31.7.2009 THE LOCAL GOVERNMENT SYSTEM IN KENYA 1. DECENTRALISATION IN KENYA In the 1990s the Kenyan government, similar to many other African governments, initiated a series of radical market-orientated reforms, ultimately followed by a comprehensive programme of reforms also in the public sector and local government. The Kenyan Local Government Reform Programme (KLGRP) – established and funded by the World Bank and continuing through donor funding – has worked since the mid-1990s to strengthen the Local Government system, to enable local authorities to deliver services and to increase local accountability.12 The 1996 Omano Commission of Inquiry on Local Authorities had pointed to a large number of small and non-viable local authorities.3 The reforms within the local government sector continued through the late 1990s and were, in the beginning of the new Millennium, encouraged by the requirements of the international donor community for African countries to prepare a Poverty Reduction Strategy Paper. In the Poverty Reduction Strategy Paper (2000-2003) the potential contribution of local government was recognised and a number of strategies to improve the management of local authorities outlined. The latter included the accelerating of the KLGRP. After the PRSP, Kenya has adopted a Country Assistance Strategy (2004-2007). A new strategy is being prepared. CAS emphasis strengthening public sector management and accountability, but also the role of local government.4 It is likely that there will be any major changes concerning this matter in the new CAS. Kenya has not adopted a policy of decentralisation by devolution5. The local authorities have a minor role in service provision as at present most of the service delivery and development activities are undertaken by line ministries, non-governmental organisations or through the Constituency Development Fund system. CLGF, Local Government System in Kenya, sine anno. World Bank Country Brief, Kenya. 5 Devolution is a more comprehensive type of decentralisation, and generally refers to the transfer of authority for decision making, finance and management from central government to local authorities with corporate status and considerable degree of autonomy from the central government. There are some features that are commonly present in devolution. For example, the local authorities have authority to raise their own revenues and to acquire resources to perform public functions, and have clearly recognised geographical boundaries over which they exercise authority. Kuusi 2009, 7. 3 4 1 2. LOCAL GOVERNMENT: POSITION AND STRUCTURE 2.1 Legal Basis of Local Government The current constitution is silent on the subject of local government. It is expected, however, that the local government will be fully recognised in the new constitution.6 The Constitution of the Republic of Kenya does not define the local government system. Revision processes of the Constitution were initiated in 1997, when a Constitutional Review Committee was first set up.7 The revision of the Constitution might strengthen local self-governance in Kenya, as the subsequent committees have proposed a stronger role and more autonomy for the local government with powers and functions devolved to the local authorities from the central government, but the proposed draft constitution was rejected in a referendum in 2005. The rejection was mainly a result of a protest vote against the way the final draft versions were prepared and some parts of the draft constitution not related to the envisaged Chapter 14 on ‘devolved government’. The revision processes are still ongoing, but it is unclear when the revised constitution might be adopted. 8 In March 2008 the Kenyan parliament amended the Constitution (Constitution of Kenya Amendment Bill 2008). This is a step towards the new constitution. Revisions in the local government legislation are expected to follow if a revised constitution is adopted.9 The main piece of legislation governing all local authorities in Kenya is the Local Government Act (Cap 265) of 1977. To this there have been a series of amendments. Work on a draft bill to substantially amend the legislation has, nonetheless, been suspended until a new constitution has been enacted. 10 Other laws that affect the management of local authorities and their revenue base include: Local Government Loan Authority Act (Cap 270) Land Planning Act (Cap 303) Trade Licensing Act (Cap 497) Rating Act (Cap 267) Valuation for Rating Act (Cap 255) Agriculture Act (Cap 218) Local Authorities Transfer Fund Act No. 8 of 1998 Constitution of Kenya11 2.2 Organisational Structure of Local Government The Republic of Kenya is a unitary state, administratively divided into seven provinces – Central, Coast, Eastern, North East, Nyanza, Rift Valley, Western – and one area, the city of Nairobi. The Provinces, and the one area, are further divided into 69 districts, which have administrative responsibilities under the De-concentration Initiative, the District 6 Ibid. 7 CLGF, Local Government System in Kenya, sine anno. 8 Kuusi 2009. 9 Land et al. 2008, 21–23. 10 Ibid. 11 http://www.kenyalaw.org/kenyalaw/klr_home/; Above information adopted from: CLGF Local Government System in Kenya, sine anno. 2 Focus for Rural Development (DFRD), introduced in 1983. Under Districts there are divisions, locations and sub-locations. Kenya has 175 local authorities including 67 county councils, 43 municipal councils, 62 town councils, and three city councils. 12 The Provincial Commissioners are appointed by the President and head the provincial administrations. The provinces are divided into 69 districts. The District Commissioner is also appointed by the President, and heads the district administration. The districts are divided into divisions, the divisions into locations, and the locations into sub-locations, which have divisional officers, chiefs and sub-chiefs as heads their administration assisting the District Commissioner.13 The City and Municipal Councils are led by a mayor, whereas the Town and County Councils fall under the leadership of a chairperson, elected by the councillors following the local elections.14 The local government in the Republic of Kenya consists of 175 local authorities including 67 county councils, which are the rural local government authorities in Kenya, and the urban local authorities of 43 municipal councils, 62 town councils, and three city councils. The geographical borders of the county councils in almost all cases coincide with the borders of Kenya’s administrative districts. The county councils cover all the geographical area that is not assigned to the jurisdiction of the urban authorities.15 Under the Local Government Act (Cap 265) of 1977, the cities of Nairobi, Mombasa and Kisumu are treated as municipalities as their status, duties and functions are not defined in legislation, although the City of Nairobi was established by Charter 16. The legislation gives all local authorities – City, Municipal and Town Councils – similar responsibilities. In practise, however, the established municipal councils are able to provide a wider range of services than the cities, towns and some newer municipalities. The local authorities have a semi-autonomous status within their geographic area. 17 “There are no executive committees or cabinets. Councils conduct their business through committees, which make recommendations to the full council.”18 12 13 14 15 16 17 18 Land et al. 2008, 21–23; CLGF Local Government System in Kenya, sine anno. CLGF, Local Government System in Kenya, sine anno. Ibid. Ibid. Lumumba 2004. CLGF, Local Government System in Kenya, sine anno. Ibid. 3 Figure of the Local Government System in Kenya Adapted from Peltola, 2008 CENTRAL GOVERNANCE President Government Parliament: National Assembly 7 x PROVINCES & NAIROBY AREA Provencal Commissioner 69 x DISTRICTS Governance is divided into levels of division, location and sub-location. LOCAL GOVERNANCE Urban areas 3 x City Council Nairobi, Kisumu, Mombasa (circa. 1 043 395 inhabitants) 43 x Municipal Council (c. 94 000 inhabitants Rural areas 62 x Town Council (c. 46 000 inhabitants) 67 x County Council (c. 295 000 inhabitants) 2.3 Local Government Elections The local government elections are held at the same time as the presidential and National Assembly elections as prescribed in Section 58 of the Local Government Act (Cap. 265) of 1977. The local councils are dissolved after the dissolution of the National Assembly.19 Two-thirds of the councillors in each authority are directly elected in single-member wards for a five-year term. The Minister of Local Government appoints the other onethird, with nominations made by the political parties or coalitions on the basis of their representation within each council. The district commissioner (or their representative) is also a councillor, providing a link between the local authority and district activities. The system is uniform across the country.20 The remuneration of the councillors is determined by the central government through the Ministry of Local Government. The councillors are paid allowances from council revenues. The level of the allowances has been subject to many debates over the recent years. Many councils lack the capacity to pay the set allowances to councillors.21 The local government elections were last held in December 2007. The next elections are predicted to take place in 2012. 22 2.4 Local Government Staffing Senior staff to Local Governments is recruited through the Public Service Commission (PSC), with the Minister of Local Government having full discretion over the most senior 19 CLGF, Local Government System in Kenya, sine anno. 20 Ibid. 21 Kuusi 2009, 2. 22 CIA World Fact book. 4 appointments.23 The commission is also responsible for promotions and disciplinary matters. “Other staff are directly recruited and dismissed by local authorities. Part-time casual workers are also employed. A town clerk, appointed by the PSC, is the head of the paid service in the city, municipal and town councils. A county clerk, similarly appointed by the PSC, is the chief officer in the county councils. The town clerk and the treasurer are supported by other officers depending on the size and responsibilities of the council.”24 In addition to the town clerk’s and treasure’s department, there may be other departments such as the works and planning department, the education and social services department and the water and sanitation department. 25 2.5 Independent Scrutiny "Since 2000, under an amendment to the Local Government Act, Local Authorities have been required to establish an independent internal audit unit, with an internal auditor reporting to the Finance Committee. Financial statements must be submitted at the end of each financial year for audit by the Controller and Auditor General." 26 3. LOCAL GOVERNMENT: POWERS AND RESPONSIBILITIES 3.1 Basic Public Services The Local Government Act of 1977 provides for strong central government regulation and oversight on the local authorities. The Act prescribes many functions to the municipalities, but mostly on the basis of the approval of the Minister of Local Government or other ministers as prescribed by other Acts regulating the functions in question. The Local Government Act obliges the local authorities to undertake only few functions in service provision. 27. Over the years the service delivery capacity of local authorities has deteriorated to the extent that even the most basic services are not always provided. Central government is forced to fill in the gaps in service delivery when it comes to water and health services for instance.28 For example the provision of health and education services is usually only the task of the larger municipalities.29 The services provided by the rural local authorities mainly include, and are often at best limited to, the maintenance of rural access roads, establishment and maintenance of public markets, bus parks and slaughter houses, housing and implementation of social welfare programmes, including support to and burial of destitute people30. The reasons for the poor state of service delivery by the local authorities are many. Firstly, the existing facilities in most local authorities were not planned to cater for such an amount of people now residing in the municipal areas. 31 The high population growth rates are mainly the result of the expansion in commerce and industrial development. Secondly, the local government capability to provide services is hindered by insufficient resource base, mismanagement, weak technical and institutional capacity to increase 23 24 25 26 27 28 29 30 31 CLGF, Local Government System in Kenya, sine anno. Ibid. Ibid. CLGF, Local Government System in Kenya, sine anno. Local Government Act (Cap. 265) of 1977, Section 167. UN-Habitat 2002. Land et al. 2008, 13, 19; Schuler 2004, 8. Land et al. 2008, 13. Ibid. 5 service coverage, and lack of planning and foresight.32 4. DECISION MAKING PARTICIPATION SYSTEMS OF LOCAL GOVERNMENT: RESIDENTS' Along with the political liberalisation, the shifting emphasis in development discourse and industry towards promoting more socially equitable economic growth and meeting the basic needs of the poor has created pressures for a wider participation of the people in decision-making. “Participation and decentralization are considered to have a symbiotic relationship, as successful decentralization requires some degree of local participation.”33 In relation to this, the Kenyan government has requires that the local authorities produce a Local Authority Service Delivery Action Plan (LASDAP) together with the local organisations, groups and associations.34 In the first year of LASDAPs (2001/2002) more than 27,000 individuals participated in all together 900 meetings. 35 "Participant groups included market and trader associations, women's groups, self-help groups, handicapped groups, neighbourhood groups, health and medical groups, churches and schools." 36 Elected representatives both national and local also took part, together with some government officials.37 Kenya’s transfer into multi-party system of governance has been followed by a rapid growth in civil society networks and groups. Such growth in civil society activity has not been matched by opportunities for participation in the local government system. 38 The law only guarantees political participation through civic elections, as is assumed that councillors effectively represent citizens. Yet the councillors rarely hold consultative meetings in their respective wards.39 The Local government Act makes no reference to citizens’ participation. 40 “It allows, but does not require the local authority to publish a summary of a budget estimates in a local newspaper.”41 Local citizen’s can attend full Council meetings as observers. They cannot, however, attend any committee meetings as these are held behind closed doors as closed sessions.42 5. FINANCE 5.1 Revenue The local authorities collect revenue from different taxes, fees and charges. The local authorities also receive resources from the central government through the Local Authorities Transfer Fund (LATF) grants and the Road Maintenance Levy Fund (RMLF). There are several acts of parliament – the Local Government Act, the Rating Act, the Valuation for Rating Act and the Regional Assembly Act – which give local authorities in Kenya a right to raise income from a wide variety of sources, subject to the approval of the ministry of local government.43 “No particular source of revenue is required or 32 33 34 35 36 37 38 39 40 41 42 43 Above information adopted from UN-Habitat 2002. UN-Habitat 2002, 44. CLGF, Local Government System in Kenya, sine anno. Ibid. Ibid. Ibid. CLGF, Local Government System in Kenya, sine anno. UN-Habitat 2002, 44. CLGF, Local Government System in Kenya, sine anno. Ibid. Ibid. UN-Habitat 2002. 6 reserved exclusively for specific types of local authorities, but some general patterns have emerged. Large municipal councils are less diversified in their principle sources of revenue, relying heavily on water charges, land rates, house rents, sewerage fees and grants for teachers’ salaries with small percentages from all others. Town councils are less reliant on land rates and infrastructure-based revenue but rely more on plot rents, licenses and incomes from less capital-intensive services such as market and bus park fees. County councils tend to have fewer substantial sources of revenue than the councils in the urban areas, except for those that charge production excess on cash crops or have access to land rates. Most county councils rely heavily on market related fees and trade licenses, which are collected in at least several trading centres as well as the administrative seat of the county council. Some councils have bus parks and slaughterhouses, and a few collect large amounts of revenue from game reserves within their areas of jurisdiction. Most other revenue sources are unreliable and unproductive. The financial sustainability of any local authority in Kenya is to a large extent dependent on the central government/local authorities' relationships.”44 It is also important to note that the sources and portions of local authorities’ own source revenues vary between the different types of local authorities. City and municipal councils get their major sources of income from property rates, vehicle parking and single business permit. The Nairobi City Council and municipal councils, which represent 27 per cent of all local authorities, collected 61 per cent of all local authorities’ own source revenues in fiscal year 2006-2007. While town councils represent 35 per cent of all local authorities, they collected only 6 per cent of all local authorities’ own source revenues, which indicates that they considerable challenges in their viability as service delivering entities. County councils represent 38 per cent of all local authorities, and they collected 24 per cent of all local authorities’ own source revenues. County councils are more dependent on LATF transfers than urban councils. The county councils’ revenue sources differ significantly among different county councils. For example, 34 per cent of county councils’ total own source revenues originated from Game Park Fees, but the fees were a significant revenue source only for four county councils.45 In 1998 the Kenyan government established the Local Authority Transfer Fund (LATF). Through the LATF the government allocates 5 % of the national personal income tax to all local authorities in Kenya. These allocations, although general grants, come with certain performance conditions, which have considerably increased the willingness of local authorities to deliver on the basic requirements of accountability: production of budgets and accounts, information about debtors and creditors and display of information about resource availability and use.46 Neither the Local Government Act, the Rating Act (Cap. 267) of 1963 nor the Valuation of Rating Act (Cap. 266) of 1956 provide assurances or recognition that the local authorities are entitled to adequate financial resources of their own or that their financial resources shall be commensurate with the responsibilities provided for by law.47 In 2002/2003, to delivery were: 1. 2. 3. 44 45 46 47 48 be eligible for LATF funding, the requirements in terms of service At least 50% must be allocated to service delivery Not more than 60% of the total should be for personnel Statutory charges must be paid within the year in which they are due48 Ibid. Republic of Kenya: Local Authorities Transfer Fund (LATF): Annual Report FY 2006-2007, 17–18. Devas and Grant, 2003, 314. Kuusi 2009, 16. Above information adopted from: CLGF, Local Government System in Kenya, sine anno. 7 Since 2001/2002 the requirement for LAFT funding has been that the local authorities provide: 1. 2. 3. 4. A statement of receipts, payments and balances, and an abstract of accounts A statement of debtors and creditors A revenue enhancement plan (REP) Local Authority Service Delivery Action Plan, identifying and prioritising local expenditures, prepared following a participatory planning with citizens’ of the area 49 The local authorities collect revenue from different taxes, fees and charges. The local authorities also receive resources from the central government through the Local Authorities Transfer Fund (LATF) grants and the Road Maintenance Levy Fund (RMLF). The sources and proportions of local authorities’ own source revenues vary between the different types of local authorities. The county councils in the rural areas are more dependent on LATF transfers than urban councils.50 5.2 Expenditure Most of the local authorities’ expenditure is used for recurrent expenditure. For example in fiscal year 2006-2007 the recurrent expenditure (personnel, operations and maintenance) formed 68.2 per cent of the total expenditure of all local authorities, while the share of the capital expenditures was 15.2 per cent, debt resolution’s 16.2 per cent and loan repayments’ 0.1 per cent.51 The Local Government Act prescribes that local authorities are required to prepare a budget for a financial year, which has to be submitted to the Minister of Local Government for the Minister’s approval. The Minister may from time to time exempt any local authority or class of local authorities from the requirement to obtain the Minister’s approval for the budget.52 In 2000/2001 the aggregate expenditure of local authorities was KSh 9.1 bn (US$ 115.29m). It divided as follows: 1) 2) 3) 4) 5) Personnel costs Operations Civic Expenditure Maintenance Other 48.5% 25.5% 6.5% 5.7% 13.8%53 The contribution of local government to GDP was 1.1 per cent in 2001. 54 6. WOMEN IN LOCAL GOVERNMENT Despite the decentralisation efforts in Kenya, there are still no mechanisms in place that would guarantee the representation of women in local government. In the local elections 49 Ibid. 50 Kuusi 2009, 2. 51 Republic of Kenya: Local Authorities Transfer Fund (LATF): Annual Report FY 2006-2007, Table 6. 52 Local Government Act (Cap. 265) of 1977, Sections 212–213. 53 Information adopted from: CLGF, Local Government System in Kenya, sine anno. 54 Ibid. 8 of 2002, some 381 women stood as candidates and 97 were elected, representing a mere 2.6 % of all (approximately 3,800) councillors.55 Gender equality in Kenya is promoted by the National Policy on Gender Development of 2000. The Government is also in a process of developing a Gender mainstreaming Implementation Plan of Action to strengthen the implementation of the Policy. Women’s participation in decision making at the household and national levels has been found to be an important ingredient in development.56 Since two thirds of the councillors are directly elected and the remaining one third is appointed by the Minister of Local Government from the nominations made by the political parties or coalitions on the basis of their representation in the councils.57 There are often women among the appointed members. There is no quota system in use to ensure the representation of women. Still, in recent years the number of women at local government level has increased.58 Also the formulation of the new Constitution may bring changes since the equal treatment of men and women is highlighted there in many ways59. Female councillors in Kenya According to Simonen 2009 Local Authority Councillors 2008 Local Authority Councillors 2003 13 % 16 % Women Women Men Men 84 % 87 % 7. THE ASSOCIATION (ALKAG) OF LOCAL GOVERNMENT AUTHORITIES OF KENYA The Association of Local Government Authorities of Kenya was established in 1959. The goal was to facilitate the development of an effective and viable local government system and to act as a national forum to lobby for and promote strong local governance.60 ALKAG is a voluntary organisation. In other words, no local government authority is obliged to participate. It is funded by member contributions.61 55 CLGF, Local Government System in Kenya, sine anno ; ALGAK website. 56 Country Gender Profile2007: Kenya, 6. 57 CLGF, Local Government System in Kenya, sine anno. 58 Millennium Development Goals: Status Report for Kenya, 18-19. 59 Country Gender Profile2007: Kenya, 9. 60 CLGF, Local Government System in Kenya, sine anno. 61 Ibid.; ALGAK website. 9 8. TRADITIONAL LEADERS AND LOCAL GOVERNMENT Unlike in many other African countries, traditional leaders are not formally involved in the local government of Kenya.62 62 Ibid. 10 KENYA: COUNTRY FACTS Independence: 1963 Capital: Nairobi (population est. 2, 2 million) Administrative divisions: 7 provinces and 1 area; Central, Coast, Eastern, Nairobi Area, North Eastern, Nyanza, Rift Valley, Western Population: 39 002 772 (2009 est.) Infant mortality rate: 54 deaths/1,000 live births Literacy: 85,1% Languages: English (official), Kiswahili (official), numerous indigenous languages Religions: Protestant 45%, Roman Catholic 33%, indigenous beliefs 10%, Muslim 10%, other 2% Last local elections held: December 2007. Councillors are elected for a five-year-term. GDP: $61,83 billion (2008 est.) GDP real growth rate: 2,2% (2008 est.) GDP per capita: $1,600 (2008 est.) Export commodities: tea, horticultural products, coffee, petroleum products, fish, cement Population without sustainable access to an improved water source: 39% People living under 1 $ per day: 22,8% (2008 est.) Sources: CIA World Fact book UNDP Human Development Report 2009 11 Adopted from CLGF’s The Local Government System in Kenya: (x) = discretionary services by the local authority SERVICE General admin. Police Fire Protection Civil Protection Criminal justice Civil justice Civil status register Statistical Office Electoral register CENTRAL GOVERNMENT x x x x x x x (x) (x) x x x x x x Housing and Town Planning Housing Town planning Regional planning Environment and public sanitation Water and sanitation Refuse collection and (x) (x) (x) Public health Primary care Hospitals Health Protection Transport Roads Transport Urban roads Urban rail Ports Airports LOCAL GOVERNMENT (x) Education Pre-school Primary school Secondary school Vocational and technical Higher education Adult education Social welfare Kindergarten and nursery Family welfare services Welfare homes Social security DISTRICTS (x) (x) (x) (x) (x) x x (x) x (x) (x) (x) 12 disposal Cemeteries and crematoria Slaughter-houses Environmental protection Consumer protection (x) (x) (x) Culture, leisure and sports Theatre and concerts Museums and libraries Parks and open spaces Sports and leisure Religious facilities Utilities Gas services District heating Water supply Electricity Economic Agriculture Economic promotion Trade and industry Tourism (x) (x) (x) (x) (x) (x) (x) 13 SOURCES Association of Local Government Authorities in Kenya (ALGAK) http://www.algak.or.ke/index.php Accessed 7.5.2009 Beall, J. (2005) Decentralising Government and Centralising Gender in Southern Africa: Lessons from the South African Experience, Occasional Paper 8, United Nations Research Institute for Social Development CIA World Fact Book https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html Accessed 7.5.2009 CLGF (Commonwealt Local Government Forum): Local Government System in Kenya (sine anno) http://www.clgf.org.uk/userfiles/CLGF/File/2008_Country_Files/KENYA.pdf. Accessed 7.5.2009 Devas, N. and Grant, U. (2003) Local Government Decision-Making – Citizen Participation and Local Accountability: Some Evidence from Kenya and Uganda, Public Administration and Development, Vol. 23, No.4 Human Development Report 2007/2008, UNDP http://hdrstats.undp.org/countries/data_sheets/cty_ds_KEN.html. Accessed 7.5.2009. KenyaLaw.org http://www.kenyalaw.org/kenyalaw/klr_home/ Accessed 8.5.2009 Kuusi Suvi (2009): Aspects of Local Self-Government: Kenya. North-South Local Government Co-operation Programme, The Association of Finnish Local and Regional Authorities. Land, Gerhard van’t, Jesper Steffensen and Harriet Naitore (2008): Local Level Service Delivery, Decentralisation and Governance: A Comparative Study of Uganda, Kenya and Tanzania Education, Health and Agriculture Sectors. Kenya Case Report. March 2008. Institute for International Cooperation and Japan International Development Agency. Peltola Outi (2008): Selvitys Suomen, Namibian, Etelä-Afrikan, Tansanian, Kenian, Ghanan ja Swazimaan paikallisesta ympäristöhallinnosta. North-South Local Government Co-operation Programme, The Association of Finnish Local and Regional Authorities. Republic of Kenya (sine anno): Local Authorities Transfer Fund (LATF): Annual Report FY 2006-2007. Simonen Saara (2009): Women in Local Governance Kenya. North-South Local Government Co-operation Programme, The Association of Finnish Local and Regional Authorities. UN-Habitat (2002): Local Democracy and Decentralisation in East and Southern Africa: Experiences from Uganda, Kenya, Botswana, Tanzania and Ethiopia, Nairobi: UN-Habitat. http://www.unhabitat.org/downloads/docs/2112_32546_Local%20Democracy%20and% 20Decentralization.pdf Accessed 7.5.2009. World Bank: Kenya Country Brief 14 http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/KENYAEXTN/0,,m enuPK:356520~pagePK:141132~piPK:141107~theSitePK:356509,00.html Accessed 11.5.2009 15