we bothered to devolve and ignores all the principles of devolution. If the WRA is allowed to get away with this functional overreach, why would national government agencies not seek to perform every county function? It is the season to say No to this fragrant breach of constitutional principles. Over to you

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- The writer is an Advocate of the High Court of Kenya  

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