The Citizen Handbook


Fundamentals of Devolution


Understanding Devolution

Transition Mechanisms

Kenya’s transition to a devolved system of government requires changes to existing institutions and legislation passed by Parliament to empower new ones. Article 261(1) of the Constitution stipulates that Parliament pass key legislation within a specific period to ensure a smooth transition to devolved government. The table below lists the legislation as mandated in Article 261(2) and the Fifth Schedule (Legislation to be enacted by Parliament) of the Constitution in order to make devolution function on the national and county levels of government.


Transitional Legislation for Devolved Government

Location in the Constitution

Deadline

Status

Speaker of a county assembly

(Article 178)

Aug 27, 2011

Enacted

Urban areas and cities

(Article 183)

Aug 27, 2011

Enacted

Support for county governments

(Article 190)

Aug 27, 2013

Enacted

Removal of a county governor

(Article 181)

Feb 27, 2012

Enacted

Vacation of office of member of county assembly

(Article 194)

Feb 27, 2012

Enacted

Public participation and county assembly powers, privileges and immunities

(Article 196)

Aug 27, 2013

Enacted

County Assembly gender balance and diversity

(Article 197)

Aug 27, 2013

Enacted

Legislation to effect Chapter 11

(Article 200; Sec. 15 of the Sixth Schedule)

Feb 27, 2012

Not fully enacted*

*Not fully enacted as of the time of writing of this section

Source: Adapted from the Fifth Schedule (Legislation to be enacted by Parliament) and Article 261(1), The Kenya Constitution 2010

The Transition to Devolved Government Act, 2012

The Transition to Devolved Government Act, 2012 (No. 1 of 2012), which commenced on 9 March 2012, provides a framework for the transition to devolved government in accordance with section 15 of the Sixth Schedule to the Constitution. Specifically, the Act provides for:

   · A legal and institutional framework for a coordinated transition to the devolved system of government while ensuring continued delivery of services to citizens;

   · The transfer of powers and functions to the national and county governments;

   · Mechanisms to ensure that the Commission for the Implementation of the Constitution (CIC) performs its role in monitoring and overseeing the effective implementation of the devolved system of government effectively;

   · Policy and operational mechanisms during the transition period for audit, verification and transfer to the national and county governments of assets and liabilities, human resources, government and local authorities, and pensions and other staff benefits of employees of the any other connected matters;

   · Closure and transfer of public records; and

   · The mechanism for capacity building requirements of the national government and the county governments and make proposals for the gaps to be addressed.

Transition Authority

The Act establishes the Transition Authority, which is comprised of a full-time chairperson and eight other full-time members appointed by the President, in consultation with the Prime Minister and with the approval of the National Assembly (see First Schedule of the Act). The Transition Authority also includes Principal Secretaries from the Office of the President and the ministries responsible for devolution, public service, finance, planning and justice. The Attorney General is also a member of the Authority but serves in an ex-officio capacity.

The Authority must elect a vice chairperson from among its members within seven days of their appointment - s/he must be of opposite gender of the Chairperson. The Authority must also recruit and appoint a Secretary responsible for the Authority's day-to-day operations.

Authority Functions

The primary function of the Authority, as mandated in Article 7(1) of The Transition to Devolved Government Act, 2012, is to facilitate and co-ordinate the transition of the devolved system of government as provided for under the Constitution. Additional functions include:

     · Submitting a progress report on the transition process to the President, Prime Minister, CIC and CRA;

   · Publishing progress reports in the Gazette;

   · Auditing the assets and debts of local authorities;

   · Conducting an inventory of staff for both the central and local authorities;

   · Conducting civic education of the public on county governments;

   · Developing county profiles;

   · Determining which town qualifies as a city and municipality;

   · Assisting new county officials to develop their budgets;

   · Building the capacity of county officers in their new duties;

   · Transferring the functions originally done by national government authorities; and

   · Evaluating the performance of county governments and reporting their findings to CIC and CRA.

Guiding Principles

The Transition to Devolved Government Act, 2012 (Article 14) directs the Transition Authority to adhere to the following principles in the conduct of its work. They are to:

   · Perform its functions subject to the Constitution;

   · Be accountable to the people of Kenya and ensure their participation in the transition process;

   · Facilitate the transition to the devolved system of government in a transparent, objective and fair manner;

   · Promote and sustain fair procedures in its operations;

   · Ensure technical and administrative competence for the better carrying out of its functions;

   · Be non-partisan and non-political in its operations; and

   · Apply and promote national values and principles provided under the Constitution.

Transitional Plan

The Transition Authority is responsible for issuing guidelines for implementation plans created by various State or public entities. These plans must be submitted to the Authority and CIC for review and monitoring. Each of the 47 county governments must submit their transition plans to the Authority and CIC following the first elections under the 2010 Constitution. The CIC is responsible for monitoring the progress of transition plans and may request progress reports. Also following the first elections under the Constitution, the transition plans must be shared with the National and County Government Co-ordinating Summit and the Council of County Governors (more on these two bodies below).

Transition Period

The transition period refers to the period between the date of the first elections and three years after the first elections under the Constitution of Kenya 2010. The transition period occurs two phases.

Start of The Transition to Devolved Government Act, 2012 (Mar 9, 2012)

First general election under the Constitution

Three years after the first general election under the Constitution

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Phase 1

Phase 2








The first phase, Phase 1, is the period between commencement of The Transition to Devolved Government Act, 2012 (on March 9, 2012) and the date of the first election under the 2010 Constitution. The second phase, Phase 2, is the period between the date of the first elections under the 2010 Constitution and three years afterward. Fourth Schedule of the Act outlines the specific activities of Phase One and Phase Two of the transition period.

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