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1. INTRODUCTION
The Constitution of Kenya, 2010 marked a paradigm shift from a centralized governance model to a devolved system intended to bring government services closer to the people, enhance accountability, and promote citizen participation. Central to this shift was the requirement under Article 17 of the Sixth Schedule that the national government "shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved government."
More than a decade later, Kenya still retains a rebranded Provincial Administration system - now operating through Regional, County, and Sub-County Commissioners, and Chiefs - embedded within the Ministry of Interior and National Administration. This critique evaluates the extent to which the current structure complies with both the letter and spirit of the 2010 Constitution, particularly the objectives of devolution, and examines the legal, political, and practical implications of maintaining this parallel administrative apparatus.
2. HISTORICAL CONTEXT AND EVOLUTION
2.1 The Colonial and Post-Independence Provincial Administration
The Provincial Administration was born out of the British colonial policy of indirect rule and later institutionalized through successive post-independence governments. It comprised a rigid hierarchy of appointed officials - Provincial Commissioners (PCs), District Commissioners (DCs), District Officers (DOs), Chiefs, and Assistant Chiefs - serving as the eyes and arms of the executive, often exercising unchallenged authority over public administration, policing, land disputes, and civil registration.
2.2 The 2010 Constitutional Shift
The Constitution of Kenya, 2010 ushered in a devolved government system, creating 47 counties each with its own elected Governor, County Executive Committee, and County Assembly. The objects of devolution under Article 174 include promoting democratic and accountable exercise of power, enhancing service delivery, protecting minority and marginalized groups, and facilitating public participation in governance. Crucially, the Constitution envisioned a clear separation of national and county functions as listed in the Fourth Schedule.
In recognition of the persistence of the Provincial Administration, Article 17 of the Sixth Schedule provided a transitional pathway, obligating the national government to restructure the system to align it with the new devolved governance architecture.
3. Legal and Institutional Framework of the Current System
3.1 The National Government Coordination Act, 2013
Passed in response to Article 17, the National Government Coordination Act, 2013 is the primary statute anchoring the rebranded Provincial Administration. It establishes offices such as County Commissioners and Deputy County Commissioners, defines their roles, and assigns them responsibility for coordinating national government functions at county and sub-county levels.
While the Act purports to respect devolution, it effectively recasts the Provincial Administration within the executive arm of the national government. It creates a dual administrative presence in counties: one elected (county government) and one appointed (national administration), often leading to conflict, duplication, and confusion.
3.2 Executive Directives and Interior Ministry Guidelines
Successive Presidential Executive Orders (e.g., Executive Order No. 1 of 2013, 2016, and 2020) have reaffirmed the structure and command chain of national administrative officers. Chiefs and assistant chiefs, now classified as public servants, are recruited and regulated by the Public Service Commission (PSC), and deployed by the Ministry of Interior, further cementing their position as agents of the central executive.
4. Constitutional and Doctrinal Critique
4.1 Misalignment with Article 17 of the Sixth Schedule
The language of Article 17 - particularly the phrases "restructure" and "accord with and respect the system of devolved government" - implies a substantive transformation that would see the administration reoriented or subordinated to county structures. Instead, the national government has merely rebranded the system while preserving its vertical accountability to the Office of the President.
The failure to place these officers under the county governments, or to create joint service delivery frameworks, contradicts the clear constitutional intent to devolve power, responsibility, and resources. The national government’s retention of grassroots-level administrators amounts to administrative centralism cloaked in legal legitimacy.
4.2 Undermining the Objectives of Devolution
The continued presence of Regional and County Commissioners with coercive powers undermines:
Article 6(2): which declares that the two levels of government are "distinct and interdependent."
Article 174(a): which emphasizes the democratic and accountable exercise of power.
Article 189(1): which requires the two levels of government to respect each other’s functional and institutional integrity.
By retaining centralized agents within devolved spaces, the national government perpetuates a command-and-control culture, contrary to devolution’s goal of citizen-centered service delivery.
4.3 The Role of Chiefs and Assistant Chiefs
Despite their perceived grassroots utility, the continued deployment of chiefs and assistant chiefs under the national government creates administrative friction. Many are involved in functions that counties also handle - such as public health mobilization, civic registration, or dispute resolution - without formal accountability to county leadership.
While Article 186(1) and the Fourth Schedule assign public administration functions to both levels, the unilateral exercise of those functions by national officers undermines intergovernmental cooperation and risks institutional redundancy.
5. Jurisprudence and Comparative Perspectives
5.1 Supreme Court Advisory Opinion No. 2 of 2013
Although not directly on this matter, the Supreme Court held that both levels of government are “distinct but interdependent” and must be allowed to operate without undue encroachment. Applying this to Article 17, it can be inferred that embedding national officers in county spaces, exercising functions overlapping with counties, violates constitutional autonomy.
5.2 Lessons from Comparative Federal Systems
In federal and quasi-federal systems such as South Africa, Nigeria, and India, local administration is either:
Wholly devolved to subnational units, or
Jointly administered through clear cooperative governance frameworks.
Kenya’s dual-track approach - national officers in county territory with no subordination to local governments - is institutionally inefficient and politically regressive.
6. Recommendations and Way Forward
Amend the National Government Coordination Act to:
Remove county-level national officers or clearly subordinate them to county governments in non-security functions.
Establish joint intergovernmental administrative boards for security and coordination.
Gradual Transfer of Chiefs and Assistant Chiefs to county public service boards where appropriate.
Audit and realign functions at the sub-county level to avoid duplication and conflict.
Judicial interpretation of Article 17 should be sought to clarify the constitutional threshold of "restructuring" and ensure fidelity to the devolution framework.
Civic education and stakeholder dialogue to reconsider the value and relevance of inherited administrative models.
7. Conclusion
The rebranded Provincial Administration in Kenya, while operating within statutory and executive instruments, fails to satisfy the constitutional command under Article 17 of the Sixth Schedule. Instead of restructuring to respect devolution, the system has persisted as a vestige of centralized governance, undermining county autonomy, duplicating functions, and perpetuating top-down administration.
Unless corrected through legislative reform, intergovernmental cooperation, or judicial guidance, the dual administrative regime will continue to frustrate the realization of the transformative ideals of the 2010 Constitution.
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