Paul Muite - PCs', DCs' Role is in new Constitution - The Star

In the several decades journey for the New Constitution, intense debate on what to do with the Provincial Administration has always taken centre stage.

Amongst the reasons for that debate is the draconian use to which the Imperial Presidency under the old constitution put the Provincial Administration from the assistant chief to the chief, the DO, DC, PC, to the OP and the Presidency. The oppression of the people, denial of basic freedoms in the Bill of Rights, including social gatherings, was only possible through the Provincial Administration.

Memories are still fresh when even a visit by in-laws or the slaughter of a goat needed a permit from the chief, who was also required to ensure no criticism of the government or the president took place at any such gatherings. The Provincial Administration was relied upon by the imperial Presidency to rig elections so as to weed out government critics.

The 1988 mlolongo elections where in many cases the shorter queues won is a memorable reminder. The history and role of the Provincial Administration is thus far from positive. The root cause however was the imperial Presidency not the Provincial Administration per se.

It is ironical that this all powerful institution of the Provincial Administration was never anchored in the old constitution. The new constitution for better or for worse anchors the Provincial Administration in the constitution for the first time in the constitutional history of Kenya.

Section 17 of the Sixth Schedule (all the schedules are part and parcel of the constitution) provides: " 17. Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution."

The Sixth Schedule is in turn based on Article 262 of the constitution, which provides:
"The transitional and consequential provisions set out in the Sixth Schedule shall take effect on the effective date."

On a correct interpretation of Article 262 and Section 17 of the Sixth Schedule, abolition of the Provincial Administration now would require an amendment to the constitution. The institution of the Provincial Administration is firmly anchored in the constitution of the Republic of Kenya.

What Section 17 of the Sixth Schedule requires is the restructuring of the Provincial Administration to accord with and respect the system of Devolved Government established under the new constitution. "Accord with and respect", is a powerful caveat.

Amongst the objects of devolution set out in Article 174 are:

(1) to give powers of self-governance to the people and enhance participation of the people in the exercise of the powers of the State and in making decisions affecting them;

(2) to recognise the right of communities to manage their own affairs and to further their development; and

(3) to facilitate the decentralisation of State Organs, their functions and services, from the Capital of Kenya.

Accordingly, any restructuring the effect of which is to dilute n any way these objects of devolution in letter or spirit will be unconstitutional.

Further, Section 5 of the Sixth Schedule needs to be taken into account. The Commission for the Implementation of the Constitution is the one mandated in sub-section 6(a) to monitor, facilitate and oversee the development of Legislation and Administrative Procedures required to implement the constitution and (b) co-ordinate with the Attorney General and the Kenya Law Reform Commission in preparing for tabling in Parliament the Legislation required to implement the constitution.

Since the new constitution does away with Provinces and makes the 47 Counties sacrosanct, creating a "cluster" of counties may very well run counter to the objects of devolution. The restructuring will however need to accommodate the presence of the National Government at the County Levels and below.

The counties themselves are required in Article 176(2) to decentralize their functions and provision of services to the extent that it is efficient and practicable to do so.

It is in the interests of the counties and the National Government to keep track of events so that the National Government is aware of the goings-on at the County Level and vice versa.

The Challenge is to get the balance right between the two systems of government, National and County which must co-exist for the benefit of all the people of Kenya, social and economic.

The writer is a senior counsel.

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