The vision of democratic inclusive rule of law is fully entrenched in the progressive Constitution of Kenya 2010. It is a vision for sustainable pursuit of human freedom, liberty and human dignity for all Kenyans. This vision is also about structural transformation of the country to achieve shared national identity and citizenship.
A consensus subsist that effective democratic devolved system of development and governance is fulcrum towards realizing the vision. Democratic devolved system of development and governance is about human economic freedom, empowerment, shared prosperity and inclusivity.
Effective democratic devolution is only the avenue for the millions of Kenyans historically marginalized, excluded and denied access to critical services and infrastructure, to be part of Kenya. It is the crucible of nurturing national identity of Kenyans, as everyone will have sense of belonging and citizenship.
Devolved development and governance system is about people-centered polices, processes, systems and institutions. It is about building and expanding local economic development base creating more opportunities, equality and equity. However, the roadmap towards realizing this vision is facing political hurdles.
To ensure devolution as ‘core promise of the Constitution’ is operational and works, the Civil Society of Kenya state as follows:
- The single largest economic and financial risk, which adoption of the Constitution portends is failure of the National Government to rationalize and downsize consistent with functions and structures mandated in the Constitution. Ministries and state corporations, and provincial administration are as intact as they were before the Constitution. Rather than dismantling the old order, national government is strengthening and enlarging both in funding and size.
- Constitution of Kenya 2010 introduced major governance and institutional changes. The Provincial administration is constitutionally abolished. We do not recognize the old order system fronted by County Commissioners. Jubilee Government as first national government under the Constitution was legally required to restructure and downsize national government to accord with and respect devolved system of governance. This is far from happening.
- That consistent with devolution, national government works through line national state ministries. In this regard, national state ministry technical representative Officer should appointed to represent the particularly national government ministry in the county heading professional technical units handling policy, operations, budget, personnel and legal affairs. This creates lean cost effective government with shared governance processes and institutions. The National State Ministry technical officer will be responsible for coordinating and implementing affairs of the Ministry working in coordination, cooperation and consultation with their equivalents in the county departments. The functions of national government at lower levels at the county are carried out through the county administration structures.
- The County Commissioners are agents of recentralizing power and recreating imperial presidency. They are creating a costly parallel system of government at the county. Only the democratically elected self-governance system with Governor exercising executive authority and sovereign will of the people is constitutionally recognized.
- County governments are constitutionally responsible for the political, administration, security and economy policy direction of the County affairs in coordination, consultation and cooperation with national government. It is difficult to see how the entire administrative strength that the national government had before devolution can continue to be fully employed following devolution. This is unnecessarily costly, duplicative and imprudent.
- Governors exercise will of the people just like that President. The office of the Governor and County governance system should be fully empowered to facilitate the operations and work of the National Government in the Counties. All County Commissioners and other civil servants in the former moribund Provincial Administration should be integrated in County governance system on competence, capacity and need basis.
- While national security is subject to the Constitution and Parliament, and is function of the National Government, the national government cannot live in denial of the pivotal role of the county government in security and law enforcement within their county. The Constitution is clear on how a function can be transferred, partially or wholly, from one level of government to the other. The National Government and Council of Governors should trigger Articles 10, 183, 187 and 189 (Transfer of functions and powers between levels of governments) of the Constitution to create properly structured and coordinated framework between County Governments and National Police Service to address security and policing concerns at County level.
- County Policing and Security Authority should be fully operationalised and strengthened. The Authority will review county related security issues prioritized by National Security Council and incorporate local public security concerns to make its decisions. This will create enabling mechanisms for close cooperation, coordination and consultation between the National Police Service and County Government with objective of maximizing the available limited resources for efficiency and impact of security services delivery
County Police Service be fully established under Command of the Officer in charge of National Police Service at County level to be responsible and accountable for public safety and security comprising crime prevention, law enforcement and maintenance of order within respective counties and any other crime not under the responsibility of the national crime agency. This is in tandem with other arms of criminal justice; Judiciary and office of Director of Public Prosecutions that have devolved their services.
- Officer appointed transparently and competitively by National Police Service to be in charge of County Police Service is constitutionally responsible, accountable and speaks on security and law enforcement matters. The officer is expected to cooperate and coordinate with the office of the Governor in ensuring establishment of policing system corresponding with devolved Units and addressing security priority concerns of the County within the framework of County Policing Authority. The officer reports to office of Inspector General, County Policing Authority and National Police Service Commission consistent with Constitution scheme of security and law enforcement arrangement. The Officer will chair the County Policing and Law Enforcement Technical Committee.
- The current Directorate of Criminal Investigations should be thoroughly restructured, reformed and reorganized into fully-fledged autonomous crime and counter crime intelligence Law Enforcement Hub under Director General. It should be well equipped, resourced and highly populated with different tested skills with specialized centers (units) each headed by director answerable to Director General.
- National Police Service Commission be properly constituted, strengthened, professionalized and adequately resourced to effectively and professionally perform its constitutional policy, human resource management and oversight functions. The Commission should draw from the Consolidated fund and manage all expenditures of the National Police Service.
- The Commission and office of Inspector General shall publish annual reports and set priorities and plans of the National Police Service. The National Parliament has constitutional responsibility to monitor and review implementation to enhance accountability and transparency in police policy-making and to enable monitoring of the efficiency and effectiveness of the police service.
Finally, to fully facilitate the devolved system of governance and development as stipulated in the Constitution, the Civil Society has resolved to engage Senate and Council of Governors to embark on the aggressive political process of supporting County Governments to ensure complete overhauling and restructuring of all the national ministries, departments and agencies to comply with devolution. This will also involve accurate costing of the functions to ensure all desired financial resources are devolved to the County governments to deliver on their mandate and improve quality of services.