In 2012, prior to the first elections under the new Constitution, I had the privilege, then as a public servant, to visit a significant number of counties to undertake public education on the Constitution and impending elections.
In all the places we went, including far-flung places like Kehancha, Taveta and Moyale, whose access at that time was through treacherous untarmacked roads, there was one common denominator, an overwhelming excitement for devolution. Kenyans understood that devolution was the Constitution’s most fundamental initiative, the ultimate game changer in reforming Kenya’s political and economic malaise.
Finally, they would control their political and developmental destiny and enjoy equity across the nation, independent of partisan politics. Some 12 years since those hopeful days, what we have as devolution is a shell, an ineffective system that hardly meets any of the objectives set out for it in Article 174 of the Constitution. The first assault on devolution was by the Executive.
Whether by refusing to transfer constitutionally and statutorily allocated functions or in allocating funds to counties in a manner inconsistent with the principles set out in Article 203 of the Constitution or by refusing to release the meagre funds in time, the assault has been vicious. The most glaring examples of this assault relate to the retention, 12 years later, of county functions in almost all national government ministries. On finance, between 2013 and 2024, the allocations to county governments have increased by 35 per cent, while those of the national government have gone up by a whooping 65 per cent!
Even more concerning are delayed disbursements to county governments that have crippled them and lowered their esteem before a public that does not understand realities and implications of limited allocations and delayed disbursements.
For instance, as of April, the disbursements for this year have still not been paid to county governments. Yet they must continue to pay salaries and undertake development projects! The second assault against devolution has been by the National Assembly.
Not only has the Assembly excluded the Senate from key law-making roles it has continually used its budget making powers to unconstitutionally retain monies for itself. For instance, even though rural roads are assigned to counties, Parliament has demanded to be allocated the funds assigned for these road’s maintenance leading to an impasse that is now held up in court. Until the judgement of the Supreme Court in Petition No 10 of 2024, the Judiciary was the last protector of devolution.
The Supreme Court had passed progressive judgements that clarified provisions of law, whether on the mandatory involvement of the Senate in critical law-making processes or in requirement for passage of the revenue bills before any level of government could access its share of revenue.
Petition No 10 was a shocking reversal of this progressiveness. In this judgment, the Supreme Court ignored the mandatory provisions of Article 110(3) which requires that before any bill is considered by the National Assembly both Speakers of the House must resolve the question whether the Bill in question concerns counties.
This provision is fundamental to the exercise of shared legislative power and protects county governments from the excesses of a rogue National Assembly. By finding that this provision does not mandate concurrence by both speakers the Supreme Court has allocated unfettered discretion on the National Assembly.
The history of the Assembly in this regard speaks for itself. Now it has judicial protection. The option left to the county governments and the Senate is to wait until Bills are passed through an unconstitutional process and then take them through the lengthy, costly process of judicial determination that they concern counties. The Supreme Court has placed the final nail on the coffin of the devolved system.
Unfortunately, those in leadership at the Executive, the National Assembly and now the Judiciary, in particular the Court of Appeal and the Supreme Court, fail to recognize that with all its faults, devolution was the last remaining hope for reforming Kenya.
I shudder to imagine what Kenyans will do when they finally realise this dream has been stolen by the three arms of government. Cry again, this beloved country.
-The writer is an advocate of High Court
In 2012, prior to the first elections under the new Constitution, I had the privilege, then as a public servant, to visit a significant number of counties to undertake public education on the Constitution and impending elections.
In all the places we went, including far-flung places like Kehancha, Taveta and Moyale, whose access at that time was through treacherous untarmacked roads, there was one common denominator, an overwhelming excitement for devolution. Kenyans understood that devolution was the Constitution’s most fundamental initiative, the ultimate game changer in reforming Kenya’s political and economic malaise.
Finally, they would control their political and developmental destiny and enjoy equity across the nation, independent of partisan politics. Some 12 years since those hopeful days, what we have as devolution is a shell, an ineffective system that hardly meets any of the objectives set out for it in Article 174 of the Constitution. The first assault on devolution was by the Executive.
Whether by refusing to transfer constitutionally and statutorily allocated functions or in allocating funds to counties in a manner inconsistent with the principles set out in Article 203 of the Constitution or by refusing to release the meagre funds in time, the assault has been vicious. The most glaring examples of this assault relate to the retention, 12 years later, of county functions in almost all national government ministries. On finance, between 2013 and 2024, the allocations to county governments have increased by 35 per cent, while those of the national government have gone up by a whooping 65 per cent!
Even more concerning are delayed disbursements to county governments that have crippled them and lowered their esteem before a public that does not understand realities and implications of limited allocations and delayed disbursements.
For instance, as of April, the
disbursements for this year
have still not been paid to county governments. Yet they must continue to pay salaries and undertake development projects! The second assault against devolution has been by the National Assembly.
Not only has the Assembly excluded the Senate from key law-making roles it has continually used its budget making powers to unconstitutionally retain monies for itself. For instance, even though rural roads are assigned to counties, Parliament has demanded to be allocated the funds assigned for these road’s maintenance leading to an impasse that is now held up in court. Until the judgement of the Supreme Court in Petition No 10 of 2024, the Judiciary was the last protector of devolution.
The Supreme Court had passed progressive judgements that clarified provisions of law, whether on the mandatory involvement of the Senate in critical law-making processes or in requirement for passage of the revenue bills before any level of government could access its share of revenue.
Petition No 10 was a shocking reversal of this progressiveness. In this judgment, the Supreme Court ignored the mandatory provisions of Article 110(3) which requires that before any bill is considered by the National Assembly both Speakers of the House must resolve the question whether the Bill in question concerns counties.
This provision is fundamental to the exercise of shared legislative power and protects county governments from the excesses of a rogue National Assembly. By finding that this provision does not mandate concurrence by both speakers the Supreme Court has allocated unfettered discretion on the National Assembly.
The history of the Assembly in this regard speaks for itself. Now it has judicial protection. The option left to the county governments and the Senate is to wait until Bills are passed through an unconstitutional process and then take them through the lengthy, costly process of judicial determination that they concern counties. The Supreme Court has placed the final nail on the coffin of the devolved system.
Unfortunately, those in leadership at the Executive, the National Assembly and now the Judiciary, in particular the Court of Appeal and the Supreme Court, fail to recognize that with all its faults, devolution was the last remaining hope for reforming Kenya.
I shudder to imagine what Kenyans will do when they finally realise this dream has been stolen by the three arms of government. Cry again, this beloved country.
-The writer is an advocate of High Court
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By Kamotho Waiganjo