BY PAUL MWAURA
My attention has been drawn to the ongoing debate in regard to failure by the President to assent to the County Governments Bill. It should be noted that the Constitution establishes distinct security institutions with defined roles. Accordingly, matters of security have been clearly established in the Constitution with Article 238, 239 and 240 stating the principles on national security, the organs and the establishment of a national security council respectively.
The Constitution is also clear on the functions and powers of the county governments. Article 186 (1) of the Constitution states “Except as otherwise provided by this Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule”.
The International Center for Policy and Conflict (ICPC) would therefore like to state as follows;
The Constitution is the instrument that organises and manages governance and state power. In this regard, the Constitution guides on the powers and functions of both the National and County governments. This approach is founded upon the concept of decentralization and devolution of power.
According to Article 10 of the Constitution, which sets out the values and principles of governance, devolution of power is identified as one such value and principle that should guide our governance system. Article 10 (2) (a) “The national values and principles of governance include – patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;”
The county governor is the head of the county executive. Voters in each county elect their governor directly. A governor exercises sovereignty and the executive authority on behalf of the electorate at the county level. This is in accordance with Article 1 of the Constitution which provides that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. The people may exercise their sovereign power either directly or through their democratically elected representatives.”
The Constitution under Article 6 (2) and (3) provides that the National and County Governments shall be distinct, thus implying that the County Governors will be answerable to the Constitution and to the People and not the President. The Constitution further establishes distinct institutions each with distinct and clearly defined roles. Accordingly, matters of security have been clearly established in the Constitution in Chapter 14 of the Kenya new Constitution 2010.
The argument therefore that was advanced by the president in refusing to assent to the County Bill that the security role of the Provincial administration has been moved to the police is not convincing since security issues have been clearly established in the Constitution and there is no evidence of the provincial administration role on security matters.
Articles 262 (the Sixth Schedule) section 17 of the Kenya Constitution 2010 provides that, “within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution”.
It is therefore necessary that a process to restructure the current Provincial Administration in accordance with this provision be initiated and agreed upon to ensure that its functions in relations with County governments are clear. So far this is yet to happen.
The Constitution has gone further to ensure democratisation of the security apparatus in the country. It has established distinct institutions of security solely responsible for security matters and these institutions have been placed under civilian authority under two tiers namely; The parliament through the relevant Parliamentary Committee and The Police Oversight Commission.
The Executive and Parliament should understand that the Constitution is the supreme law and it binds all state organs at all levels. The County Bill and the National Authority and Administration Bills must be read in tandem with the new Constitution especially Article 10 which provides for the principles of devolution.
(Mwaura is the Deputy Director, International Center for Policy and Conflict)