REPUBLIC OF KENYA

PUBLIC SERVICE COMMISSION

Framework

for Strengthening the Delivery of National Government Functions at the County

Level

May, 2014

Framework for

Strengthening the Delivery of National Government Functions at the County

Level

iii

Table of Contents 1.0 Preamble ....................................................................................................... 1

2.0 Why Strengthen the Co-ordination of the National Government

Functions at the County Level ................................................................... 2

3.0 Situation Analysis of the Co-ordination of the National Government

Functions at the County Level ................................................................... 3

6.0 Relationship between Office of the Deputy President and County

Commissioners ............................................................................................ 7

7.0 Relationship between the County Commissioner and Cabinet

Secretaries and Principal Secretaries ........................................................ 7

8.0 Relationship between the Governor and County Commissioner .......... 8

9.0 Grading Scale for the County Commissioners ........................................ 9

10.0 Monitoring and Evaluation Framework for the Performance of

County Commissioners ............................................................................10

11.0 Proposed Road Map ..................................................................................10

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FRAMEWORK FOR STRENGTHENING THE DELIVERY OF NATIONAL GOVERNMENT FUNCTIONS AT THE COUNTY LEVEL 1.0 Preamble On 27th August 2010, Kenyans endorsed a new system of Government following the promulgation of a new Constitution after an overwhelming endorsement by Kenyans in the referendum held in April 4th, 2010. The structure of governance that Kenyans endorsed through the new Constitution provides for a Government envisaged in article 131(a) which is headed by the President who is also Head of State. The Constitution further vests on the President, the power to co-ordinate and direct Government ministries and departments as stipulated by 132 (3)(b). Article 6(2) of the Constitution introduces the concept of two levels of government and provides that the governments at the National and County level are distinct and interdependent.

Based on this structure of Government and in order to effectively exercise His powers and authority as Head of State and Government, there is need for a framework and a bureaucracy of officers answerable to him and to whom he can delegate his powers to coordinate and direct national government business in the field.

The exercise of delegated authority cannot be effective unless there is clear pronouncement or written communication of this delegation and a clear institutional mechanism through which the authority can be exercised. Where authority is diffused, lines of authority are confused and responsibility and accountability are likely to be impaired.

A critical state of running the affairs of government requires the executive to speak and act with unit of purpose, firmness and restraint in dealing with other branches and units of government. For this to happen, the Chief Executive both at the National and County must not be handicapped in providing firm directions to the departments and agencies at the National and the County. This therefore calls for an energetic and unified executive at both levels of government in the execution of national responsibilities as clearly outlined in the Fourth Schedule of the Constitution.

A strong and united national executive at both the national and county level is for the purposes of improved service delivery and to facilitate delivery of the pledges made to Kenyans by the Jubilee Government.

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2.0 Why Strengthen the Co-ordination of the National Government Functions at the County Level The Constitution of Kenya, 2010 provides for a system of Government that operates at the National and County level. Article 6(2) as read with Article 189 of the Constitution provides for the distinctiveness of the two levels of Government, and mechanism through which they should conduct their mutual relations on the basis of consultation and co-operation. The distinctiveness of the two levels of government is manifested through their bureaucracies, institutions, co-ordinating frameworks and functions as provided for in the Fourth Schedule to the Constitution.

In an effort to ensure reasonable access of the services of the National Government in all parts of the of the Republic and to facilitate the exercise of the powers vested on the President under Article 132(2)(b) of the Constitution i.e. to direct and co-ordinate the functions of ministries and other government departments, the Government has put in place a co-ordinating framework to enhance co-ordination of its functions by enacting the National Government Co-ordination Act, 2013. The Act provides a mechanism to hold together the national executive at the national and the county so as to enhance synergy and coherence of the National Government in the performance of its functions.

This framework needs to be operationalized and strengthened through an executive order or pronouncement so as to provide direction on how Government should operate and give legitimacy to the co-ordinating role of the national government administrative officers. The unity of purpose of the national government must flow from the Cabinet to the committee of Principal Secretaries, co-ordinated by the Head of Public Service, and be mirrored at the County level through the County Service Delivery Co-ordination Committee, chaired by the County Commissioner. These service co-ordinating committees should provide a mechanism for holding the National Government accountable for the performance of its functions in line with Article 187; 2 (b), which assigns the constitutional responsibility for the performance of a function to the level of government assigned that function.

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2.0 Situation Analysis of the Co-ordination of the National Government Functions at the County Level The Presidency under the current constitutional dispensation has been a subject of perceptions that portray it as an institution restricted to State House or at most Nairobi with little or no mandate and representation at the County level. This perception is driven by misconceptions and propaganda around the relationship between the National and County Governments and the fight for space between the two levels of government at the county.

Although the Constitution is clear that the President is Head of State and Government and by extension the Chief Executive of the Republic of Kenya, and provided for two levels of government with clear assignment of functions and provisions to devolve their services to the grassroots, some people have distorted the definition of devolution to mean transfer of all the functions of the National Government to the County Government and effectively replacing the national government at the County. This has created confusion in the minds of citizens which require urgent and well structured and co-ordinated civic education to correct.

Although County Commissioners are ideally the President’s representatives at the County level, seldom are they perceived as such by other departments or officials and the leadership of the county governments. In fact, just like other heads of departments of Government ministries based at the County level, County Commissioners (CC) are perceived as heads of the department of the Ministry of Interior and Co-ordination of National Government. This perception has greatly whittled the hitherto powers of the National Government administrative officers and undermined their legitimacy as agents of the the Presidency responsible for effective co-ordination of the National Government business in their areas of responsibility. Under this modus operandi, the unified execution of the National Government functions is hampered and rendered ineffective at the County level.

Several reasons explain this state of affairs;

First, the County Commissioner and indeed other administrative officers, as co-ordinators of National Government functions, have for a long time exercised their supervisory authority over heads of departments (HODs) within their area of responsibility through the Presidential Circular No. 1 of 1965 which designated administrative officers as agents of the President and assigned them the responsibility of CEOs in their areas of jurisdiction. Under this arrangement, the administrative officers had legitimacy to

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coordinate government business in their areas. Over time, the authority of the administrative officers in co-ordination of Government business has been eroded due to various reform initiative whose effect has progressively removed the administrator from the centre in terms of co-ordinating Government business. Examples to demonstrate this fact include the reforms in the Public Financial Management which took away the responsibility of the District Commissioner to control operations of the district treasuries and the IPPG process which repealed some provisions of the Chiefs Act thereby eroding the powers of chiefs and administrative officers in the performance of their functions. The campaign for the new Constitution and the agitation to scrap Provincial Administration also impacted negatively on the co-ordinating powers of the administrative officers. Currently, HODs prefer to report to their respective seniors within their ministries and are not obligated to report to the County Commissioner or other administrative officers in the lower administrative units.

Second, with the coming of county governments, the previously useful planning framework through the District Development Committees (DDCs) have become almost irrelevant although the National Government still has more functional responsibilities. This forum served as a forum for exerting executive control.

Third, there is a lack of a central authority with express powers from the Presidency to effectively co-ordinate and unify the executive function on a regular basis. The executive at the County level is shared out into a number of agencies and departments which divide responsibility.

Fourth, Currently, there is no clarity on the framework and institutional support for implementation of sectoral or interdepartmental programs and functions. It is difficult to manage a complex establishment without central authority that has the mandate to mobilize resources from other sectors or departments for a common objective. This is the critical role the office of the CC is expected to play at the County level. County Commissioners and other National Government agencies must keep the President informed on the implementation of departmental programs and any challenges facing their implantation and assist in defining specific programs based on the county-context approach and help him supervise the execution of those programs.

Fifth, as currently perceived, CC’s and other administrative officers responsible for lower level administrative units are departmental heads of the Ministry of Interior and do not necessarily speak and represent the President at the County level. The Presidency must make clear

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pronouncement or communicate and make it clear to all departmental heads that County Commissioners speak and represent the President in directing and co-ordinating National Government functions in their areas of jurisdiction.

Sixth, budgeting process is currently done independently at ministerial level. At the County level, heads of departments identify their priorities and spending plans and forward the same to the parent Ministry for compilation and onward forwarding to the Treasury. Whereas, previously DDC served as an avenue for identifying local level spending needs. In the context of devolution, the National Executive is losing ground in identifying local spending priorities in a more co-ordinated manner under the guidance of a central authority.

Lastly, although there exists critical legal frameworks such as the National Security Council Act, 2012; and the National Government Co-ordinating Act, 2013, operationalization of the same has not been fully implemented as the enabling regulations are yet to be finalized.

4.0 Proposals to Reorganize and Strengthen the Co-ordination of the National Government Functions at the County Level

1. In order to give effect to the powers vested on the President to direct and co-ordinate ministries and departments and in an effort to streamline and strengthen co-ordination of the functions of the National Government at the County, it is imperative that the holder of this authority assigns or delegates it to his agents to be responsible for the exercise of this power in the County. The proper execution of the authority of the President cannot be effectively co-ordinated from Nairobi. Although the legal framework is in place under the National Government Co-ordination Act, an Executive order and a public pronouncement will provide policy direction and legitimize the delegation or assignment of this authority. In this connection therefore, it is strongly recommended that this authority be delegated to the County Commissioners and the Deputy County Commissioners and the exercise of this authority be supervised through the Cabinet Secretary responsible for Interior and Co-ordination of the National Government functions with the support of the Regional Co-ordinators. The Executive Order should make it clear that CCs are CEOs in their respective counties and have final say in the execution of the National Government functions at the County level.

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2. As actors exercising delegated powers from the Presidency, CCs and other National Government administrative officers must have powers to supervise all heads of departments and national heads of Government agencies based in their areas of jurisdiction. This would include appraising HODs and putting in place a mechanism for monitoring, evaluating and reporting on the performance contracts of each department and Government agency within their area of responsibility.

3. On budgeting, it is proposed that county based spending needs to

be aligned with ministerial needs in line with the current Government’s spending priorities. To do this effectively, the office of the CC must be made a central office in the budget preparation.

4. With respect to development projects, the office of the CC must be

made the overall contact point on supervision and reporting on progress. The CC should put in place a framework for monitoring, evaluating and reporting on implementation of National Government projects and programmes and utilization of the resources of the National Government. The respective line ministry HOD responsible for a specific development project shall be required to give an update on progress to the office of the CC through this framework. This framework should be cascaded to the other administrative units.

5. Reporting lines of the National Government must be clear right

from the sub-location to the Presidency. On a regular basis, the CC must update the Presidency on any matter of interest in his/her county through the Cabinet Secretary for Interior and Co-ordination of National Government. Each HOD of the National Government deployed to the county must on a regular basis update the office of the CC on the progress and activities of their respective departments.

6. On critical matters of conflict, overlap and interest between the

National and County governments, the office of the CC must be the natural contact outside the confines of the Intergovernmental relations institutional mechanisms.

5.0 Role of National Government Regional Co-ordinators Regional Co-ordinators were appointed under the ongoing restructuring of Provincial Administration to assist the Principal Secretary to manage a

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cluster of counties and to address the challenge of the span of control arising from co-ordination of the 47 counties. Under the current dispensation of a devolved system, the role of RCs need to be clarified and the location of their offices determined. The National Government need to consider two options; The first option is to create a regional level administrative structure to be co-ordinated by RCs and determine the functions to be devolved to the regions. The second option is to re-deploy them to the headquarters in Nairobi to serve as Regional desk officers responsible for a cluster of counties. RCs should deal with inter-county security and conflict issues and provide a monitoring and evaluation framework for the performance of counties. The position of RCs is critical in providing a mechanism for managing the challenge of span of control and facilitating communication between the office of the Principal Secretary and the County Commissioners

6.0 Relationship between Office of the Deputy President and County Commissioners In accordance with Article 147 of the Constitution, the Deputy President (DP) is the principal assistant of the President. He deputizes the President and performs any other functions the President may assign him/her. Operationally and going by practice, the DP chairs Cabinet sub-committees and other sub-committees of Government ministries and departments. Decisions of such sub-committees may need to be executed at the county level under the overall supervision of the CC.

The Constitution of Kenya, 2010 provides for the Presidency which is supported by the Deputy President who is not assigned any ministerial responsibility as has been the case in the previous dispensation. The co-ordination framework put in place should take cognizance of this institution of the Presidency and create a reporting mechanism that provides for linkages to the President and his Deputy. The President and the Deputy must operate as an entity and communicate as such through the office of the CC to all Government departments and agencies at the county. The CC must equally see the Presidency as a unified institution led by the President and the Deputy President.

7.0 Relationship between the County Commissioner and Cabinet Secretaries and Principal Secretaries The Government development programs and projects are better realized when delivered through a sector-wide approach. No Ministry on its own can independently achieve its mandate without the contribution of other sectors. Developing a Government-wide approach in the implementation

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of Government programmes is critical in achieving the development agenda of the National Government.

If it is accepted that the CC would be the overall head of the National Government operations at the County level, then all heads of Ministries must collectively embrace and endorse the responsibility of Office of the CC as the supervisor of all HODs from all Government ministries and agencies based at the County level. This will require ministries to delegate some of the supervisory role of their HODs or directors based at the County level to the office of the CC.

The CC on their part, must be individuals who have a wide understanding of the development agenda and priorities of each National Government ministry at the county. Where a ministry requires a sector-wide approach to achieve its objective or is implementing a national programme which requires support from other departments, the CC’s office at the county must have the power to mobilize resources from other departments and National Government agencies to support the specific Ministry. Alternatively all resources of the National Government should be pooled and be placed under the control of the CC and a mechanism for utilization which allows access by departments based on their work plans be developed and implemented.

In terms of reporting and accountability, the CC must be only answerable to the Presidency through the CS responsible for co-ordination of National Government. Respective Directors or HODs of each ministry based at the county should be held responsible for the delivery of specific outputs as specified in their performance contracts. While CSs and PSs of other ministries and departments can directly call the CC and request or give instructions on particular issues, the overall accountability of the CC must be through the Office of the President. Consequently, the formal channel of communication by all CSs and PSs on matters of co-ordination of National Government functions should be channeled through the CS and PS, Interior and Co-ordination of National Government. The CC should be the liaison officer on matters of intergovernmental relations between the National and County government and should use the framework provided for in the County Governments Act, 2012 and the Intergovernmental Relations Act, 2012 to co-ordinate intergovernmental relations and activities. The CC’s role should be facilitative.

8.0 Relationship between the Governor and County Commissioner As per Article 6 (2) of the Constitution, there are two levels of government; the National and County governments. These levels of

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government are distinct and interdependent and should conduct their mutual relations on the basis of consultation and co-operation. Practically, for each level of government to fulfill its constitutional obligations, it must have its own government machinery – the public service.

The presence of the CC at the County level is therefore not a contestable matter given that he/she is an official of the national government in-charge of coordination of the Constitutionally assigned functions of the national government. Governors are constitutional creatures whereas CC are administrative creatures exercising delegated powers of the Presidency which is a Constitutional organ. Governors exercise direct sovereign powers from the people who vote them into office.

The relationship between Governors and County Commissioners should be guided by the provisions of Article 189 of the Constitution and Section 54 of the County Governments Act, 2012 and the framework for intergovernmental relations provided for in the Intergovernmental Relations Act, 2012.

Given the constitutional mandate of the Governors, CCs must respect and develop cordial working relationships with them. CCs must create a mechanism that compliments the development agenda of county governments as they remain focused on the development priorities of the National Government. CC must not be seen to compete or undermine the authority of the Governor. CCs must demonstrate their prowess through effective service delivery and work closely with the county government. To this extent, CCs must give life and meaning to words like consultation, collaboration and co-operation for one Kenya.

9.0 Grading Scale for the County Commissioners The grading scale of CC must be determined based on reality on the ground, rules of natural justice and the nature of tasks they will be required to play. With respect to the reality on the ground, most ministries and agencies have already posted County Directors or HODs. Most of these directors and HODs are already placed in job groups “R” and “S”. From a practical and an administrative point of view, it will only be fair for a co-ordinator to be on a higher job group than the people he/she supervises or co-ordinates.

With respect to the tasks outlined for the CC and as the overall head of the National Government at the County level, remuneration for such an officer must be commensurate to the new orientation and position.

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Based on the above account, it would be prudent to hire or place a CC at job group “T” and equip the officer with the necessary financial, material and human support that the position demands. As the President’s direct appointee, the power of the office must not only be projected and felt through the office of the CC, it must be seen in the CC. Nobody in the county should have a second doubt as to who the Presidency’s representative and head of National Government at the county is.

In order to live to the expectation of this position of authority, it is recommended that there be suitability evaluation of the serving CCs to identify persons of high integrity and a record of performance to serve as CCs.

10.0 Monitoring and Evaluation Framework for the Performance of County Commissioners Each ministry has set its own annual performance targets. At the National level the Cabinet Secretaries and the Head of Public Service hold ministries to account on performance. At the County level, all HODs or directors while responsible for the achievement of their ministerial performance targets, should be required to develop and deposit their performance targets at the County level in the office of the CC. In consideration of National Government’s priorities and development agenda, the CC should develop a monitoring and evaluation framework to monitor on a regular basis the extent to which ministries at the County level are meeting their targets. These powers will allow the CC to monitor National Government development projects and programs at the County level in all the sectors.

11.0 Proposed Road Map The following actions need to be considered in redefining the powers of the County Commissioner.

1. H.E. the President to issue an Executive Order to appoint County Commissioners as CEOs and delegate the power to direct and co-ordinate the functions of the National Government at the County

2. Finalize the process of restructuring of the former system of administration (Provincial Administration) — responsibility of Ministry of Interior and Co-ordination of National Government

3. Develop new job descriptions and specify functional responsibilities of the CC – this should be done by HOPS, PSC and DPSM

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4. The National Government to initiate consultation with the Public Service Commission with the view to establish the County Human Resource Management Committee and to delegate to the committee, through the Principal Secretary, the power to transfer, recommend promotions and exercise disciplinary control within the county in respect of staff of the National Government

5. Undertake an exercise to re-evaluate and assess the suitability of current occupants of the office of CC – Responsibility of PSC, DPSM and Ministry responsible for coordination of National Government

6. Cabinet decision to empower CC by requiring ministries to recognize the office of CC as the head of Government functions at the county level – Responsibility of HOPS.

7. Ministry-based sensitization and communication on the role of CC – Responsibility of HOPS through circular and Cabinet and Principal Secretaries

8. Provide adequate resources for equipments, transport and other facilities to support the office of CC and other administrative offices – Responsibility of HOPS and Treasury and Ministry of Interior

9. Conduct a comprehensive Training Needs Assessment for CCs and all other administrative staff and review the current training program to equip officers with modern strategic management skills and the new orientation in Government — Ministry of Interior and Co-ordination of National Government, National Treasury and KSG

10. Re-orientation of Heads of Departments performing functions of the National Government at the County level- PSC DPSM and Ministry

This framework seeks to strengthen the National Government at the County and facilitate consultation and teamwork among the National Government staff at the County.