Odhiambo & Odhiambo Advocates

Nairobi — Since Kenya began transitioning to a devolved system of government in 2013, newly formed county governments have been engaged in near-constant squabbles with the national government, threatening to undermine the devolution process.

Most of the conflicts spring from differing interpretations of the functions and powers granted to the two levels of government under Kenya's 2010 constitution, said Law Society of Kenya (LSK) chairperson Eric Mutua.

To help county assembly members increase efficiency and improve relations with their counterparts at the national level, the LSK formed a committee that will work with counties to draft legislation that is in harmony with the constitution, Mutua said.

The LSK Devolution Legislation Committee, inaugurated November 3rd, comprises 11 national government representatives from the former provinces and 89 lawyers representing all 47 counties.

"These members were selected from a group of lawyers who showed interest in working with county assemblies on pro-bono terms so that they can help them in crafting laws and address legal challenges that counties might face, with a view of reducing rivalry on interpretation of the law between the national and county governments," Mutua told Sabahi.

Many counties have been passing poor quality legislation which is affecting their performance, said committee chairperson David Mereka, who heads a law firm in Nairobi.

"Some counties just cut and paste clauses of laws from other counties and turn them into bills, passing them without making even a single amendment," he told Sabahi.

For example, he said, legislation related to burial costs that contained clauses copied from a Nairobi County bill passed in Nakuru County, even though the county clearly could not command the same rates.

The language of bills that are passed is often below par, he added, noting that most counties have not passed many laws other than budget related legislation.

Legal training and assistance:

"One of LSK's objectives is to protect and assist the public in Kenya in all matters touching or related to law," Mereka said. "This is the reason we have decided to intervene. We will co-ordinate and streamline legislative drafting at the county government [level] as well as offer training to county attorneys in order for them to have the necessary legal skills."

"The committee aims to support county governments in making laws that are in line with the constitution and that promote public participation," he said, adding that many counties have passed laws without public participation and support.

As part of its mandate, the committee also will help to mediate and track co-operation between the national and county governments.

"The committee is tasked to advise governments [at both levels] on legislative and policy matters relating to the transfer of functions between the national and county governments as well as point out lacuna in the devolution system with respect to [writing] legislation," he said.

Even though security falls under the purview of the national government, the committee will propose legislation that seeks to establish an enforcement arm at the county level in order to deal with local security threats, Mereka said.

"It is hoped that a properly developed legislative system will result in stability, development, security, prosperity and accountability in the devolution process," he added.

Preventing legislative failures:

The new committee will help to address the teething problems that have beset counties when writing laws, said lawyer Gad Awuondo Otieno, who serves as a legislative adviser for Nairobi County Assembly.

"The drafting of laws is a specialised area and most counties have been lacking experts in this field that ensure they are coming up with laws that meet the threshold for implementation," he told Sabahi. "Some [county laws] have been outright unconstitutional."

Legislative failures at the county level include the imposition of duplicate taxes which are already paid to the national government, Otieno said, adding that the committee can help facilitate a better understanding of the responsibilities of each level of government so jurisdictions are respected.

"For instance, all counties made laws to govern the licensing of betting and gaming industries in their respective counties, but the national government has since refused to cede the control of the gaming [industry]," he said.

"This has been a cause of major conflict between the national and county governments and we hope that this will be addressed through the committee."

Harmonising, Professionalising Law-Making:

Another area of contention has been the imposition of levies and fees on trucks carrying cargo between counties, said Kenya Maritime Authority Director General Nancy Karigithu.

"Sixteen counties [with partial jurisdiction over] Mombasa-Nairobi and Nairobi-Busia highways were planning to introduce levies on all cargo passing [through] their territories and every county was coming up with its own rate without consulting or looking at its impact," she told Sabahi.

"We hope the committee will bring in moderation and also make sure that laws on levies are harmonised so as they do not have a negative impact on cost of doing business," she said.

For his part, Nairobi County Assembly minority whip Hashim Kamau also welcomed the formation of the committee and the work it will undertake.

"It is a welcome move that will not only professionalise law-making but also make sure that we do not have laws that pit counties against each other, for instance laws that subject cross-county businesses to double taxation," he told Sabahi.

Many counties initially lacked experts in their assemblies to guide their respective legislative agendas, he said.

"Luckily for Nairobi we have not had those troubles, but we hope with the setting in of the committee members we will be able to better our functions," he said.

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