County governments in Kenya are one of the two arms of government. The other arm is the National Government. Article 1(4) of the Constitution says that people exercise their sovereign power at the national and the county level.
Article 6(1) divides the territory of Kenya into the counties specified in the First Schedule. The governments at the national and county levels are distinct and inter-dependent. Yet, they conduct their mutual relations based on consultation and cooperation (Article 6:2).
Devolution of power is also one of the national values and principles of governance under Article 10.
The Constitution assigns functions to the county governments in Kenya to perform. Counties may perform other functions assigned through an Act of Parliament. The County Governments Act expounds on the functions that county governments in Kenya should perform.
Section 5 of the County Governments Act tries to expound on Article 1(4) of the Constitution.
Functions of the county governments in Kenya
Section 5 of the County Governments Act (2012) classifies the functions of the County Governments in Kenya as follows.
County legislation in accordance with Article 185 of the Constitution
The Constitution confers the county’s legislative authority to the County Assembly. The Assembly also exercises this authority. County Assemblies make laws that are necessary to ensure county governments perform their functions under the Fourth Schedule. A County Assembly exercises oversight on the county executive committee or other county executive organs.
The Constitution also confers powers on the County Assemblies to receive and approve plans and policies. These plans and policies affect the management and exploitation of the county’s resources. They also affect the development and management of county infrastructure and institutions.
Exercising executive functions in accordance with Article 183 of the Constitution
Article 183 provides for the functions of the county executive committee. These functions are–
- implementation of county legislation;
- implementation of national legislation within the county if the legislation so requires;
- management and coordination of the functions of the county administration and its departments; and
- performance of any other functions conferred on it by the Constitution or national legislation.
A county executive committee can also prepare proposed legislation for consideration by the county assembly. It should provide the Assembly with full and regular reports on matters relating to the county.
Functions provided for in Article 186 and assigned in the Fourth Schedule of the Constitution
Article 186 makes clarifications on functions and powers of county governments. It shows where county functions are situated (Fourth Schedule) and explains about concurrent functions. It also designates any other function not assigned to the counties by the Constitution, or any other written law, as a national government function.
A concurrent function here means a function or power that the Constitution, or any other national legislation, confers on more than one level of government. It becomes a function or power within the concurrent jurisdiction of each of those levels of government. However, such functions are not properly defined, e.g. housing, planning, transport and disaster management.
The Fourth Schedule of the Constitution contains the division of functions between the national and the county governments in Kenya. These functions are as follows.
- Agriculture, including crop and animal husbandry, livestock sale yards, county abattoirs (slaughterhouses), plant and animal disease control, and fisheries.
- County health services, including, in particular – county health facilities and pharmacies, ambulance services, promotion of primary health care, licensing and control of undertakings that sell food to the public, veterinary services (excluding regulation of the profession which is a national government function), cemeteries, funeral parlours and crematoria, and refuse removal, refuse dumps and solid waste disposal.
- Control of air pollution, noise pollution, other public nuisances, and outdoor advertising.
- Cultural activities, public entertainment and public amenities, including – betting, casinos and other forms of gambling, racing, liquor licensing, cinemas, video shows and hiring, libraries, museums, sports and cultural activities and facilities, and county parks, beaches and recreation facilities.
- County transport, including – County roads (Class D, E and Unclassified Roads), street lighting, traffic and parking, public road transport, and ferries and harbours (excluding the regulation of international and national shipping and matters related thereto).
- Animal control and welfare, including – licensing of dogs, and facilities for the accommodation, care, and burial of animals.
- Trade development and regulation, including – markets, trade licences (excluding regulation of professions), fair trading practices, local tourism, and cooperative societies.
- County planning and development, including – statistics, land survey and mapping, boundaries and fencing, housing, and electricity and gas reticulation and energy regulation.
- Education – only pre-primary education (ECD), village polytechnics, home craft centres and childcare facilities.
- Implementation of specific national government policies on natural resources and environmental conservation, including soil and water conservation, and forestry.
- County public works and services, including – storm water management systems in built-up areas, and water and sanitation services.
- Firefighting services and disaster management.
- Control of drugs and pornography.
- Ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.
Thus, the Fourth Schedule assigns fourteen functions to the county governments in Kenya to perform.
Any other function that may be transferred to county governments from the national government under Article 187 of the Constitution
Article 187 of the Constitution provides for the transfer of a function or power between both levels of government by agreement. However, this happens under two conditions-
- if the receiving government would effectively perform or exercise the function or power; and
- if the legislation, under which it will perform or exercise, does not prohibit the transfer of the function or power.
If one level of government transfers a function or power to a government at the other level, that level shall arrange to ensure the transfer of the resources necessary for the performance of the function or exercise of the power. However, the constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which the Fourth Schedule assigns it.
Some of the functions that county officials want transferred to the counties in accordance with this law include security and education.
Any functions agreed upon with other county governments under Article 189(2) of the Constitution
Government at each level, and different governments at the county level, should co-operate in the performance of functions and exercise of powers. For that purpose, may set up joint committees and joint authorities. (Article 189:2).
Instances where counties may cooperate in the performance of functions and exercise of powers include the management and funding of joint or regional resources, such as Level 5 hospitals and game reserves.
Establishment and staffing of its public service as contemplated under Article 235 of the Constitution
A county government is responsible, within a framework of uniform norms and standards prescribed by the County Governments Act, for –
- establishing and abolishing offices in its public service;
- appointing persons to hold or act in those offices;
- confirming appointments; and
- exercising disciplinary control over and removing persons holding or acting in those offices.
However, the above functions do not apply to any office or position subject to the Teachers Service Commission (TSC). This excludes the hiring and firing of teachers concerned with Early Childhood Development (ECD). TSC had challenged the matter in court but it lost. It sought to stop county governments from hiring ECD teachers. TSC claimed that the county governments were overstepping its mandate.
Powers of the County Governments in Kenya (Section 6 of County Governments Act)
As an entity exercising constitutional authority, a county government is a body corporate with perpetual succession. It should have all the powers necessary for the discharge of its functions.
A county government may-
- enter into a contract;
- acquire, purchase or lease any land;
- delegate any of its functions to its officers, decentralized units or other entities within the county; and
- enter into partnerships with any public or private organization in accordance with the Public Private Partnerships Act (2005). These partnerships apply for any work, service, or function for which the county government is responsible within its area of jurisdiction.
All contracts lawfully entered into by county governments in Kenya are valid and binding on the county government, its successors, and delegates.
To ensure efficiency in the delivery of service or carrying out of a function for which the county government is responsible, the county government may-
- establish a company, firm or other body for the delivery of particular service or carrying on of a particular function;
- contract any person, company, firm, or other body for the delivery of a particular service or carrying on a particular function.
Lastl, in exercising its powers or performing any of its functions, a county government shall ensure efficiency, effectiveness, inclusivity, and participation of the people.