Out-of-date laws, delayed funds and why all is not well with devolution

All is not well with devolution. First, we expect major contention and delays in the division of revenue. Second, an internal review found more than 80 laws that seek to claw back devolution. I examine each in turn.

The Senate has proposed that 35 per cent of national revenue be shared with counties. This proposal is not new, having been the position of the Council of Governors (CoG) going into the negotiations at the Inter-governmental Budget and Economic Council (IBEC).

The Commission on Revenue Authority and the National Treasury, citing a sluggish economy, argued for no increase from the current position, prompting the CoG to accuse them of proposing growth by standing still. This because without increased funding to counties, it is not clear where economic recovery will come from.

The 35 per cent share was also one of the key planks of the now contested Building Bridges Initiative, which is, of course, before the Supreme Court. The Senate’s position will lead to mediation between the two Houses of Parliament. It seems inevitable then that the Division of Revenue Act for the next financial year will be delayed.

We’d do well to remember that these counties are in Kenya. Further, we should reflect on subsidiarity; the idea that decisions should be made as close to where they are needed as possible.

Marginalisation 

Subsidiarity promotes multiple centres of growth. In our case, 47 counties. Data from the Kenya National Bureau of Statistics disaggregating the gross domestic product by county shows, for instance, that three counties – Elgeyo Marakwet, Nyandarua and Laikipia – grew at rates above 8 per cent in the last five years. This dispersed growth helps reduce feelings of marginalisation.

A recent internal review by the CoG found 80 laws that seek to claw back devolution. The Agriculture sector has 20 Acts that are anti-devolution, Water (two) , Urban Development and Infrastructure (seven), Mining (two), forestry (one), environment (one), health (14) and tourism (three). Trade, manufacturing, investments and cooperatives had 30 anti-devolution Acts.

This includes laws that existed before the 2010 Constitution. Most worrying, though, are laws that have been enacted since 2010. For example, the Pyrethrum Act of 2013 excludes counties from the management of this key crop. The same is repeated in the Tea Act of 2020.

The Irrigation Act 2019 fails to recognise the role of counties while the Tourism Act of 2011 hijacks a county tax. The Public Health Act is a 1920s relic that does not conform to the 2010 Constitution.

The Investment Promotion Act of 2004, the Foreign Investments Protection Act, and the Investment Disputes Convention Act all pre-date the Constitution. The Special Economic Zones Act of 2015 gives the minister power to declare a special economic zone but does not recognise the role of counties.

The Valuation Act and Rating for Valuation Act both pre-date the constitution. This has provided the Treasury with the perfect excuse not to pay contribution in lieu of rates, which is the equivalent of property tax that national government ought to pay to counties!

@NdirituMuriithi is the Governor of Laikipia County