INTERPRETATION, IMPLICATIONS AND IMPLEMENTATION OF CONCURRENT FUNCTIONS
Introduction
There is need for a framework for the implementation of concurrent functions that brings coherence to the delivery of services. This will bring clarity to the functions of the two levels of government to avoid turf wars. It matters because the framework will reduce the wastage of resources for service delivery – financial and people/human resource /infrastructure
Functional assignments in the Constitution of Kenya, 2010 (COK) stipulates that except as otherwise provided by the Constitution, the functions and powers of the national government and the county governments, respectively, are as set out in the Fourth Schedule. Art. 186 (2) states, “A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.” The IGRTC is tasked with finalising the analysis, unbundling and transferring all pending functions to the County Governments with a view to providing clarity on the responsibility for each level of government – Exclusive, Residual and Concurrent Functions.
Concurrent functions are assigned through the Fourth Schedule of the COK and should be explicitly unbundled to communicate a clear demarcation. There are grey areas in the interpretation and understanding of ‘concurrent’ functions, which calls for further discussion. A concurrent function is a function that is performed jointly at the same time at two or more different levels of government. Steytler, N. (2017)[1] opines that, “In federations across the world it is widely accepted that few policy fields remain the exclusive domain of either the centre or the constituent units. The World Bank[2] postulates that “sharing responsibilities between levels of government works well only ‘when they are clear, when each tier’s responsibilities are well defined, and when the regulatory framework anticipates that local governments are sometimes agents of the central government and sometimes principals acting on their own’.”
This brief seeks to give decisive clarity on how the two levels of government can perform such functions to avoid overlaps and misunderstandings between the two levels of government. This can be achieved through the development of a framework for the implementation of concurrent functions that will bring coherence to service delivery by providing clarity on the functions of both levels of government and will also reduce turf wars, leading to a reduction in the wastage of resources (financial, people and infrastructure) meant for service delivery.
EVIDENCE:
In 2013, Kenya implemented the devolved system of governance in a big bang resulting in some elements remaining unresolved. Interpretation of transfer of functions between the two levels of government was to a large extent generic. Performance of Concurrent functions for example has generated disputes between the national and county governments. A report commissioned by the Intergovernmental Relations Technical Committee on Emerging Issues on Transfer of Functions to National and County Governments identified about eleven concurrent functions.
- Arising from disputes between the two levels
- Lack of clarity on concurrent function
- Court redress for interpretation of performance of certain functions by the two levels of government
Interpretations of the performance of these functions have ended up in the courts due to limited understanding of the delivery of the concurrent functions. A few cases can be referred to namely; Rafiki Ltd & 2 others v Nairobi City County Government & 3 others [2015] eKLR25, the dispute revolved over the functional responsibilities between the national and county governments concerning betting, gaming and lotteries. This mainly rested on the provision and understanding of section 34 of Part 1 of the Fourth Schedule to the Constitution as well as Section 4(a) of Part II of the Fourth Schedule. From the two sections, this is a concurrent function though what was not clear hence the court dispute, was the true extent of responsibility that either level of government exercises over the function[1]. The second case was when the court suspended the operations of the Nairobi City County Betting Act, 2014 as passed by the County Assembly of Nairobi to license, gaming, betting and lotteries within the City in 2014 until further notice. Equally, the court directed the then Transition Authority as the interested party in the dispute to organize a meeting between stakeholders in the matter including concluding the function unbundling exercise that it was conducting over this matter. The other case involved Council of Governors through Petition number 278 of 201726 – Council of Governors vs the Attorney General & 19 others, suing several national government agencies including inter alia Sports Kenya, National Museums of Kenya, KNLS, Tourism Regulatory Authority and the National Housing Corporation (NHC).
CALL TO ACTION:
This brief recommends raising awareness in the understanding of concurrent functions premised on fast-tracking the completion of the transfer of functions. Clarification of the role of each level of government in relation to concurrent functions can be achieved by doing the following.
[1] High Court of Kenya (Nairobi) – Petition Number 295 of 2014 and available at http://kenyalaw.org/caselaw/cases/ view/116083
CONCLUSION:
Fast-tracking the completion of the transfer of functions will enhance reduced conflict and improve synergy between the two levels of government in service delivery. Additionally, public resources will be utilized efficiently and effectively in service delivery leading to proximity services at the lowest level in the county. Ultimately, the will be clarity on what level of government to be held accountable for which function, hence empowering citizens for social accountability
References:
[1] www.brill.com Steytler, N. (2017). The Currency of Concurrent Powers in Federal Systems.
[2] World Bank. 1999. World Development Report 1999/2000. Entering the 21st Century. New York: Oxford University.
Contacts
Kenya Devolution Programme
Act Change Transform (Act!)
Woodlands Road, Off Dennis Pritt/ Lenana Road Kilimani
P.O. Box 76390-00508. Nairobi-Kenya
Tel: +254 20 8179231/ 8179240
Cell: +254 722203721/ 771634555
Email: info@act.or.ke
Website: www.act.or.ke
