Unprecedented Governance issues likely to undermine service delivery: Is there opportunity for the public to meaningfully engage?
CSOs and Public Accountability Forum
19th August 2020
We note with concern that we indeed are living in unprecedented times not only as a result of COVID-19 pandemic but in all manner of ways. Publications, information and activities in both print, mainstream and social media, parliament and now critical government institutions including Nairobi City County remain of concern to the general public. This brief highlights outstanding governance issues at both the county and national governments that have a bearing on county service delivery and by extension pose a threat to devolution if not urgently addressed.
Case in Points:
Transparency and accountability concerns in the management of COVID -19 Emergency response
On Sunday 16th August 2020, the nation was left in shock after learning of the magnitude of entrenched corruption and mismanagement of COVID -19 emergency response funds by well-connected top government officials operating through KEMSA and ministry of health. The documentary aired by NTV titled: #COVID19Millionaires: Corruption and Covid-19 moving at the same pace, brings to light a worrying trend among others the disregard for the rule of law, impunity of the highest order, state capture, limited and/or absence of transparency, accountability and public participation that if unchecked will likely undermine health service delivery in the country and by extension negatively affect efforts in the fight against the spread of COVID-19
Counties Division of Revenue impasse
Service delivery in Nairobi City County, just like in the other 46 counties is likely to come to a halt that is if the division of revenue amongst counties stalemate is not urgently resolved by the senate. We note with concern that the senate is yet to pass The County Allocation of Revenue Bill, 2020 in accordance to Article 218 of the Constitution with arguments surrounding the division of revenue concept in the senate, raising more questions than answers: (a) is the divergence instigated by Kenyan citizenry or political interests?; (b) do all the three proposed formulas conform to Article 203 of the Constitution on equitable sharing of resources?;(c) At what point do we draw the line between political and technical aspects in the Division of Revenue debate?; (d) Does the CRA recommendations mandate on revenue sharing add value to the process bearing in mind the commission’s principal obligation under Article 216 of the constitution is to make recommendations concerning the basis for equitable sharing of revenue raised by the national government? to mention but a few. As citizens of this country, we are compelled to ask as to whether the division of revenue stalemate politically instigated or in the interest of the citizens?
Nairobi City County
Transfer of County Function to National Government
Since February 2020, Nairobi City County has continued to witness tremendous changes ranging from the unprecedented transfer of critical county functions- County Health, Transport, Planning and Development, Public Works, Utilities and Ancillary Services to the National Government, disputes, debates and court cases touching on public finance management issues. Whereas the move by the county to transfer the aforementioned functions to the National government is acceptable within the law, what remains of concern are whether the due process was followed to the latter.
Long-standing County Assembly leadership wrangles
Just last week, speaker Beatrice Elachi resigned from the county assembly paving way for the election of the new speaker, Benson Mutura a move that is expected to break long-standing leadership wrangles within the assembly and between the executive which has contributed to the delay in passing of the 2020/21 budget to pave way for service delivery. It remains our hope that tensions within the county assembly and overall County governance will come to a stop with this new change in the county assembly’s top leadership.
Development of supplementary budget 2019/20
Section 135(1) of the Public Finance Management Act provides that a county government may spend money that has not been appropriated if the amount appropriated for any purpose under the county appropriation Act is insufficient or a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act. To factor in changes resulting from the transfer of specific sector to the national government and to ensure the smooth operation of the Nairobi Metropolitan Services (NMS), the county engaged in the development of a supplementary budget during the months of April to June 2020 that saw Kes. 2,250.0 million allocations to recurrent and Kes. 1,250.0 million to development expenditures to Nairobi Metropolitan Services. However, whereas the Public Finance Management Act does not expressly provide for public participation in the supplementary budget process, it does provide for the role of the County Budget and Economic Forum in the county budget process under section 137. It
is noteworthy, the County Budget and Economic Forum was not given the opportunity to make representations in the process fundamentally contravening the spirit and letter of the law.
Public engagement, Governance and COVID-19
Indisputably, public participation is core in county governance that is to say; planning, budgeting and policy development and hence must be accorded required attention. We note with concern that:
1. The concept of public participation has been negatively affected by COVID -19 pandemic. Abolition of public gatherings, county public participation forums inclusive is one of the stopgap measures by the government in the fight against the pandemic, meaning contribution from the larger public population on governance and county planning processes will largely remain is ineffective.
2. It still remains unclear the outcome of the public participation meetings held during the transfer of some county functions as we are yet to access the report thus raising concern on the extent to which the public forums were considered and/ or influenced the outcome of this important process.
Due to the foregoing reasons, the Nairobi public accountability forum and CSOs representatives call on the relevant institutions to urgently address outstanding governance issues at both the national government and Nairobi City County as follows
Nairobi City County
1. Review the existing laws on public participation with the aim of closing existing loopholes and/or ambiguities to avoid exploitation and deprivation of the public right to participation.
2. As expressly provided for under Section 28 and 29 of the Intergovernmental Relations Act, 2012, the criteria for the transfer or delegation of powers, functions, or competencies shall include the extent to which the transfer or delegation would allow for accountability and provide for a framework for public participation in the transfer or delegation of powers, functions or competencies by either level of government which shall be provided by regulation, We, therefore, recommend that the relevant authorities hasten, if not, the development of regulations to explicitly
provide for a framework for public participation on functions transferred to the national government under the management of the Nairobi Metropolitan Services.
3. The trend on consistent breach of a legal framework on public participation should instead be in reverse where the latter focuses on the transparent engagement of all relevant stakeholders including the public and all legal bodies including the County Budget and Economic Forum to provide for consultation on preparations of county plans, matters relating to budgeting, the economy and financial management at the county in conformity to Section 137 of the Public Finance Management, 2012.
4. Based on the complications in the laws regarding public participation specifically the process for development of supplementary budget(s), there is need to go for public interest litigation in a bid to combat the inconsistencies surrounding the process. This will allow for clarifying of the laws, the holding of public bodies accountable, interpretation of the legislation, provision through the law for a balance between the political, social and economic aspects in the development of budgets and last but not least an opportunity for the public to highlight and advocate for their right to participation.
5. Observe Article 35 through ensuring timely access to information, data, documents and other information relevant by citizens, providing prior notice of a minimum of seven (7) days between the announcement and the holding of a public forum, providing a meeting agenda for any public forum informing the expected inputs from members of the public;
6. Strictly implement Civic Education: (CGA Part X) requires the county government to develop an effective civic education framework/plan through which it shall empower and enlighten citizens to be able to effectively participate in county development planning processes
7. Because the pandemic is new, there is need for collaboration by all stakeholders both state and non- state, devising alternative effective measures towards facilitating meaningful public engagement during the COVID-19 pandemic and beyond
Parliament of Kenya
1. We call upon the parliament and other relevant authorities to thoroughly and expeditiously investigate allegations of corruption and gross misconduct by top government officials in the management and use of the COVID-19 Emergency Response Fund with the aim of recovering lost and/or unaccounted resources approximated at 45 billion, unmasking and bring to book those found culpable.
Article 1 of the constitution of Kenya, 2010 vests all sovereign power to the people of Kenya which shall be exercised either directly or indirectly through democratically elected representatives in state organs including parliament and legislative assemblies, the county governments, the national executive and executive structures in the county governments, the judiciary, and independent tribunals, thus it is our conviction that the responsible authorities at both national and county should execute their mandate on behalf of the citizen and represent the interest of the public at all times