Parliament and AG frustrating devolution of road construction

Attorney-General Githu Muigai addresses partakers during the Communications Authority (CA) of Kenya convention on online child protection at Safari park Hotel in Nairobi on December 15, 2015. In January, he was directed to gazette the transfer of county roads as advised by Senate within 90 days. PHOTO | JAMES EKWAM | NATION MEDIA GROUP

What you need to know:

  • The national government is responsible for the construction and maintenance of national trunk roads, while county governments take care of county roads.
  • Those roads that were classified as A, B and C were considered national roads and would remain with the national government. Class D and E were considered county roads.
  • For the record, the High Court ruled that Parliament has no statutory or constitutional role in the matter of transfer of roads to the counties. This is the sole mandate of the Senate and TA.

There is a deliberate scheme hatched by the national government, midwifed by the Attorney-General and nursed by the National Assembly, to frustrate the transfer of the roads function to county governments as per the fourth schedule of the Constitution.

The Transition Authority (TA) is a silent participant in this scheme.

According to the Constitution, the roads function is a shared responsibility between the two levels of government.

The national government is responsible for the construction and maintenance of national trunk roads, while county governments take care of county roads.

While this sounds very straightforward, the Constitution does not explicitly define what a national trunk road is as opposed to a county road.

It is this lacuna that has been exploited by the opponents of devolution.

It is very unfortunate that those who are part of this conspiracy are the same forces that are expected to defend and protect the Constitution and the rights of all Kenyans.

A brief background could help to reinforce my point.

In 2014, county governments petitioned the Senate to intervene and compel the TA to transfer county roads to the devolved governments. Thirty nine counties signed this petition.

The Senate reviewed the petition and advised on a distinction between national and county roads.

Those roads that were classified as A, B and C were considered national roads and would remain with the national government. Class D and E were considered county roads.

The decision by the Senate was a transitional period measure to ensure that counties took control of their constitutional responsibilities.

ASTUTE MOVE
At the same time, it was recommended that a new Roads Bill would be enacted to respond to the devolved governance structure and provide greater clarity on classification of roads.

The TA was directed to liaise with the Attorney-General (AG) to gazette this decision.

This balanced and pragmatic decision would later be contested by the AG and the Transport and Infrastructure Committee of the National Assembly.

In an open show of malice and defiance, the AG declined to gazette the Senate decision. The AG’s action prompted the Council of Governors (COG) to take the matter to court.

In January, the High Court ruled that the AG had acted beyond his powers and violated the principles and objectives of devolution provided under Articles 174 and 175 of the Constitution.

The AG was directed to gazette the transfer of county roads as advised by Senate within 90 days.

Instead of gazetting the transfer, as directed by the High Court, the AG went out of his way to encourage the Ministry of Transport and Infrastructure to hurriedly release a new roads classification scheme.

This changed the status of most roads across the country and shifted power to the national government.

This reclassification was done and gazetted without the satisfactory participation of county governments, despite roads being a shared function.

PUBLIC BENEFIT
The involvement of the National Assembly in this matter is also suspect.

For the record, the High Court ruled that Parliament has no statutory or constitutional role in the matter of transfer of roads to the counties. This is the sole mandate of the Senate and TA.

It is, therefore, ridiculous when the Transport Committee raises objections on this matter, and these objections are given a hearing by the AG.

At the end of the day, Wanjiku needs services and would best be served at the lowest level of government possible.

This is why Wanjiku overwhelmingly supports devolution. This is why county roads must be handed over to county governments in an undiluted form.

Mr Kajwang’ is Homa Bay County senator and member of Senate Committee on Roads; [email protected]