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Draft Constitution; Devolved Government ...be Informed
Listing #35331 by ›› kedo on 05-May-2010 10:01 am . 380 views . 107 prints .  › Flag This Listing
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Please take sometime to understand devolution.

CHAPTER FOURTEEN

DEVOLVED GOVERNMENT

Part 1—Objects and principles of devolved government
Objects of devolution
213. The objects of the devolution of government are to—
(a) ensure the democratic and accountable exercise of sovereign power;
(b) foster national unity by recognizing diversity;
(c) give powers of self-governance to the people at all levels and enhance
the participation of the people in the exercise of the powers of the State;
(d) recognize the right of local communities to manage their own local
affairs and to form networks and associations to assist in that
management and to further their development;
(e) protect and promote the interests and rights of minorities and
marginalized groups at all levels;
(f) promote social and economic development and the provision of
proximate, easily-accessed services throughout Kenya;
(g) ensure equitable sharing of national and local resources throughout
Kenya;
(h) facilitate the decentralization of State organs, their functions or services
from the capital of Kenya;
(i) promote the participation of the people in the making of decisions
affecting them; and
(j) enhance checks and balances and the separation of powers.

Principles of devolved government
214. Devolved governments established by this Constitution reflect the following
principles—
(a) devolved governments shall be based on democratic principles and the
separation of powers;
(b) devolved government shall have reliable sources of revenue and
autonomy to govern and deliver services effectively; and
(c) no more than two thirds of the members of representative bodies in each
devolved government shall be of the same gender.
Part 2—Regional governments

Regional governments
215. (1) There shall be a regional government for each region, consisting of an
assembly and an executive committee.
(2) The principal role of a regional government is to co-ordinate the
implementation, within the counties forming the region, of
programmes and projects that extend across two or more counties of
the region.
(3) An Act of Parliament shall, subject to this Constitution, provide for the
governance structure and management of the Nairobi Region as a
metropolitan city and the capital of Kenya.
(4) Despite Article 228 and the Fourth Schedule, an Act of Parliament
shall provide for taxation powers for the government of the Nairobi
Metropolitan Region.

Regional assemblies
216. (1) The legislative authority of a region is vested in the regional assembly
of that region.
(2) A regional assembly—
(a) consists of three delegates elected from each county within the
region by the assembly of that county from among members of
the county assembly;
(b) is elected for a term of five years; and
(c) has power to pass any laws that are reasonably necessary for, or
incidental to, the effective exercise and performance of the
powers and functions assigned to the region.
(3) In electing delegates, a county assembly shall take into consideration
ethnic and other diversities, including gender, represented in the
county.
(4) A regional assembly, while having due regard to the principle of the
separation of powers, has power to maintain oversight over the
regional executive committee and any other executive organs
established by laws passed by the assembly.

Regional executive committees
217. (1) The executive authority of a region is to be exercised by the regional
executive committee.
(2) The committee consists of—
(a) a regional director, or in the case of Nairobi, a mayor, elected in
accordance with Article 218 and 219, respectively;
(b) a deputy regional director, or in the case of Nairobi, a deputy
mayor, elected in accordance with Article 218 and 219,
respectively;
(c) not more than five other members, not being members of the
regional assembly, appointed by the regional director with the
approval of the regional assembly.
(3) A regional director and a deputy regional director of a region shall be
the chief executive and deputy chief executive respectively.
(4) In the case of Nairobi, the mayor and the deputy mayor shall be the
chief executive and deputy chief executive respectively.
(5) Members of the regional executive committee are accountable
collectively and individually to the regional assembly for the exercise
and performance of their powers and functions.

Election of regional director and deputy regional director
218. (1) A regional director and a deputy regional director shall each be elected
by an electoral college consisting of the members of the county
assemblies within the region.
(2) A member of a county assembly is not eligible to be elected as regional
director or deputy regional director.
(3) The candidate at an election under clause (1) who receives more than
half of all the votes cast in the election shall be declared elected.
(4) If no candidate is elected, a second ballot shall be held and in that
ballot the only candidates shall be—
(a) the candidate, or the candidates, who received the greatest
number of votes; and
(b) the candidate, or the candidates, who received the second
greatest number of votes.
(5) Where more than one candidate receives the greatest number of votes,
clause (4)(b) shall not apply and the only candidates in the fresh ballot
shall be those contemplated in clause (4)(a).
(6) The candidate who receives the greater number or the greatest number
of votes, as the case may be, in the fresh ballot shall be declared
elected.
(7) Subject to clause (8), the county governor and the deputy county
governor each hold office for a term of five years but each of them is
eligible, if otherwise qualified, for re-election for one further and final
term.
(8) For the purposes of clause (7), a person who has continuously served
as county governor or deputy county governor for at least two and half
years shall be deemed to have served a full term.

Election of mayor and deputy mayor of Nairobi
219. (1) The mayor and deputy mayor of Nairobi shall each be elected by more
than half of the votes cast by voters who meet the requirements relating
to residence within the region, prescribed by an Act of Parliament.
(2) The election of the mayor and deputy mayor shall be by universal
suffrage.
(3) Subject to clause (1), an Act of Parliament shall prescribe the manner
of election of the mayor and deputy mayor.

Functions of regional executive committees
220. (1) The members of the regional executive committee are responsible for
the exercise of executive powers in relation to the functions and
powers assigned to the region.
(2) The regional director may assign specific responsibilities to the
members of the Committee.

Part 3—County governments
County governments
221. (1) There shall be a county government for each county, consisting of a
county assembly and a county executive.
(2) Every county government shall decentralize its functions and the
provision of its services to the extent that it is efficient and practicable
to do so.
(3) Despite the provisions of this Chapter, the counties forming the
Nairobi Region for the purposes of Article 129(5) shall not perform
any other function, nor exercise any power, of a county government
except as is provided in an Act of Parliament referred to in Article
215(3).

Members of county assembly
222. (1) A county assembly consists of—
(a) members elected one each for the wards, either directly or
through proportional representation, with such boundaries, as
are prescribed by Act of Parliament, passed after taking account
of recommendation of the Independent Electoral and Boundaries
Commission;
(b) such number of special seat members, in proportion to the votes
received by each political party under clause (1)(a), as to ensure
that no more than two-thirds of the membership of the assembly
are of the same gender;
(c) such number of members of marginalized groups, including
persons with disabilities, minorities, older persons and youth, in
proportion to the votes received by each political party under
clause (1)(a), as are prescribed by Act of Parliament; and
(d) such number of independent candidates as may be elected under
clause(1)(a).
(2) The filling of special seats under clause (1)(b) shall be determined after
declaration of elected members from each ward.
(3) A county assembly is elected for a term of five years.

County executive committees
223. (1) The executive authority of a county is exercised by a county executive
committee, consisting of—
(a) a county governor and a deputy county governor; and
(b) subject to clause (2), such other members as are appointed by
the county governor from among the members of the county
assembly, with the approval of the assembly.
(2) The number of members appointed under clause (1)(b) shall not
exceed—
(a) a third of the number of members of the county assembly, if the
assembly has no more than thirty members; or
(b) ten, if the assembly has more than thirty members.
(3) A county governor and a deputy county governor shall be the chief
executive and deputy chief executive respectively of the county.
(4) During the absence of the county governor, the deputy county
governor has all the powers, functions and responsibilities of the
county governor.
(5) Members of a county executive committee are accountable collectively
and individually to the county assembly for the exercise and
performance of their powers and functions.

Election of county governor and deputy county governor
224. (1) The county governor and deputy county governor shall each be elected
by the county assembly from among the members of the assembly.
(2) The candidate at an election under clause (1) who receives more than
half all the votes cast in the election shall be declared elected.
(3) If no candidate is elected, a second ballot shall be held and in that
ballot, the only candidates shall be—
(a) the candidate, or the candidates, who received the greatest number
of votes; and
(b) the candidate, or the candidates, who received the second greatest
number of votes.
(4) Where more than one candidate receives the greatest number of votes,
clause (3)(b) shall not apply and the only candidates in the fresh ballot
shall be those contemplated in clause (3)(a).
(5) The candidate who receives the greater number or the greatest number
of votes, as the case may be, in the fresh ballot shall be declared
elected.
(6) A county governor and a deputy county governor each hold office for a
term of five years but each of them is eligible, if otherwise qualified,
for re-election for one further and final term.
(7) For the purposes of clause (6), a person who has continuously served
as county governor or deputy county governor for at least two and half
years shall be deemed to have served a full term.

Functions of county executive committee
225. (1) A county executive committee shall—
(a) implement laws of the county assembly;
(b) implement, within the county, national and regional legislation
to the extent that that legislation so requires;
(c) co-ordinate the functions of the county administration and its
departments; and
(d) co-ordinate the functions of the administrative units within the
county.
(2) Without in any way limiting any power of the assembly, a county
executive committee may prepare and initiate proposed laws for
enactment by the assembly.
(3) The county executive committee has such other powers and functions
as may be conferred on it by this Constitution or by national or
regional legislation.
(4) A county executive committee shall provide the county assembly with
full and regular reports concerning the matters under the control of the
county executive committee.

Urban areas
226. (1) National legislation shall provide for the governance and management
of urban areas.
(2) Legislation made under clause (1)—
(a) shall—
(i) establish criteria for classifying areas as urban areas and
cities;
(ii) establish the principles of governance and management
of urban areas;
(iii) provide for participation in the governance of urban
areas and cities by residents; and
(iv) make provisions for election of mayors, deputy mayors
and other members of the executive committees of
cities and other urban area; and
(b) may—
(i) provide for the identification of different categories of
urban areas; and
(ii) make provision for the better governance of urban areas.

Legislative authority of county assemblies
227. (1) The legislative authority of a county is vested in its county assembly.
(2) A county assembly may make any laws that are reasonably necessary
for, or incidental to, the effective exercise and performance of the
powers and functions assigned to it.
(3) A county assembly, while having due regard to the principle of the
separation of powers, has power to maintain oversight over the county
executive committee and any other executive organs established by
laws passed by the assembly.
(4) A county assembly may recommend to the regional assembly the
enactment of legislation concerning any matter that is within the
legislative competence of the regional assembly.
(5) A county assembly may receive and approve plans and policies for the
management and exploitation of the county’s resources and
development and the management of its infrastructure and institutions.

Part 4—Powers and functions of devolved governments
Powers and functions
228. (1) Except as otherwise provided by this Constitution, the powers and
functions of the national government and the devolved governments are
as set out in the Fourth Schedule.
(2) A function that is conferred on more than one level of government is a
function within the concurrent jurisdiction of each of those levels of
government.
(3) A function not assigned by this Constitution or by legislation to a region
or county is a function of the national government.
(4) Despite clause (1), and subject to this Constitution, the national
government is not precluded from legislating for the Republic on any
matter.

Transfer of powers and functions
229. (1) A power or a function of a government at one level may be transferred to
a government at another level by agreement between the two
governments if—
(a) the power or function would be more effectively exercised or
performed by the receiving government; and
(b) the transfer of the power or function is compatible with the
legislation under which it is to be exercised or performed.
(2) Where a power or function is transferred from a government at one level
to a government at another level—
(a) arrangements shall be put in place to ensure that the resources
necessary for the exercise or performance of the power or
function are accordingly transferred; and
(b) the constitutional responsibility for the exercise or performance
of the power or function shall be retained by the government to
which it is assigned by the Fourth Schedule.

Part 5—The boundaries of the devolved units
Boundaries of devolved government
230. (1) Subject to this Constitution, the boundaries of a region or county may
be altered so as to take into account—
(a) the population density and demographic trends;
(b) physical and human infrastructure;
(c) historical and cultural ties;
(d) the cost of administration;
(e) the views of the of the communities affected;
(f) the objects of devolution of government; and
(g) geographical features.
(2) The boundaries of a region or county may be altered by a resolution of
at least two-thirds of each House of Parliament passed pursuant to a
recommendation of an independent commission set up for that purpose
by Parliament.

To be continued.....
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