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Kenya's new constitution, a progressive framework for decentralisation
On 4 August 2010, a new Constitution was approved by two third of the registered Kenyan voters in a national referendum organised as a part of the fundamental reforms agreed upon by the Kenyan governmental coalition in 2008. The Constitutional referendum falls under Agenda 5 of the “peace accord”sponsored by the international community, and facilitated by the Panel of African Eminent Persons led by Kofi Annan, former Secretary General othe United Nations, which saved Kenya from the scourge of violence and insecurity in the aftermath of the general elections in 2007.
Kenya’s new fundamental law include eighteen chapters, which deal with very practical matters related to the management of the country as a sovereign Republic ranging from the “Bill of rights” to the “National Security”. It also lays down principles on which a modern order should be established by enshrining rules, which are essential to establishing a democratic society.
One of major innovations of Kenya’s new Constitution, which reaffirms the “sovereignty of the people”, is the establishment of a devolved system of governance to promote a democratic and accountable exercise of power. While strengthening the national unity by recognising diversity, Kenya’s new political system gives powers of self-governance to the local level in order to enhance the participation of the people in making decisions affecting them. It also recognises the right of communities to manage their own affairs and to further their economic development, including the provision of basic services.
By devolving power from the centre to 47 governance entities called “counties”, Kenya’s new Constitution builds upon the principle of “subsidiarity”, which is the underlying rationale of decentralised governance. The new Constitution stipulates that the establishment of “county governments” shall be based on separation of powers. It recognises that the county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively. It also rules on a balanced gender representation in the county government, as no more than two-thirds of the members of representative bodies shall be of the same gender.” Unfortunately the new Constitution overlooks the municipal level and does not distinguish between urban and rural areas. Municipal Councils and Mayors seem to have disappeared while “local authorities” are only briefly mentioned in the 6th schedule of the Constitution. This shortcoming will hopefully be addressed by future national legislation.
Kenya’s new Constitution further transforms the country’s legislature into a bicameral system by establishing a Parliament, which shall consist of a National Assembly and a Senate. While the National Assembly shall represent the people of the various constituencies nation-wide, the Senate represents the counties, and serves to protect their interests. More importantly, there shall be a real democratic practice at the county level with a local government consisting of a county assembly and a county executive. The political power at the county level will not be concentrated in the hands of an individual executive, but a county executive committee consisting of a “county governor”, “deputy county governor” and “members appointed by the county governor with approval of the assembly, from among persons who are not members of the assembly”.
Kenya’s new decentralised system of governance provides an appropriate institutional framework in support of local economic development, as the new fundamental law will also reform the current budgetary system, which has not been favourable to local and urban development over many decades in the country’s history. The new Constitution provides clear principles and a framework for the management of public finance, which promote openness and accountability, including public participation in financial matters, as well as equitable sharing of national revenue and the powers of taxation.
The new law also provides for an “equalisation fund”, into which shall be paid one half per cent of all the revenue collected by the national government to be used for the provision of basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation.
This attempt to reform Kenya’s fiscal system is much welcome. Even more significant, the new Constitution has introduced a completely new public finance management system to reduce the upper hand and discretionary powers of central governmental bodies, e.g. Ministry of Finance and the Treasury, by creating new constitutional offices with new roles and responsibilities. This is translated in practical terms into the establishment of a “Commission on Revenue Allocation”, who should be responsible for making recommendations on: “equitable sharing of revenue raised by the national government between the national and county government, as well as among the county governments”. Most specifically, the law stipulates for every financial year that the share of the revenue raised nationally, which shall be allocated to county governments “shall be not less than fifteen per cent of all revenue collected by the national government.”
In that connection, each county government is empowered to prepare and adopt its own annual budget and Parliament shall by legislation ensure that county governments have adequate support to enable them to perform their functions. Kenya’s Constitution also forbids the delay of the share of national revenue due to the county, except when the transfer has been stopped for financial control.
On the other hand the relationship between County Governments and other Local Authorities, be they cities or urban municipal councils, will require careful analysis, particularly to clarify the role and position of the Mayors and councilors vis-à-vis County Governors and County Assemblies. Should local authorities and County Governments exist together as implied by Article 184 and the 6th schedule, it will be important for the Parliament to delineate the areas of jurisdiction and the functions of each level of local government and to update the Local Government Act.
Kenya’s new Constitution is good news for the country and could provide a model for Africa. The Bill of rights provides a framework for social, economic and cultural policies, which further recognises the right of the Kenyan citizens to accessible and adequate housing, and to reasonable standards of sanitation and water. The endorsement of the new Constitution by a vast majority of the people on Kenya signals a crucial “re-birth” of this country.
It is also good news for the international community assembled within the United Nations system. UN-HABITAT is not only a partner of the Kenyan Government, but it is one of the two Programmes of the United Nations headquartered in Nairobi. As the City Agency of the United Nations, UN-HABITAT has been supporting the efforts of the Kenyan Government to engage in the ongoing reforms, which should aim at promoting the urban and housing development sectors for the benefit of the disadvantaged Kenyan populations. It is a positive development that Kenya’s new Constitution recognises the “equitable access to land” a fundamental principle of its land policy, as “all land in Kenya belongs to the people of Kenya collectively as a nation, and as individuals.”
Kenya’s new Constitution also echoes the work of the Governing Council of UN-HABITAT, which approved of the “International Guidelines on decentralisation and strengthening of local authorities” in 2007 to assist policy reforms and legislative action at the country level. The Guidelines recommend to acknowledge local authorities in “national legislation, and if possible, in the Constitution, as legally autonomous sub-national entities with a positive potential to contribute to national planning and development”.
UN-HABITAT’s Guidelines on decentralisation set out a number of principles which are very well reflected in the Kenyan Constitution. They aggregate different dimensions of democratic practice combining representative and participatory democracy. The notion of democracy involves the empowering of citizens to take part in the decision-making process and the strengthening of the capacity of local governments to carry out the tasks for which they are elected. The principles of “subsidiarity” and “proportionality” underlie the relations between various spheres of government. Subsidiarity states that decision-making should be as close to the citizen as possible, while proportionality states that decisions should be taken at the level where they can be best carried out. Finally, the fiscal and human resource necessary to support local autonomy as stipulated in the Guidelines have been recognized by the Kenyan Constitution with a certain number of principles that allow local authorities (county Governments) to both fulfil their tasks and maintain their autonomy even when grants are transferred from central budgets.
UN-HABITAT focuses on three components in order to fast track the implementation of the International Guidelines on decentralisation: (i) advocacy and partnerships at the national level, (ii) capacity development, and (iii) monitoring and reporting on progress. A strengthened partnership between the City Agency of the United Nations and the Government of Kenya within the context of the country’s new Constitution would be useful to other countries interested in the implementation of the international Guidelines on decentralisation and the promotion of local democracy for sustainable urbanisatio
 Daniel Biau, Director of the Regional and Technical Cooperation of UN-HABITAT, has led the drafting of the International Guidelines on Decentralization and managed the negotiation process.
 Alain Kanyinda has been Coordinator of UN-HABITAT’s Programme on Decentralisation since 2002.
 See Chap. Six
 See Chap. Eleven, Part 1, Art. 174
 Id, Art. 175
 See Chap Eight, Art. 93 - 98
 See Chap Eleven, Part 2, Art. 176 - 179
 See Chap. Twelve
 Chap Twelve, Part 1, Art. 203(2).
 See Chap Four
 See Chap Five, Part 1, Art. 60 (1a) and 62(1).
 International Guidelines on decentralization, 2007, Sect. C, Art. 1(1)
 Id., Sect. A, Art. 1 (1 – 9)
 Id., Sect. B, Art 1 (1-6)
 See Proposed Constitution of Kenya, 6th May 2010, Chap. 12, Art. 201 - 208