BY MACHEL WAIKENDA
Last month, the High Court made a very key decision in relation to the transfer of functions to County Governments as part of devolution. The Attorney General was given 90 days to gazette the transfer of the roads function to county governments, in a ruling seen to give devolution a lifeline.
High Court Judge Mumbi Ngugi said the country faces the risk of delaying devolution on grounds that the counties lack the capacity to take over devolved functions. She said if this is allowed, the transfer of functions to the counties will keep on being postponed, which will weaken and undermine devolution.
The judge thus gave an order stopping the Kenya National Highways Authority from proceeding with procurement or inviting tenders, awarding contracts or concessions for the use of Class A, B and C road reserve land. KeNHA was also barred from putting up billboards or in any way interfering with the management of roads under the counties.
The Senate, in a resolution in April 2014, said the roads function should be transferred to the counties. It wanted class D and E roads handed over to county governments while class A, B and C are to be maintained by the national government.
There has been a tussle between the Council of Governors and the national government on how to classify roads and when the function should be devolved. The constitution stipulates that the national government should manage national trunk roads while the county governments are to maintain the rest.
The ruling on the roads is critical to devolution and a welcome move for those of us who work in the counties and want to see accelerated development. For instance, we in the Kiambu government should be allowed to maintain the Thika superhighway so that the county can also earn revenue from the businesses around road reserves and from the outdoor advertisements.
Kenya Rural Roads Authority and Kenya Urban Road Authority have been doing a lot of the functions that the counties should be doing. As a result the allocation to county government for building and rehabilitation of county roads has been grossly underfunded.
This is because the national government has continued to allocate resources to KeRRA to construct, maintain and manage rural road network in the country classified as D, E and Others and KURA mandated to develop, manage, rehabilitate and maintain roads in all urban areas and cities in Kenya.
On the other hand, KeNHA has been managing resources arising from billboards on highways while this should be a revenue stream for Counties.
Five years after we started to implement the new Constitution, it is important that we ensure that all county functions are devolved. Of course, this must be done in a manner that ensures that the respective counties have the capacity to shoulder the new responsibilities.
This year, we need to see national government entities focus on functions assigned by the Constitution under the Fourth Schedule, which is mainly regulation and policy formulation and cede implementation of devolved functions to county governments.
Devolution is a noble system that envisages bringing government services closer to the people and giving them a higher say in the running of public affairs. Devolved governments are meant to ensure that more resources get to the grassroots than the case was before.
And those of us working for devolved governments on the ground know that this is indeed true and more remains to come. The fruits of devolution can only become sweeter as we continue to strive to deliver on our mandate.
The National Government and the County Governments must, in the spirit of the Constitution, endear to work together and ensure that devolution works for the purpose of its conceptualization. Article 6(2) of the Constitution is clear that: “The governments at the national and county levels are distinct and inter-dependent and conduct their mutual relations on the basis of consultation and cooperation.”
Neither levels of government can claim to be superior to the other as their roles are clearly stipulated in the Fourth Schedule of the Constitution. Other than the economic struggle of individual counties, the greatest threat to devolution will be the lack of respect by either level of government to the role of the other.
Counties have been carrying out their already devolved functions with zeal and this has seen major progress across the country. The National Government can therefore not continue holding on to the remaining functions.
It is also true that there has been some teething problems with some of the devolved functions such as health. But as we have seen recently, collaboration between the two levels of government can help deal with these challenges.
In the coming months, ahead of the next elections, we must have an honest conversation on the pending functions for devolved units and how they should be devolved. It is no longer an option to devolve functions to the counties but a requirement.
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