Why Kenya is a unitary state despite the 2010 Constitution

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BY DANN MWANGI

Our sovereign Constitution is categorical in Article 1, Section 4, that we the people of Kenya shall exercise our power at the national and county level.

Article 5 defines the territory of Kenyan and above all, Article 6 elaborates that our territory is divided into counties.

In this regard, an unnecessary storm between the national government and county governments has begun.
The biggest question at hand is whether the 47 counties are fully autonomous from the national government, as alleged by a section of governors and the outgoing Prime Minister or counties must work in tandem with the national government, as demanded by the outgoing President.

This question further raise more queries; is Kenya now a unitary state or a confederation of counties as stated by some individuals? To help understand this matter, it is imperative to know that part of reason why we overwhelmingly voted for the new constitution is because of our insatiable desire to devolve resources to the grassroots which is now in the framework of counties.

This need was because before the enactment of Constituency Development Fund Act, the central government would not distribute the national cake equally and equitably.

Today, the reality of devolved government has dawned on us. However, a careful look at Article 6 of our Constitution states in black and white that although the national and county governments are distinct and inter-dependent, they must work with mutual relations and on the basis of consultation and cooperation.

This Article does not propagate for exclusivity in governance of counties as espoused by governors.

It does not foresee that Kenya is one country consisting of 47 counties or a confederation of counties as stated by the outgoing Prime Minister.

It is for these reasons that the Constitution lays bare in Schedule Four of our Constitution the role of national government in county governments and the role of county governments in county government.

Additionally, the unitary nature of our governance system and power of national government over county governments is elaborated in Chapter Eleven of our Constitution.

The national government can under Article 192 (1) suspend a county government even though the senate can terminate the suspension.

In a confederation of counties, this suspension would be done by County Assembles or Governor’s Summit.

Further, counties have no free hand in borrowing money as Article 212 is categorical that national government must guarantee such loans.

Above all, only the national government can, subject to Article 209 (1) of the Constitution impose income tax, value added tax, custom duties and excise tax.

A county can only impose property taxes, entertainment taxes and only other taxes imposed by an Act of Parliament.

To buttress the unitary nature between the national government and county governments, Parliament passed the Intergovernmental Relations Act to create a platform for consultation and co-operation between the national and county governments and amongst county governments.

In this Act, governors will have their own caucus, called a Council, which shall form an avenue for them to voice their concerns and issues of importance.

Article 7 of this Act recognizes the critical role of national government in administration of county governments.

It expects the formation of national and county government co-coordinating summit which shall be headed by the President or Deputy President.

The role of this summit is to purely ensure smooth running of the county governments and in this respect, the current problems facing governors must be ironed out in this forum.

Therefore, there is no need for governors or other politicians to dramatize and sensationalize this matter as governors have an official channel to air their grievances that touch the national government.

To give a comparative view of how our devolution system is unitary and not a confederation of counties, examples of Germany, United Kingdom and United States would help.

The Basic law of the Federal Republic of Germany envisions the central federal government and the 16 federal states that have independent areas of jurisdiction.

The government in Berlin is responsible for foreign policy, European policy, defence, justice, employment, social affairs, tax and health.

The federal states are responsible for internal security, schooling, tertiary education, administration and local government.

Central government’s area of responsibility is mainly limited to legislation, in which the federal states are involved through their presence in the Bundesrat.

In Kenya, the national government virtually performs the roles of both Berlin government and federal states while counties perform different duties.

The United Kingdom is an example of a unitary state akin to Kenyan system save for counties in Kenya derive their primary legal authority from the Constitution and cannot be recalled at will by national government.

Scotland, Wales, and Northern Ireland which, along with England are the four constituent countries of the United Kingdom, have a degree of autonomous devolved.

The United States federal model is sharply different from Kenyan system as in US, federal states share national sovereignty power with national government.

The only similarity with Kenyan county government is that some federal states have unitary lower levels of government.

Therefore, county governments must work closely and respect the role of national government and vice versa.

Dann Mwangi
Lawyer and Researcher, CPS Research International
[email protected]

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  • still dreaming

  • kipsuter morioong

    mr mwangi, are you looking for government appointment as spokesman of kibaki appointees?

    there is no where in the constitution that says county commissioners, but rather Governors!

    Mind you why are you giving examples of Germany, why not the US states are are soo devolved, very independent and no arm twisting from the federal govt?

  • richard

    well said but we are very far from the real devolution.

  • peter

    very well said.However,i still fell that the constitution is still vague on this matter and it should be reviewed where necessary so as to properly guide us who are scholars of the law.

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