Any person may now petition the court to issue a declaratory order to compel Parliament to quickly pass the legislation.

Parliament can avert this situation by either acceding to President’s demands or by returning the Bill for the second time by two-thirds of the members without any amendments or with contrary amendments to the President for assent. But are there justifiable reasons for this impasse?

An official of the Law Society of Kenya says: “In my opinion, the President was misled by persons who never understood the amendment introduced by Hon. Nuh Abdi, and adopted and approved by Parliament. Parliament inserted section 52A to the Bill requiring public officers currently serving as District Commissioners (DCs), District Officers (DOs), Chiefs and Sub-Chiefs to—after the next general elections—serve in the county public service as sub-county administrators, ward administrators and officers of further decentralised units, respectively, until substantive appointments have been made by the County Public Service Board.”

The official who requested not to be named says what was the President’s response? First, the President rightly pointed out that under Article 6 of the Constitution, the County governments and the National government are distinct entities which can only conduct their mutual relations on the basis of consultation and cooperation.

He says that Article 189 of the Constitution requires either level of government to perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level. The President argues that the “deployment” of the officers to the county violates the principle of distinctiveness. This is far from the truth.

The process of devolution will lead to the restructuring of various ministries and organs in public service. Based on the allocation of functions in the Sixth Schedule, many public officers in the health, housing, roads, agriculture sector and local authorities among others, will seek employment in the 47 counties.

The lawyers says what the County Government Bill and the Urban Areas and Cities Act have done is to guarantee the continuation of their employment in the County government until they are formerly absorbed by the County Government or placed in the restructured national government. There has been uncertainty as to the security of the jobs of DCs, DOs Chiefs and their assistants. What section 52A has done is to guarantee continuation of their jobs in County government.

The President argues that Parliament has usurped the power of national government to restructure provincial administration under Paragraph 17 of the Sixth Schedule to the Constitution. As we all know, provincial administration is a system of administration used by the central government, where service delivery is executed at the province, district, division, location and sub-Locations.

“In this system, we have provincial agricultural officers, we have district medical officers, we have district engineer among others. Parliament has in no way restructured the system but rather deployed the officers to serve in counties,” says the Commission for the Implementation of the Constitution (CIC).

The CIC chairman, Charles Nyachae says the restructuring will however be properly done using the proposed National Administration and Coordination Bill. Even if Parliament has done so, they would merely be exercising their power to legislate on any matter and would be acting as one arm of government. The reference to the government restructuring provincial administration in the Sixth Schedule does not mean the national executive. Government includes the legislature who will play a major role in this transitional process.

“Why is our President complaining about these officers being deployed to counties yet a similar exercise was done in regard to local authority staff, who are far much more in numbers, under the Urban Areas and Cities Act which he assented to without complain?,” posed Mr. Nyachae.

He argues that parliament has not in any way transferred any function of national government to counties. There is no reference to any security function being deployed to counties. Instead, the Bill allows the governor to chair a County Security Council subject to structure set out in Police Service Act and other security legislation to be enacted.

Already vide section 41, the National Police Service Act, creates a County Policing Authority which is chaired by the Governor or a member of the County Executive Committee appointed by the Governor. In that committee we have two elected members nominated by the County Assembly. It is therefore baffling for the President to now reject the Bill on grounds which he already accepted in the National Police Service Act. In fact in the Act, Provincial Administration is already deprived of any security function.

In my experience as member of the Task Force on Devolved Government, Kenyans appreciate the work done by the provincial administration. However, they were of the opinion that there functions must not conflict with the roles of county government and as such, offices of the DCs, DOs, Chief and Sub-Chief together within village council be established under the County government.

The official of the task force says: “They were also of the opinion that in designing national administration, utmost care must be exercised to avoid duplication of functions and consequently wastage of taxpayer’s money. Many were of the opinion that national administration structure must not go beyond the sub-county but rather that socket approach be used where national government will utilise county administration at the lower levels.”

He argued finally, by deploying DCs, DOs, Chief and Sub- Chiefs to immediately work under County government, Parliament is assisting counties to take advantage of the most experienced administrators to ensure that they expedite the transitional process. It will assist in addressing the challenges and confusion that will greet the period immediately after the elections because County government will benefit from the immense knowledge and expertise of these officers. It will avoid the uncertainty that would have ensued between their roles and that of the national government.

“In my humble submission Parliament should reject President’s Memorandum but assist in addressing his concerns when the National Administration and Coordination Bill is brought to the House,” said the official.