War of words between Executive and COG is a threat to devolution

The escalating war of words between the national government and the Council of Governors (CoG) is threatening to reverse gains made across the 47 devolved units since the 2010 Constitution was enacted.

The stand-off is also between Members of Parliament who argue that counties have failed to properly account for the billions of shillings allocated to them and CoG, which is fighting both legal and political battles to take charge of all devolved functions.

The governors strongly feel that devolution is failing because their effort to effectively run their counties is being undermined by the executive and the legislature.

Last year, the High Court froze Sh10.5 billion collected under the Roads Maintenance Levy Fund (RMLF) after the Council of Governors challenged the use of that money by Kenya Roads Board in their counties.

That was after the National Assembly refused to recognise county governments as beneficiaries of the RMLF money in the 2024/2025 financial year budget that they passed in parliament.

Tension escalated further last week, when President William Ruto infuriated CoG by publicly backing the intended control of RMLF by the national government when he spoke at Ntulele in Narok county.

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“If you leave this money to me, I will be able to build all these road projects. If you take that money and built a small murram road, it will be washed away after one day when it rains,” said Ruto. 

Kisumu Governor Anyang’ Nyong’o accused President William Ruto’s government of undermining devolution by retaining road development and maintenance functions through Kenya Urban Roads Authority (KURA) and Kenya Rural Roads Authority (KERA).

He argued that the continued existence of the two agencies was unnecessary, because it is frustrating full implementation of the 2010 constitution and the spirit of devolution.

“The truth is that President Ruto’s regime has decided to go back to the pre-devolution times of the Nyayo era. The 2010 constitution is a hindrance to this government’s primitive accumulation schemes,” said Nyong’o.

Kisumu Senator Tom Ojenda argues that procedures of handling that money are outlined in articles 174 to 179 that set out the principles of devolution, where the Ward Fund is managed through the framework that creates KERA and KURA.

Senator Ojenda also thinks it was wrong for Prof Nyong’o to suggest that President Ruto was frustrating devolution and returning the country to the pre-2010 constitution days when the centre made all development decisions.

He argued that a lot has been achieved under the current dispensation as opposed to when the country was operating in a unitary system of government with the executive and parliament determining every process of governance.

“The statement by the governor is unfortunate to that extent but he is also right to the extent that we must protect devolution, because the Senate is there to oversight. The RMLF should, however, be appropriated through parliament to benefit of the people,” says Ojenda.

Leader of Majority in Parliament Kimani Ichung’wah is also spoiling for a fight. He has vowed to stop the money being disbursed for development of county roads unless the MPs are involved in the allocation of funds.

“We are not ready to allow governors control this money. It is not a small matter. It is a live wire and they will not touch that money,” said Ichung’wah this week in parliament.

Many governors argue that devolution is deliberately being killed and development in counties is quickly regressing because their functions are either being performed by the central government or members of the National Assembly.

The Chairman Council of Governors Ahmed Abdullahi, questions why county governments are getting only 10 per cent of annual national budget 15 years after they were established, when the constitution clearly says they should be allocated at least 15 per cent.

“The government has a Sh4 trillion budget every year, yet counties get only Sh400 billion to do all the 14 functions provided for them in the fourth schedule of the constitution. That includes early childhood education, health, agriculture, livestock development, rural roads and water among others,” says Adullahi. 

Murang’a Senator Joe Nyutu is also concerned that the national government is still keeping money for health programmes, roads, markets, aggregation centres and dams among other functions. MPs in the National Assembly also have the National Government -Constituency Development Fund (NG-CDF) kitty at their disposal.

Nyutu, for example fails to understand the logic of the central government giving Sh250 million and the county government of Murang’a a similar amount for an aggregation centre in Murang’a instead of passing the funds to the county to do the work.

He thinks the president and his government are keen on retaining KURA and KERA functions for political mileage and his re-election campaign instead of empowering county governments.

“It is all politics because president Ruto does not want to cede construction of tarmac roads to county governments so that he can launch and commission them. That is deliberate because he wants to take credit when county government are being denied functions,” says Nyutu.

Lawyer Jacob Mutula says the country needs to rethink whether it is doing the right thing by giving very little revenue to counties, yet they have so much responsibility.

He wants a fifty to fifty budgetary allocation shared by the two levels of government. That will enable devolved units to fully take charge of all their functions. The central government should only be allowed to take charge of foreign affairs, defence and higher education functions.

Mutula wants counties empowered to better manage early childhood education, because it is at that basic level of learning, where children require a proper foundation.

“As we devolve health, counties need to build capacity for service providers, infrastructure and equipment like MRI machines, which are very expensive,” says Mutula.

Political analyst and International Relations scholar Daniel Orogo, however, thinks the misinterpretations on the sharing of responsibilities is driven more by political interests than legal challenges.

Two weeks ago, ODM leader Raila Odinga, also reprimanded MPs for undermining devolution and asked them to stop frustrating county governments.

Last year, the High Court ruled that NG- CDF is unconstitutional because the money should be handled by county governments, yet the fund is still under the control of MPs in constituency offices.

“Governors are saying give us that NG-CDF money, because education is a devolved function where constituencies belong. We have had so many legal interpretations but nothing appears to be changing as the tussling between governors, the executive and the national assembly continues,” says Orogo.

County governments convene an annual devolution conference every year to take stock and look at the gains, challenges and opportunities facing them, except in 2020 because of the Covid-19 pandemic.

Their complaints over the reluctance by the executive arm of government to cede certain functions and lack of adequate funding only grows louder after every meeting.

Former Knut Secretary General Wilson Sossion, thinks the ongoing debate is healthy, but any serious conflicts should be resolved by The Intergovernmental Budget and Economic Committee (IBEC) that is chaired by the deputy president.

“IBEC should identify critical functions that must be funded. The constitution was drafted in such a manner that we cannot have adversarial challenges that remain unresolved without getting to a point of convergence,” says Sossion.

He thinks both levels of government still need each other in areas such as Agriculture, which although devolved, interventions like procurement of subsidized fertilizer for furthers is still done by the national government.

Mutula however, believes  there should be no confusion over devolution, when the constitution offers clear guidelines. The problem, he thinks, is because Kenya is still a de-jure unitary republic that is also operating as a federal system.