Race against time as stand-off delays tax and cash laws for counties
It is a race against time, as the government moves to complete the Devolution Bills that will ensure counties are established in time for the 2012 General Election.
The Ministry of Justice on the one hand, the Constitution Implementation Oversight Committee (CIOC) on the other and the Commission for the Implementation of the Constitution (CIC) met on Monday and warned that unless the passage of the Bills was treated with urgency, counties which are a key structure in the next government may not be established on time.
On Wednesday, Justice minister Mutula Kilonzo, CIOC chairman Abdikadir Mohamed and CIC boss Charles Nyachae said they would ensure the Bills on Devolution are fast-tracked and passed by February.
“We agreed that the devolution Bills which fall under the Ministry of Local Government are fast-tracked and passed before the end of the year,” said Mr Kilonzo.
He said that if elections are to be held in December 2012 in line with the proposed Cabinet amendments to the Constitution, the government only has eight months remaining for the laws to be passed and counties set up.
“The time remaining is basically eight months because campaigns will take 60 days. During the campaign period, you cannot be setting up county governments,” he said.
The Constitution establishes 47 counties which are based on the number of districts as they were by 1992.
The setting up of counties was in the spirit of decentralising power from the centre to the grassroots to bring to an end concentration of authority in the Central government and allow local participation in decision making.
The adoption of county governments also created new positions of Senators, Governors and institutions such as County Assemblies which will be filled during the next elections.
This has called for the passage of laws to pave way for the establishment of the counties and put in place the required infrastructure such as county assemblies and offices for the new officers that come with devolved system of government.
To effect the spirit, Local Government minister Musalia Mudavadi constituted a task force to prepare draft Bills and provide guideline on how the counties will be established, including sharing of resources.
The task force, chaired by Moi University law lecturer Mutakha Kangu came up with six Bills to bring into force the county governments.
They were the draft Devolved Government Bill which stated the powers, functions and responsibilities of counties.
It also sets out functions and qualifications for County Assembly Speaker, Deputy Speaker, County Cabinet and Governor.
The second, the Urban Centres and Cities Bill, sets the criteria to classify and manage urban areas and cities within a county.
The third, the draft Inter-Governmental Relations Bill proposed a framework for co-operation and consultations between National and County governments and among County governments themselves.
Other proposed laws were the Intergovernmental Fiscal Relations Bill, County Government Financial Management Bill, and Transition to Devolved Government Bills
However, the Bills touching in financial management and taxation triggered a row between the Ministry of Local Government and the Treasury with the latter arguing that it holds the preserve to draft laws on money.
Treasury version
Treasury wanted its version of the Public Financial Management Bill to be tabled in Parliament, but the taskforce insisted its version of the Bill and two others — the County Governments Financial Management Bill and the Intergovernmental Fiscal Relations Bill — should be published and enacted.
At the centre of the stand-off was the question of whether national and county governments should have two sets of laws on financial management, and the amount of revenue to be shared between the two levels of government.
Treasury opposed the proposal by the Mutakha Kangu team that 15 per cent of revenue raised nationally should be disbursed to counties as provided for in the Constitution.
Instead, Treasury argued that the national and county governments should only share money collected from taxation.
The Local Government ministry advanced that Treasury was insisting on its version of the Bill due to a deal it struck with the International Monetary Fund for financing.
The memorandum of understanding (MoU) signed on January 17 between the Treasury and IMF, restricted sharing of funds with county governments and placed the control of all fiscal policies under the Ministry of Finance.
Kenya owes the IMF Sh1.4 trillion.
Mr Mudavadi alleged the Treasury was seeking to reintroduce central government control of the upcoming county governments through the use of provincial administration.
The row attracted the intervention of President Kibaki and Prime Minister Kibaki who also failed to sort out the difference between the two ministries.
The Bills are yet to be debated and passed, except the Urban Areas and Cities Bill.
This stalemate has to be solved by the government to pave way for the passage of Bills in time to establish counties.
On Wednesday, Mr Kangu said they called for urgency in setting up of counties.
“We made it very clear that setting up counties was very urgent. If they don’t, it is their problem,” he said on phone.
Mr Mutula said the Bills must be passed to ensure that costs of setting up the counties are factored in next year’s budget.
“We have to factor in the next budget the funds that will finance setting up of counties. This is why I am urging MPs to pass the Bills before we break for December festivities,” he said.
Mr Abdikadir warned that if counties are set up in a hurry, the country is likely to face problems after the next elections. He said the legal and infrastructure needs for counties must be properly put in place.
“Unless we establish the county government and do it well, we will have problems after the next elections. They should not fail,” he said.
The Mandera Central MP said the CIOC will soon convene a meeting with all line ministries to ensure necessary laws are passed.
“We have to enact the laws and prepare the infrastructure for the county governments,” he said. The ministry of Public Works, which had advertised tenders for constitution of county assemblies and houses for officials, has suspended it.
Said a ministry official: “They were suspended until county governments are established.”
Mr Nyachae said the CIC was reviewing two devolution Bills which should be enacted by February.
He assured Kenyans that the laws will be passed in time to set up the county governments.
“We are busy working on legislation to establish county governments. It forms the second phase and will be ready by February. In terms of the law, they should be in place by February in readiness for the elections,” he said.
