Transition to Devolved Government in Kenya
Authors J Mutakha Kangu
Affiliations: Senior Lecturer in Law, Moi University; Advocate of the High Court of Kenya; Former Chairman of the Task Force on Devolved Government; Former Commissioner of the Constitution of Kenya Review Commission; and currently a Doctoral Researcher at the Community Law Centre of the University of the Western Cape, South Africa
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 32 – 70
This article examines the constitutional provisions relating to the complex process of Kenya’s transition to devolved Government. Interpreted in a purposive manner, these constitutional provisions envisage and disclose the following key issues and areas pertinent to transition to devolved Government, which the article discusses. First is the gradual transition to devolved Government. This section addresses the nature of transitional provisions; the suspension and extension of some of the provisions of the new and former Constitutions, respectively; and the timing, period and phases of transition to devolved Government. Second is transition in the legislative area, which involves the deconstruction of the old legal order through the enactment of enabling new order legislation, and the interpretation of the surviving old order laws in a manner that makes them consistent with the new Constitution and facilitates transition to devolved Government. Third is the establishment of county structures and institutions, including the public service and restructuring of provincial administration. Fourth is transition in the functional area, involving the transfer of functions to the County Governments. Fifth is transition in the resources area, involving financial resources, human resources and capacity building, assets and liabilities, and transfer of Government records. In the course of the examination of these key transition issues and areas, the article also examines the numerous key institutions which the Constitution establishes or envisages as being responsible for managing the transition process and assesses their performance so far.