NATIONAL CONSTITUTIONAL CONFERENCE DOCUMENTS THE FINAL REPORT OF TECHNICAL WORKING GROUP “G” ON DEVOLUTION OF POWERS APPROVED FOR ISSUE AT THE 110 TH PLENARY MEETING OF THE CONSTITUTION OF KENYA REVIEW COMMISSION HELD ON 30 NOVEMBER, 2005 TABLE OF CONTENTS Page: 1. Introduction……………………………………………………… 4 1.1 Committee Mandate……………………………………… 4 1.2 Method of Work…………………………………………. 5 1.3 Role of Experts…………………………………………… 6 1.4 Study Visit………………………………………………… 6 2. Committee Debate………………………………………………. 6 2.1 Principles of Devolution………………………………….. 7 2.2 Levels of Government……………………………………. 8 2.3 Units of Devolution………………………………………. 9 2.4 Variation of Boundaries………………………………….. 10 2.5 Distribution of Functions…………………………………. 11 2.6 Finance and Fiscal Management…………………………. 12 2.7 Taxation Powers…………………………………………. 13 2.8 Borrowing by Governments……………………………… 14 2.9 Public service at devolved levels of government………… 14 2.10 The Senate……………………………………………….. 14 2.11 Balance of gender and diversity…………………………. 15 2.12 Government during transition …………………………… 15 2.13 Removal of Elected Leaders…………………………….. 15 2.14 Publication of laws………………………………………. 15 2.15 Conflict of laws………………………………………….. 15 2.16 Recommendations on Transition………………………… 16 3. Conclusion………………………………………………………. 16 4. Analysis Of Issues On The Report And Draft Bill …………… 17 4.1 General Debate…………………………………………… 17 4.1.1 The Devolution Structure………………………… 17 4.1.2 Principles of Devolution…………………………. 17 4.1.3 Role and Place of Local Government ……………. 17 4.1.4 Structure and Management of Nairobi……………. 19 4.2 Analysis of the Draft Bill…………………………………. 19 4.2.1 Part I Structure and Principles of Devolved Government……………………………………….. 19 4.2.2 Part II Regions…………………………………….. 24 4.2.3 Part III—Districts…………………………………. 29 4.2.4 Part IV – Locations……………………………….. 34 4.2.5 Part V – General Provisions Relating to Devolved Governments and their Members………………… 36 4.2.6 Part VI – Finance…………………………………. 36 4.2.7 Part VII – General……………………………….. 41 4.2.8 Consequential Amendments……………………… 44 2 5. The Recommendations And Decisions On The Draft Bill As Agreed By Technical Working Committee …………………….. 48 5.1 Distribution of Governmental Functions…………………. 146 5.2 Taxation Powers………………………………………….. 150 Appendices…………………………………………………………… 152 Appendix A: List Of Members…………………………………… 152 Appendix B: Agenda……………………………………………… 154 Appendix C Minutes……………………………………………… 184 3 1. INTRODUCTION The Devolution Committee examined the Commission’s Report and Draft Bill, as well as the Special and Supplementary Working Documents on Devolution of Power and the revised draft Bill on devolution of powers as required by the Constitution of Kenya Review Act, Cap 3A. The Devolution Committee was guided by the values, objects and purposes of review enshrined in section 3 of the Review Act, inter alia : • Promotion of people’s participation in the governance of the country through the devolution and exercise of power; • The respect for ethnic and regional diversity and communal rights, including the communities’ rights to enjoy their cultures and express their identities; • Establishment of a free and democratic system based on good governance and the separation of powers and checks and balances; • Promotion of accountability of public authorities. • Guaranteeing peace, national unity and integrity of Kenya in order to safeguard the well being of the people; and • Ensuring the provision of basic needs of all Kenyans through the establishment of an equitable framework for economic growth and equitable access to national resources. The Committee wishes to thank the Convenor, Hon. (Dr) Adhu Awiti, the Rapporteurs Hon. (Commissioner) Mutakha Kangu and Hon. (Commissioner) Prof. Wanjiku Kabira, the Draftspersons Messrs Peter Barrett and Jeremy Wainwright and the Committee members for their commitment, consistency and participation in the work of the Committee. The Committee had quorum for all meetings. The Committee is very grateful to the Secretariat, who included the following Programme Staff: Fidelis Wabwire Wangata, Menach Evans, Joyce Wamucii, Mary Chesire, Millicent A. Achieng’ and Tambirai Janda. They worked professionally and tirelessly to support the work of the Committee. 1.1 Committee Mandate The Technical Committee on the Devolution of Powers is established pursuant to regulation 49(4) of the Conference Regulations to consider any issue or theme arising from the chapter on the Devolution of Powers and the Commission Report. The Committee, comprising sixty members drawn from different categories of delegates to the Conference, widely and robustly debated inter alia, the following: • The constitution, functions and operations of governments at the various levels of government, with the aim of maximising the mutual checks and balances and securing their independence; • Principles of power sharing between national and devolved levels of government; 4 • Finance and Fiscal management; • The Senate • Intergovernmental relationships in the devolved set-up; • Linkages between the chapter on devolution and the other provisions in the draft Bill, and • Implementation of the proposed devolution system of government. 1.2 Method of Work The Conference Regulations and the Rapporteur-General’s Guidelines for the National Constitutional Conference ad hoc and Technical Working Committees guided the Committee proceedings. The convenor chaired the debates and the questions arising thereof. The Rapporteurs took the Committee through the National Report, the people’s views on devolution, relevant technical working papers, recommendations of the Commission, the views of the Conference expressed during the general debate in the Bomas I and II sessions, the Special and Supplementary Working Documents on Devolution of Powers. The Rapporteurs explained to the members the rationale behind the provisions in the statutory and relevant working documents and generally ensured the availability of technical and logistical support for the Committee. The Committee was assigned a draftsperson. The Committee was also served by a small secretariat consisting of Programme Staff, a clerk, Hansard Reporter and support staff. Local and international observers monitored the proceedings. As agreed by the Steering Committee of the Conference, the first hour of most sessions was committed to general comments on the items on the day’s agenda by members of the Committee as well other delegates from other Committees wishing to make any contributions on the same. The Committee proceeded in line with its adopted work plan on a policy level. Subsequently, consideration of the Draft Bill on an article-by-article basis followed. The Committee as far as possible made decisions by consensus. Most devolution provisions have been mainstreamed in the Revised Zero Draft, and are therefore part of other chapters as well, other than chapter fourteen on Devolved Governments. The Committee faced a number of challenges: The sad, tragic and brutal killing of the Committee’s first Convenor, the late Dr. Crispin Odhiambo Mbai interrupted the steadfast and focussed committee progress. Members were deeply touched by the sad loss but reaffirmed their commitment, focus and dedication to the steadfast progress of the Committee work. The Committee begun its deliberations without the draft Bill on the Devolution Chapter and had to proceed for some time on the basis of the Commission Main Report and the Special Working Document on Devolution of Powers. Questions of linkages of Devolution provisions with other Chapters of the draft Bill were myriad. The Committee made various suggestions on such issues. The Committee hopes that the relevant Technical Working 5 Committees and the Committee of this House will find these recommendations useful and will accept them. 1.3 Role of Experts The Committee invited various experts to address the Committee on various needs, among them the following: financial and fiscal aspects of devolution, distribution of functions between and among the various levels of government, and the cost benefit analysis of the proposed devolution structure. Members noted that a section of the public was opposed to devolution of powers on grounds that the proposed devolution structure would be too expensive to implement. The Committee however found considerable information and evidence to the contrary. The experts who addressed the Committee included Mr. Julius Kipng’etich, Prof. Peter Wanyande, Mr. Nicholas T. T. Simiyu, Mr. Joseph Oyula, Mr. Gilbert Wangalwa and Mr. Willie Samute, the Permanent Secretary, Department of Local Government in the Office of the President, Republic of Malawi. 1.4 Study Visit The Committee visited the Kilifi District Development Programme (KDDP) projects for a first-hand experience of self-governance at the village level. The lessons learnt from the visit greatly enriched the deliberations and informed the decisions on the location government, as well as the accommodation of villages in the context of the devolved set-up. The Committee is grateful to the German Technical Co-operation agency (GTZ) and the United Nations Development Programme (UNDP) for arranging and funding the Study Visit. 2. COMMITTEE DEBATE The Committee debated the Commission Report. It considered various efforts at devolution by the Independence Constitution, the current Constitution and other reforms such as the local government reform initiatives spearheaded by the Association of Local Government Authorities of Kenya (ALGAK) and the Ministry of Local Government. It examined how selected countries