Devolution

Transferring Knowledge on Relevant Constitutional and Legal Provisions to Political Parties in the Counties in order to Better Prepare them for the Next General Elections

CMD-Kenya continues to convene political parties' leaders' workshops on thematic areas relating to preparation for transition to county government and participation in the electoral process. The counties covered since May 2012 include Isiolo, Marsabit, Samburu, Kiambu, Machakos, Makueni, Kitui, Lamu, Mombasa, Kilifi, Kwale and Taita Taveta. Others are Siaya, Kakamega, Vihiga, and Nakuru. Previously other counties visited were Trans Nzoia, Uasin Gishu, Elgeyo Marakwet, Narok, Laikipia, Garissa, Kisumu, Nyeri, Meru, Embu, Kisii Nayamira, Migori, and Busia. In all workshops at least one hundred participants are invited.

The emphasis was on knowledge sharing on electoral laws, requirements for political parties in the next general election, Independent Electoral and Boundaries Commission (IEBC) guidelines, electoral activity timelines and the relevant information. It was particularly noted that there was need to understand all the features of the modified electoral system and equip party leaders on how to implement some new provisions in the constitution and legislation. For instance, the constitution provides election of 'not more than two thirds of one gender' in all public offices including the legislatures. In the county assemblies, political parties will nominate candidates through the party lists in accordance with the number of seats won in the previous general elections in order to ensure gender balance.

New pieces of legislation and establishment of new institutions are steadily transforming the management of political parties and the electoral process in Kenya. Kenyans, including political party leaders need to know of the changes that are flowing from the constitution and attendant legislation. They should particularly appreciate that there are challenges likely to be faced in the transition process to full devolved government. Political parties need to situate their role of political party leaders in addressing some of these challenges.

The primary focus of the workshops was to facilitate knowledge transfer on relevant constitutional and legal provisions to parties in the counties in order to better prepare political parties for the next general elections, currently scheduled for 4th March 2013. Extensive reference was made to Elections Act, 2011, Political Parties Act, 2011 and some of the materials prepared by the Independent Electoral and Boundaries Commission [IEBC] on civic and voter education. These cover the political governance structures and composition of the three different legislatures, and these are, The National bicameral Parliament which comprises the Senate and National Assembly and the forty seven County Assemblies.
Political party leaders deliberated on the roles of the six different elected representatives i.e. National President, Senator, Woman County representative in the National Assembly, Constituency Representative in the National Assembly, Governor, and Ward representatives in the County Assembly. In all the three different legislatures, provisions for political parties to fill seats in order to ensure gender balance and to cater for special interests are closely examined.

There were question and answer sessions have been found to be particularly useful in removing misconceptions about some of the provisions of the constitution and relevant pieces of legislation. The content generally covers cross cutting issues while addressing other maters peculiar to the counties. In all the counties the following issues have come to the fore:

Lack of Capacity in the Counties to Take Over Certain Functions

Schedule Four [4] of the constitution has provided for the functions that will be devolved to the counties: these are agriculture including crop and animal husbandry, livestock sale yards, abattoirs, and fisheries. Other functions to be devolved include certain health services, cultural activities and entertainment, transport, animal control and welfare, trade development regulation, county planning, pre-primary education public works and services, control of pollution, fire fighting and disaster management control of drugs and pornography and in implementing specific national government policies on natural resources and soil and water conservation and forestry. County governments will not only ensure that people participate in governance but they also assist communities to develop administrative capacity to carry out delegated functions.

There is widespread misconception by citizens at the county level concerning the functions to be devolved after the next general elections. The Transition to Devolved Government Act, 2012 has created the Transition to Devolved Government Authority to facilitate phased transfer of functions outlined above and to develop framework for comprehensive and effective transfer of functions. The authority will determine the specific functions that can be transferred to individual counties depending on their capacity to handle them. This implies that some counties would have more functions transferred to them in the first instance while others will have to wait for their turn to receive them.

The criteria for determining the specific functions to be transferred to individual counties are outlined in article 24 of the Transition to Devolved Government Act, 2012 which provides that functions will be transferred to the counties depending on whether:

  • There is in existence legislation relating to the function applied for;
  • A framework for service delivery has been put into place to implement the function;
  • Whether, where applicable, the county government has identified or established administrative  
  • units related to the function;
  • The county government has undertaken a capacity assessment in relation to the function;
  • The arrangements for and the extent of further decentralization of the function and provision of related services by the county government;
  • There is the required infrastructure and systems to deliver the function;
  • The county government has the necessary financial management systems in place
  • The county government has an approved plan in relation to the function
  • Any other variable as may be prescribed after consultations between the Authority, county governments and the Commission for the Implementation of the Constitution and the Commission on Revenue Allocation.

The Transition to Devolved Government Authority is on the first of three phases of transferring functions to the counties.  The first phase of this transition runs until the next general elections while the second and third phases come after the general elections. The Transition to Devolved Government Authority will be dissolved upon full transition to county governments or three years after the general elections whichever comes earlier.

From the foregoing, it is clear that transition to full will, among other things, involve complex negotiations around the issues relating to their capacity to perform them. Party leaders were cautioned against taking a simplistic view of both the functions to be devolved and the time it will take for the counties to realise the full benefits of devolution.

Managing High Expectations

In addition to bringing services closer to the people, devolved government promises to empower Kenyans to determine their development priorities at the county level. Counties will be allocated fifteen [15] percent of national revenue to be transferred to run their governments to be supplemented by revenue from local taxes.  There shall be created an Equalisation Fund to be allocated five [5] percent of the national revenue to be used by the marginalised counties in order to bring them to the same level of development as the rest of the counties. Inclusivity in government will be achieved by providing for extra legislative seats in the county Assemblies to ensure that there is gender balance and to cater for marginalised groups in the counties.

The party leaders noted that very high expectations have been created by leaders especially in the run up to the general elections. While the timetable to full devolution is contemplating three years, political leaders continue to give the impression that devolution with all its benefits will be achieved instantaneously after the next general elections. Responsible leadership demands that they approach the issues emanating from the devolution process with a sense of realism while anticipating the challenges which will inevitably accompany the change over to the new government structures. From available information, it will take up to three years to complete the transition to devolved government and even longer for Kenyans to enjoy its full benefits. National governments the world over are usually reluctant to cede functions to devolved governments, citing lack of capacity for the latter to perform them. Leaders have a duty to manage the people’s expectations in order to avoid disappointments and frustrations which could result from erroneous perceptions creeping in to the effect that devolved government cannot work in Kenya.

County governments shall inherit the assets and liabilities of the current local authorities. It is common knowledge that local authorities have accumulated huge debts though mismanagement and sheer wastage of public resources and outright corruption. It is possible that a substantial part of resources allocated to the counties from national governments could be used to service these debts.

Party leaders also expressed concern at the current trends in which leaders consume large parts of budget allocations in expenditure on luxuries and unnecessary but expensive travels. Should these tendencies get entrenched in the counties, large portion of the allocations could go to administration expenses, leaving little for service delivery and development. They resolved to be vigilant to ensure that county governments exercise prudent management of resources.

The High Cost of Representation


The number of elected positions will sharply shoot up after the next general elections in line with the provisions of the constitution 2010. Currently there are two hundred and twenty four Members of Parliament. These include those elected from two hundred and ten [210] elected from geographical constituencies, twelve [12] nominated members to represent special interests and the Attorney general and Speaker of the National Assembly who are ex-oficcio members.  It is also from among these Members of Parliament that the entire executive [Ministers and their Assistants] is drawn.

On the other hand the constitution 2010 provides for two houses of parliament; the Senate and National Assembly which have a combined total of four hundred and nineteen [419] Members of Parliament including the respective Speakers. The Senate has sixty eight [68] members while the National Assembly will consist of three hundred and fifty [350] in the. The combined total excludes the executive of not more than forty eight [48] Cabinet Secretaries and their Deputies to be drawn from outside Parliament.   

Despite this huge number of representatives, the constitution omitted to state how Parliament will ensure that women comprise at least one third of its members. It is probably just a matter of time before the constitution is amended to ensure that ‘not more than two thirds of one gender’ is elected to parliament. In the event that the amendment is passed, gender balance will be achieved by including candidates from the party lists just as it is the case with the counties. This will expand the National Assembly to a maximum of four hundred and forty four [445] Members of Parliament of the National Assembly and seventy four [75] Senators a maximum total of 520 Members of Parliament including the respective speakers.

The implication of having a bloated Parliament basically increases the wage bill which will obviously be passed on to the taxpayer most likely through increased taxation. The functions of a Member of Parliament have been greatly reduced and their role is now limited to making national laws and providing oversight. They no longer do implementation of projects and even more offices dealing with issues of representation have been created. Their representative role has been curtailed too because the Governor, Woman County representative have enhanced profiles to speak for the citizens in the geographical area of the County. In the near future, it might be necessary to ask whether having a large number of national legislators necessarily improves the quality of legislation.

The Changing Face of a Political Party

The workshops considered the increasingly decisive role of political parties in ensuring smooth transition to full devolved governance. Until 2007 when the Political Parties Act was enacted, there was no specific law that provided for the registration, management of political parties. Political parties were required to be registered under the Societies Act alongside all other economic and social formations. The Political Parties Act, 2011 has since been enacted to replace the 2007 law and it has new provisions that are meant to include the requirements of the constitution. The new law requires membership databases from more than half of the counties in order to reflect regional and ethnic diversity, gender balance and representation of minorities and marginalised groups. These provisions are meant to ensure that political parties have a national character.

The Act also provides a formula for encouraging parties to have national outreach and increases the threshold for funding. Unlike the Political Parties Act 2007 which guaranteed funding for all registered political parties, the new law stipulates that it is only those political parties or coalitions that garner at least five percent of the combined national vote that would be eligible for public funding. The law has also sent aside Political a minimum of zero point three percent of the total national revenue which to be shared be shared amongst parties which meet the funding threshold.

The national vote is the number of voters who turn up to on polling day times six votes which every one of them will cast. For example, let us assume that fifteen million [15m] voters turn up to cast their votes in the next general elections. The national vote will be the sum total of all the votes cast i.e. 
15 million x 6 elective offices = a total of 90 million votes cast
Five percent of the ninety million votes cast will translate to
5 divided by 100 times 90, 000,000 votes = 4.5 million votes for a party or coalition to qualify.

While this threshold will definitely reduce the number of political parties that would be funded, it remains to be seen whether the funding will improve the quality of political parties as autonomous institutions of political governance.

Challenges of preparing credible party lists

The constitution allows for nomination of women through the party list at the counties in the event that not enough women have been elected to ensure that not more than two thirds of either gender is elected to public office. Few political parties have entrenched the criteria for nominating women and determining their ranking on the party list. In fact the higher one is on the party list the more chances they have of becoming members of the county assembly. The process of deciding who to be included in the party list can be abused by party officials who may select their cronies or accept favours as a basis for inclusion and ranking on the party lists. It is therefore important that the parties develop rules and regulations for identifying band nominating deserving persons to the party lists. Other wise political parties will face plethora of disputes if inclusion on the party lists is not participative and/or seen to be fair.

The large number of candidates to be voted in during the next general elections

The next general elections will be contested by a large number of candidates from amongst whom only six will be elected for the offices of National President, County Senator, County Women representative in the National Assembly, Constituency representative in the National Assembly, County Governor, and ward representative in the County Assembly.

The IEBC is yet to roll out a voter education programme to educate the electorate on how to vote. It is particularly urgent for voters to be sensitised on how to vote in order to avoid the risk of having too many spoilt ballots.

Election offences

The constitution requires that all candidates pass the test provided in chapter six of the constitution. Article 72 of the Elections Act 2011 provides that a party will be disqualified from participating in the lection if it knowingly nominates a candidate who does not meet the requirements of the constitution, particularly those relating to integrity and ethics. This means that parties must exercise due diligence when vetting candidates especially because whenever a candidate is disqualified, the party cannot legally replace the disqualified candidate.

Several election offences have been identified and shall attract heavy penalties. Such provisions include the offences relating to voters cards, and voting where one risks a penalty of a fine not exceeding one million Kenya shillings or imprisonment of a term not exceeding six [6] years or both if one:   

  • Found in possession of another person’s voter’s card.
  • Sells or offers for sale any ballot paper
  • Found in Possession of a stamped ballot paper
  • Puts into a ballot box any other than the ballot paper
  • Takes out of a polling station any ballot paper
  • Marks another person’s ballot paper
  • Pretends to be unable to read or write so as to be assisted.
  • Pretends to be visually impaired or suffering from other disability so as to be assisted in voting.

Other Offences include those relating to: multiple registrations as a voter, register of voters, voting, personification, treating, undue influence, bribery, election, use force or violence during election period, use of national security organs, use of public resources, illegal practices, employers allow employees reasonable period for voting.

It is therefore vital for all players in the upcoming elections to understand these facts and make a conscious effort to move from past laxity in enforcing election offences penalties in order to allow this nation to achieve the much needed and awaited change in the electoral process.