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Separation of powers in Kenya’s devolved administrative system: Opportunities and challenges Margaret Kobia and Obuya Bagaka Introduction The last general election of Kenya was held on 4 March 2013. The new government’s main agenda is to implement the Constitution of Kenya 2010, which introduced two levels of government – national and county. The constitution has brought in major administrative reforms in public service and governance. Managing human resource function during the times of transition to a devolved system of government adds both opportunities and challenges to service delivery. The underlying objective of this article is to shed some light on the progress made so far in the implementation of devolution, with specific focus on the executive organs of the three branches of the national government and the administration of the county governments in Kenya, together with the attendant challenges. Constitutional context In August 2010, Kenyans promulgated a new constitution which, among other things, devolved political, fiscal and administrative powers from the national government to 47 counties. Unlike other countries where the devolution process of the three powers has been sequentially attained1, in Kenya the experience has been a ‘big bang’ where the three types of decentralisation were achieved at once with the ratification of the constitution. While most literature on administrative devolution focuses on the transfer of power and resources vertically, from one level of government to another, this article focuses on the transfer of power horizontally within the three branches of government at the national level and the two branches of government at the county level. The Constitution of Kenya 2010 divides the territory of Kenya into two governments made up of 47 counties, commonly referred to as the national and county governments.2 In the spirit of the constitution, the two governments are perceived to be equal and no level of government has supervisory powers over another. In fact, the constitution stipulates that both levels of government are ‘distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation’. 3 Further, the constitution requires ‘each level of government to perform its functions and powers in a manner that respects the functional and institutional integrity of the government at the other level’.4 Kenya’s historical experiences informed the inclusion of these constitutional clauses specifically to protect counties from having their powers usurped by the national government, as previously happened under the old constitutional order. Other than the judicial arm of government, both the national and county governments exercise both executive and legislative powers. At the national level the legislature is bicameral, composed of an elected National Assembly and Senate. In contrast, an elected legislature at the county level is unicameral. Both legislatures perform three functions: legislation, oversight and representation. To promote the system of checks and balances in each arm of the government there exists an executive entity, which is in charge of welfare and human resource management functions. The legislature of the national and county governments has the Parliamentary Service Commission (PSC) and the County Assembly Service Board (CASB), respectively. The executive at the national level has the Public Service Commission of Kenya (PSC), whereas its counterpart at the county level is the County Public Service Board (CPSB). These bodies are charged with the function of creating and abolishing offices, and staffing and disciplinary control of the public service at each level of government. Under the old constitution, key staff of the local governments were also employees of the central government and often advanced its ideals as opposed to local welfare needs. The judiciary too has the Judicial Service Commission (JSC), which manages the welfare and human resource function of judicial staff. Under the old system, the executive enjoyed monopoly powers over the appointment and promotion of judges and senior staff of the judiciary, thus blurring the separation of powers boundary, whereas the chairperson and majority members of the CASB, PSC and JSC come from within the elected representatives and judicial officers, respectively. The chairperson and members of PSC-K5 are independently and competitively recruited, appointed by the President subject to approval by the National Assembly. In the PSC and CASB6 the speakers are the chairpersons7, while in the JSC the chief justice is the chairperson. This deliberate effort to have the speakers and Commonwealth Governance 14 Handbook 2013/14


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