Letter To COG-Special Message To The Council of Governors

I nt er nat i onal Cent er f or Pol i c y and Conf l i c t
Empowering People Transforming Public Policy

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Ambank House, 13
th
Floor
Utalii Lane, Off University Way
P.O. Box 44564-00100 Nairobi
To: 5
th
September, 2014
Hon. Isaac Ruto
The Chairman
Council of Governors and Governor Bomet County
Delta Corner, 2nd Floor, Opp PWC Chiromo Road, Off Waiyaki Way

P.O Box 40401-00100, Nairobi, Kenya

Cc:
Hon. Peter Munya
The Chairman
Legal Affairs and Human Rights and Governor Meru County

Hon. Ahmed Abdullahi
The Chairman
Finance, Commerce and Economic Affairs and Governor Wajir County

Dear Sir,
Ref: International Center for Policy and Conflicts Special Message to the Council of Governors
Greetings from International Center for Policy and Conflict.
International Center for Policy and Conflict (ICPC) is a non-profit and autonomous human rights public
policy research, advocacy and education institute. ICPC espouses a vision of a free society with dignity,
equality and justice for all. The Institutional mission is to create, promote and engage platforms that
transform societies.
This letter serves as a special message to the Council of Governors to address two crucial issues namely,
the derivative of authority of County Governments and Governors; and secondly, the source and
solution of persistent problems confronting county governance.


Tel: +254(020) 2219757/0714 838894
Fax: +254 (020) 2223188

Ambank House, 13
th
Floor
1. Authority of County Governments and Governors

Kenya is neither a unitary nor a federal state. It is a unique middle ground of two extremes. The
devolved system of governance ensures powers, authority and functions exercised by Counties are
constitutionally conferred.
County government powers are not temporary but perpetual. They do not reside in the national
government but rather, in the Constitution. Constitutional provisions on objects and principles of
devolution cannot be repealed or amended by either parliament or national government. They can only
be altered in a referendum.
The Constitution explicitly divides Kenya into 47 Counties stating clearly that national and county
governments are distinct and interdependent. This clearly implies Kenya is no longer a unitary state in
the real sense of it even if the country has a single Constitution governing it. Governors do not derive
powers and/or authority from the President but directly from the people. They exercise the sovereign
will of the people and are answerable to them either directly or indirectly through the established
democratic institutions.
Governors govern not on prerogative of the national president, but in accordance with the supreme of
the land and the interests of those who elected them. Governors take policy positions to advance the
interests of the county and more significantly, in ensuring the county electorate is provided with quality
public services and their welfare improved while observing accountability, transparency and public
participation.
We therefore urge individual Governors, the Council and County governments to strongly breathe life to
constitutional policy principles and strengthen their institutions of governance. Currently, their approach
to enforcing constitutional principles is very timid allowing national government space to bully and
intimidate them.
2. Tackling the persistent County Governance problems
The independent Constitution attempted to redress the colonial state inherited defects through an
elaborate devolution design but the central government frustrated it. It (central government) succeeded
in dismantling the devolved system of government and quickly moved to consolidate its political-
constitutional gains in the policy realms.
The central government posited itself in policy and practice as the engine of development. The state was
seen as capable of mobilizing capital for major investments, and holding the wisdom and entitlement to

Tel: +254(020) 2219757/0714 838894
Fax: +254 (020) 2223188

Ambank House, 13
th
Floor
allocate developmental resources. Centralized economic planning and decision making was policy.
Centralized state power and the fusion of economic and political power caused the discriminatory
investment and decision-making in public policy. This model failed the people and has had distinct
political costs.
Fifty years later the script remains the same but with a different strategy to dismantle devolved system
of governance. As Council of Governors, you have failed to address and cast the devolution concept and
its instruments in the shape of county government in the legitimate course intended by the people.
The old centralized order infrastructure of state is a real threat to devolution and efforts aimed at
bringing fundamental change provided in the Constitution. After more than one and a half years of
establishing the County governance, the centralized state lingers on. It is refusing to vacate. Through a
combination of skilful political maneuvering and thoroughly planned national government machinations,
the old state constitutes the very core threat to realizing fully functional county governance.
Even if it (national government) may pretend to side with and support devolution, it has not hidden the
centralization agenda of its own. It therefore cannot be trusted to guarantee the aims of the devolution
for inclusive development, human freedom and social justice. In fact, if Kenyans want to stay true to the
aspirations and fruits of devolution, they must be thoroughly critical of the old order state infrastructure
and demolish it.
Constitutionally, the County is the confluence and engine of participatory democracy, inclusive human
development and human security hub. It offers the nexus between governance, security and economics
while influencing and shaping the direction of planning and implementing local socially-inclusive
economy and human development creating a better life for all citizens and shared wealth and
opportunities.
At the heart of the persistence crises confronting devolved system is maintenance of the old centralized
government and its entire infrastructure that is deploying all means to reassert and recentralize the
power, resources and authority. The governance and development policy decision making is still
controlled by the central government (now national government). Take for instance, the critical
functions such as those of agriculture and health. They are constitutionally fully devolved yet the
national government remains with the entire budgets of those functions at national level. The Senate,
which has the constitutional responsibility of protecting interests of the counties, is completely
compromised and part of the systematic dismantling of the county governance.
In order to fully establish constitutionally devolved unitary state system of governance; ensure
progressive, inclusive and democratic state restructuring to end the existing centralized and unitary

Tel: +254(020) 2219757/0714 838894
Fax: +254 (020) 2223188

Ambank House, 13
th
Floor
structure of the state and provide maximum power, functions and rights to the county governments
closer to the local people, the Council of Governors must robustly and firmly train its focus on policy
and legal process of forcing the national government to accede to the following immediately:
1. All national government ministries and their agencies that are still holding onto devolved
functions and being allocated huge budgets should immediately be restructured to accord with
and respect devolution. Further, all national governments parastatals, state corporations and
other sectoral agencies must be restructured to bring them into conformity with devolution. The
Council of Governors should be fully involved in the restructuring and reordering process.
2. Redefining and formulating economic and social policy consistence and flowing from the
Constitution. The Council of Governors must advocate and act to fundamentally alter the Vision
2030, which is generic of Session paper 10 of 1965 of centralized-controlled practice of
development. Vision 2030 cannot oust the Constitution. The Constitution and the Supreme Court
of Kenya legal opinion No. 2 of 2013 shredded the centralized system of development
responsible for uneven, unequal and exclusive socio-economic development. Vision 2030 has to
drastically change and conform to the constitutional reality of devolved governance and
development policy ensuring long-term predictable socio-economic policies at county level.
Social and economic devolution is about people managing their local development affairs,
developing their particular potential and setting their own development priorities sensitive to
local realities. Vision 2030 is in contradiction with this hard fact.
3. Redefining and transforming the character of the national government and civil service at County
level. The county governments are exercising the sovereign will of the people. This sovereignty
is about political, economic, security and administrative self-determination of people at their
local levels. After establishment of the county administrative and governance infrastructure, the
national governments presence at the county should be minimal and only represented by
technical officers from the state ministries working in consultation, coordination and cooperation
with the county government counterparts. The government works and executes its policy
decisions and operations through line ministries.
4. The decentralization of democratic policing and law enforcement system corresponding with
devolved structures of governance of the County. The national government has the responsibility
and duty on broad national security policy. An effective people-centred county policing and law
enforcement system shoulders the burden of implementing the policy. The county governments
have the responsibility of guaranteeing residents security and safety. The County Policing
Authority, with representatives from the National Police Service, Criminal Investigation Service

Tel: +254(020) 2219757/0714 838894
Fax: +254 (020) 2223188

Ambank House, 13
th
Floor
and the National Intelligence Service is the backbone and pivotal agency of driving and
overseeing policing and law enforcement at County.
While the Inspector General constitutionally retains the overall centralized policy leadership of
command and operational direction of the National Police Service, the officer in charge of the
National Police Service at the County is the responsible, accountable and speaks on security and
law enforcement matters, as he or she fully understands the local conditions and priorities. The
National Police Service Commissions role is to conduct recruitment for this post competitively
and transparently from qualified police officers.
The officer is expected to cooperate and coordinate with the office of the Governor in addressing
security priority concerns of the County within the framework of County Policing Authority. The
officer reports to the office of Inspector General of the National Police Service and National
Police Service Commission consistent with the Constitutions scheme of security and law
enforcement arrangement, which should be established, correspond to and with devolved units of
the County.
In conclusion, International Center for Policy and Conflict reckons that a concrete and comprehensive
address of the above four critical issues goes to the soul of effecting devolution as intended and
enshrined in the Constitution of Kenya 2010. Collectively, the Council of Governors is the significant
body in the shaping of the national public policy.
Thank you!
Sincerely,
Ndungu Wainaina

Executive Director, International Center for Policy and Conflict

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Empowering People Transforming Public Policy

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