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"id": 263579,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/263579/?format=api",
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"type": "speech",
"speaker_name": "Mr. Mudavadi",
"speaker_title": "The Deputy Prime Minister and Minister for Local Government",
"speaker": {
"id": 84,
"legal_name": "Wycliffe Musalia Mudavadi",
"slug": "musalia-mudavadi"
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"content": "Speaker, Sir, as hon. Members look at what is expected in terms of the functions, criteria and even the phases that we have to go through, which are part of the Schedule to this Bill, they will realise that it is a highly technical Authority and, therefore, it will require a lot of expertise from different areas. Article 23 says that the Authority shall identify its functions which may be transferred to the County Governments immediately after the first elections under the Constitution. Mr. Temporary Deputy Speaker, Sir, after the first elections, it is clear that County Governments will have been put in place. However, their capacities in terms of human resource and technical capacity could be varied in different areas. So, this authority will have to undertake preparations to be able to come out and explain that certain counties are ready immediately after the election to continue with certain functions, but others may have to be prepared appropriately as they move along. It cannot be a free for all. There could be some serious disparities and that can generate disillusionment at the very outset in terms of the implementation of devolution. After that, we move on to Article 24 on page 130. This is the criteria that will be used for the transfer of functions. Again, I would like to urge hon. Members to look at this very carefully. If a county government does meet this criteria, it could definitely delay the adoption of certain functions in that given area. Issues like whether there is existence of legislation relating to that particular function that is applied for, whether the framework for service delivery has been put in place to implement the function, the aspects that would require to show that the financial systems and all that is necessary have been put in place. So, there is some criteria there. It is not exhaustive because it says this function shall include--- Which means there could be broader and the authority can look at what additional issues may be necessary to facilitate the transfer. Part 4 is on progress and annual report. I was talking to one of our hon. Members earlier in the morning and under Article 25 because this is something that needs to be monitored very closely it says:- “The Authority shall in every three months submit a progress report to the President, Parliament, the Commission for Implementation of the Constitution and the Commission on Revenue Allocation. The progress report shall include status on transfer of functions to county governments, any impediments to the transition programme, recommendation to address specific concerns identified by the authority and any other information of concern relating to the functions of the authority. The authority shall publish its progress report in the gazette and in such other accessible manner as it may determine.” Mr. Temporary Deputy Speaker, Sir, I am reading this because this authority is not an authority that operates in a vacuum. It has to be monitored by Parliament. Parliament is the one that will have to eventually know whether they are fulfilling their mandate or not. The only way to do so, is to have regular reports because it is a transition period of only three years. So, they must be put on their toes to show progress and if there is no progress, they must explain why. That is why this particular clause is extremely important because then it provides for serious mechanisms of accountability on the part of the authority. So, these are not people who will be sleeping in a bed of roses. They are people who will have to work extremely hard with very tight timelines. Those timelines will have to be monitored by Parliament, the Commission of Revenue Allocation and the Commission for Constitution Implementation because their work will have implications on the budgetary process, resource arrangement and so forth. So, it is a very serious undertaking. Under Article 26, it will also cause the annual report to be prepared and submitted to Parliament. Under Clause 27, any person may also request the authority for any information relating to its functions. This again is in conformity with Article 35 of the Constitution where the citizens have the right to information. So, these people when undertaking their tasks they must be alive to the fact that the public can demand or request for any information to show the progress that they are undertaking. Part 5 deals with the financial provisions. These are really standards provisions that go with any authority that is established by this House. So, these are not going to be very different. Indeed, they are not any different from the financial provisions of other authorities that Parliament has established. Therefore, I need not dwell too much on that. I would therefore, want to move straightaway to the Miscellaneous Provisions under Part 6. Here looking at Article 33 there is the duty of every officer to co-operate with this institution. We are recommending this provision because we do not want any public officer or any State organ that will be involved in the process of either transition and so forth delaying the process for reasons that may be selfish. Therefore, there will be an obligation to co-operate. This is to compel people to ensure that whatever is required by this authority, they make it available so that the transition process can be undertaken. Under Article 34, there are penalties for those who may want to offend this Act. It comes out very clearly that there could be a fine of up to Kshs500,000 or to imprisonment for a term not exceeding two years, or to both. This is useful because when you are dealing with transition here there are going to be audit reports, assets, people will have to produce a register of assets, others may want to play around with those assets and so forth. So, we are making it very clear that upon discovery that you have tried to mislead or conceal information then the penalty is quite harsh and it will definitely land people into serious trouble. So, I would like hon. Members to look at that. There is Article 35 for dispute resolution. Here we say that where there is a dispute this can also be undertaken in the law relating to inter-governmental relations which hon. Members debated on earlier today. Clause 36 is also very important because it puts a moratorium on the transfer of assets. It says that a State organ, public office, public entity or local authority shall not transfer assets and liabilities during the transition period. This is very important because during that period of transition that is where there could be window for people to play around with the assets, either of the national Government or even the assets of the local authorities as they migrate into the County Government. So, we are making it clear that it will be illegal and we also phase out what procedure and what is the exception. That comes under 36(2). If at all there is going to be a transfer maybe for the public good or an asset is being set aside for a hospital or for a university or school, then the procedure is also very clear as to what approvals and stages it has to go through before that is done. Under article 36(3), the authority may also on its own motion, or upon a petition by any person, review or reverse any irregular transfer of assets or liabilities in contravention to sub-section 1. Mr. Temporary Deputy Speaker, Sir, this is also important because in case something has slipped through and there is sufficient evidence to show that the transfer ought not to have taken place, this Authority can take corrective measures during that period. Clause 37 deals with regulations. Clause 38 is on the dissolution of this Authority. Members will recall that this is a transitional Authority and the transition period is envisaged as a three year period. We are saying that the Authority shall stand dissolved three years after the first General Elections under the Constitution or upon the full transition to full county governments whichever is earlier. However, the National Assembly, may by resolution, extend the period specified in this subsection for a further period on exceeding one year. Mr. Temporary Deputy Speaker, Sir, this is clear. This is not supposed to be a permanent entity. It has a specific mandate. If that mandate has not been completed, the maximum they can get of additional time is one year but only by resolution of Parliament. At the same time, that clause then provides for what happens to the assets upon dissolution of the Authority and the preservation of records that they will be having because as Members will recall, once this Authority has expired, the Inter-Governmental Relations Summit and the secretariat that is set up there would then take up any subsequent functions that this Authority would require. Apart from what is spelt out, the rationale here is that under the Inter-Governmental Relations, the new county governments will be having teething problems initially. They will not be able to focus in detail on aspects of transition. You need a body that will dedicate itself to really preparing the transition process; the details that would be required because the Governor will be busy consolidating himself, trying to get his assembly to function smoothly, trying to recruit staff in other areas and, therefore, he will not have the time to focus fully on matters of this nature. That is why we are saying, a specialized body to cover that area would be very important. On page 139, we have the procedure for the appointment of members of the Authority. Members can look at that and see whether we can improve on it. The Second Schedule deals with the procedure for the conduct of affairs of the Authority. The Third Schedule deals with the oath and affirmation of the office of the Chairperson and members and the secretary. Then we have the Fourth Schedule on page 144 which deals with the transition phases. These are very detailed aspects or activities that must be covered by this Authority. Again, I invite Members to look at this very carefully. There is the phase I and phase II which is a very detailed account of some of the activities that must be undertaken. Mr. Temporary Deputy Speaker, Sir, in reality, I wish to state that we are actually behind schedule, in my view. This Authority should have been in place to start preparing profiles of counties, dealing with the assets and liabilities, working out on what kind of civic education programmes will be required and so forth. They should be looking at the capacity of the county governments and even at the National Government where there are shortfalls. Therefore, we are late bearing in mind that if the elections are held in December, the county governments should be in place by January. The Governors will need to have some help because as they move in how are they moving in, where are they moving in, how are they setting up? This Transitional Authority is supposed to think through all these processes so that there is a sinless movement of the Governor and the new entities as they transit into the devolved government. It is a very serious exercise in my view. I would really plead with hon. Members that as they polish this Bill, they should bear in mind that we will need to have this Authority in place very urgently. Even if we look at the process that the Minister for Finance and the Parliamentary Departmental Committee on Budget will be working through, we need to have this Authority in place for them to even give some projections that will be necessary to allow a fairly accurate determination of what should be put in the budget for purposes of facilitating the county governments. We should not leave that as a vacuum. We need to know the kind of human resource that will be required and so forth. So this Authority has got a mammoth task in my opinion and I would like to urge Members to support this Bill so that we can be able to get going on aspects of devolution. I beg to move. I would like to request Mr. Nanok to come forward and second."
}