By Ndungu Wainaina
The national government, while free to infiltrate its policies at the county levels, must do so through the structures recognized under the Constitution and not run parallel them. If it so desires, the national government may channel grants, whether conditional or unconditional to the county governments as additional revenue within the meaning of Article 202 and not any other entity which performs the functions allocated to the county by the Constitution.
The national government cannot purport to channel grants to an entity whose intended projects effectively undermine the role of the government at the county level
The national government is successfully pushing a legislative development philosophy that centralizes devolved functions. This is evidenced in the Water Act 2016, The National Drought Management Act 2016, the Land Laws (Amendment) Act 2016 and the Community Land Act 2016.
In these laws, Cabinet Secretaries and national institutions have been conferred with massive discretion to implement developmental and regulatory functions that the Constitution requires to be undertaken at the sub-national level.
Secondly, the new laws don’t provide in any way, how the two levels of government will cooperate and consult in the execution of exclusive or concurrent functions . A meaningful and conceptually satisfying legislative proposal must perforce embrace the post 2010 constitutional verity that legislation at the national level should clearly outline how the two levels of government will cooperate, consult and relate in the execution of concurrent functions. It must clearly delineate the regulatory powers of a national entity and the county governments.
NDUNG’U WAINAINA, ICPC