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Amendments to give national government bigger say in running counties

By JUMA KWAYERA | October 6th 2013
            Attorney General Githu Muigai [PHOTO: COLLINS KWEYU/STANDARD]


The future of county governments remains in doubt following proposals by Attorney-General Githu Muigai to amend devolution laws. The proposed amendments seek to, among other things, scrap the Transition Authority (TA) and replace it with a committee.

The proposed Inter-Governmental Relations Committee will not be as powerful as TA, which legal experts say will in turn give the national government more leverage in regional affairs.

In the proposed amendments, the national government seeks to take advantage of grey areas in county legislation to have a bigger role in the running of regional authorities.

Resource control has been a major point of departure — but a source of bipartisan unity among governors — between the two levels of governments which have since the inauguration of the Jubilee government seemed to talk at cross purposes on matters devolution.

The Statute Law (Miscellaneous Amendments) Bill 2013 proposes the deletion of Section 37 (1) of the Transition to Devolved Government Act 2012, which defines the functions and period TA will be in existence.

It says, “Delete and substitute therefore the following new subsection – the (Transition) Authority shall stand dissolved upon the establishment of the Inter-Governmental Relations Committee under the Inter-Governmental Relations Act.”

Currently, the law gives the Authority three years to oversee devolution, during which it will define the functions of the national and county governments, in addition to preparing assets inventories for the two sets of power.

The Act provides that the “Authority shall stand dissolved three years after the first General Election under the new Constitution or upon the full transition to county government, whichever comes first.”

The proposed amendment does not provide the timeframe or composition of the committee to succeed TA. In its present form, TA chaired by Kinuthia Wamwangi, will stand dissolved on March 4, 2016 – the third anniversary since this year’s polls under the new Constitution.

Some members of TA say they are alive to the move to disband the agency, but would not open up about what is happening behind the scenes. Even more ominous for TA and county governors was President Uhuru Kenyatta’s announcement last week that the line Cabinet Secretary Anne Waiguru would henceforth handle devolution matters.

Transfer of power

Reached for comment, Wamwangi told The Standard on Sunday that he was not aware of the amendments to the law. He said he had not been consulted over it.

Wamwangi pointed out he is not surprised that resistance to devolution would prefer retention of the status quo — vesting authority on the central government.

“We are not aware and we were not consulted. However, we are opposed to the Bill tabled in the Senate seeking to reduce the powers of county governors. Although I have not seen the latest amendments, the tussle over control of county resources and functions sends a wrong signal that devolution faces frustration from many quarters,” said Wamwangi.

But reached for comment, Prof Githu  explained the purpose of Miscellaneous Bill, like any other, was to combine several proposed minor amendments with the sole purpose of removing errors and placing modifications to the existing Act.

Prof Githu maintained the proposed changes were not generated by the Office of Attorney General but rather emanated from individual ministries that wanted a few loose ends tied together.

“And neither is my office responsible for policy content. Unless such proposed amendments touch on the Penal Code or legal aspects, then individual ministry heads, say of Devolution or Interior, are better placed to explain the persuasion behind the proposed changes,” the AG said.

Even if some individual cabinet secretaries have generated changes geared at strangling devolution, Prof Githu maintains, “you cannot kill devolution by merely removing or changing a few amendments of articles of the law. This is because the devolution system of government is enshrined in the Constitution.” Chair of the devolution committee in the Senate Kipchumba Murkomen neither responded to calls nor text messages to his cell phone.

The latest turn of events on devolution comes before the storm kicked up by governors over county governments funding settles. The county governors are on the warpath against the national government seeking at least 40 per cent of the national budget funds to be devolved to regional governments.

The opposition has already raised the red flag, saying the proposed amendments are tailored to frustrate devolution.

Transfer of power to counties has stripped the national government the prerogative on many issues, including resource distribution.

Deputy Minority Leader in the National Assembly Jakoyo Midiwo says while some of the proposed amendments are good, he sees mischief in the push to dissolve TA before its terms ends in March 2016.

He sees it as a move aimed at creating space and relevance for county commissioners. The envisaged Inter-Governmental Relations Committee, he argues, will clip the authority of governors.

Midiwo says that with proper structures, TA should be instrumental in monitoring devolved funds after the national government declined to devolve the offices of the auditor-general and budget controller. “The TA is an independent body. Its removal will adversely affect several other pieces of legislation. The Jubilee government has never been quite interested in devolution. The amendments are intended to transfer the powers of the governor to the national government through the Inter-Governmental Relations Committee,” says the Gem MP.

With the governing Jubilee coalition enjoying numerical strength in both houses of Parliament, there is a high possibility that the contemplated amendments will sail through.

Curious move

A member of the Committee of Experts that wrote the Constitution and recommended establishment of the TA to oversee transfer of functions to the regional governments termed the AG’s move curious.

“One becomes curious why the AG wants to stop TA from carrying out its mandate and replacing it with an intergovernmental committee. Because TA is an independent body, the state wants a committee that is not independent and open to manipulation,” the member said.

The amendment does not explicitly state the membership of the committee that will succeed TA.

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