How the State’s centralisation agenda through new laws undercuts devolution

Devolution is a fundamental national value and principle of governance. If implemented well, it is central to Kenya’s socio-economic and political transformation efforts. It binds policy and legislative development efforts at all levels of government.

However, a worrying trend has emerged in the implementation of devolution in key sectors of Kenya’s economy.

First, the national government is successfully pushing a legislative development philosophy that centralises nearly all devolved functions. Most of the laws passed in the ongoing phase of the implementation of devolution contain these centralisation agenda.

This sad state of affairs is evidenced in the Water Act, 2016, the National Drought Management Act, 2016, the Land Laws (Amendment) Act, 2016, Community Land Act, 2016, and the Roads Bill which is presently at the Senate for enactment.

In these laws Cabinet Secretaries and national government institutions are to hold massive powers and have discretion to implement development and regulatory functions that the Constitution has devolved to the county governments.

Secondly, the new laws don’t provide, in any way, how the two levels of government will cooperate and consult in the execution of exclusive or concurrent functions.

A meaningful and conceptually satisfying legislative proposal must embrace the post-2010 constitutional requirement that legislation at the national level should clearly outline how the two levels of government will cooperate, consult and relate in the execution of concurrent functions.

It must clearly delineate the regulatory and development powers of a national entity and the county governments.

At the moment there is a ‘regulatory and development crisis’ in many sectors due to ‘lack of law’ on concurrent functions. The Constitution is intrinsically ‘skeletal.’ Many and better laws and policies are needed to breathe life in the document.

Take the case of the Kenya Roads Bill for example. It is arguably one of the worst and most unconstitutional Bill that has been developed in the recent times.

Instead of creating a framework for devolution of road sector functions as required by the Constitution, the Bill has centralised nearly all major functions in the sector.

Old institutions such as the Kenya Rural Road Authority and Kenya Urban Roads Authority have all been retained, albeit under different names.
In the Bill all rural roads in the counties have been renamed as ‘secondary national trunk roads) while urban roads within the jurisdiction of counties have been crudely snatched away.

By doing so, the national government seems to be creating the impression that counties are small little entities that have no capacity and responsibility over road construction for integrated urban development infrastructure.

This legislative philosophy is plainly unconstitutional and is an attempt to undermine devolution. Counties have full powers for functions assigned to them. They have built capacity in the road subsector and are in a continuous process to improve the same.

Ironically, the national government which accuses counties of lacking capacity in the road subsector largely outsources specialised skill in road design, construction and supervision.

Further, it is ironic that it is the self-same national government that is constitutionally obligated to build the capacity of counties and assist them to perform their functions.

The Senate should amend the Kenya Roads Bill and ensure that it contains a framework where counties are afforded the necessary environment, capacity and assistance to undertake their functions in the roads sector.

It should not contain provisions that undermine the Constitution simply because counties don’t have capacity. The capacity is already at the counties. Specialised work in road construction can be outsourced to experts.

We should be looking at creating an environment where counties can access credit from development partners to undertake major development projects for urban road construction than the opposite.

In other economies such as South Africa, India, Germany, United States and Canada, sub-national units are fully responsible for urban infrastructure development. This should not be different in Kenya.

Lastly, the Senate should amend the Bill to strengthen cooperation and consultation between the national and county governments in roads as required by the supreme law. In its current form, the Bill encourages antagonism, mistrust and sectoral fights in the sector.

In this vein, the Bill should contain a specific clause that empowers the Cabinet Secretary responsible for infrastructure to convene a roads forum for the two levels of government to deliberate and agree on pertinent issues in the sector.

These issues should include: Policy implementation strategies for integrated urban development infrastructure; strategies for the engagement of the private sector and development partners in the financing of road projects; development and implementation of standards for road construction in counties; policy strategies to establish an appropriate institutional systems for road sector management, coordination and regulation; policy mechanism to maintain an integrated and co-ordinated transport infrastructure for efficient movement of passengers and freight and support disaster management efforts.

Others are; Sector strategies to develop appropriate road sector funding/financing mechanisms; ways of integrating road construction strategies in land use planning and management; polices to deliver an efficient and effective sector operations to enhance national productivity; mechanisms of applying ICT in road construction planning, operations and management to enhance sector efficiency; and strategies to incorporate environmental protection and resource conservation issues in road sector activities.

Mr Wanyama is a legal compliance specialist.