Reassignment of devolution duties exposes gaps in Deputy President’s office, expert says

The reassignment of some duties relating to devolution and intergovernmental affairs from the Office of the Deputy President to the Office of the Prime Cabinet Secretary is an administrative correction aimed at addressing legal and operational gaps ,  governance expert has said.

Devolution, governance and intergovernmental affairs expert John Burugu said the move should not be interpreted as a political setback for Deputy President Kithure Kindiki, arguing that the changes were necessary to ensure statutory responsibilities are handled by an office with the appropriate legal mandate.

Burugu said the reassignment was prompted by the absence of a substantive Cabinet Secretary for Devolution, a position he argues has created challenges in the management of intergovernmental affairs.

“The summation of the action by the Head of Public Service is therefore a mere correction of the failure by the current administration to have a Cabinet Secretary for Devolution,” Burugu said.

He argued that certain responsibilities cannot be effectively discharged through an Executive Order assigning functions to the Deputy President because some statutory duties require a Cabinet Secretary who can introduce Bills, develop regulations, respond to parliamentary questions and prepare memoranda for Cabinet consideration.

According to Burugu, the current arrangement placed intergovernmental relations in a difficult position by assigning additional statutory responsibilities to an office whose primary constitutional mandate is that of the President’s principal assistant.

“What has been obtaining through Executive Order No. 1 of 2022 has been a misnomer, legally, couched in the narrative of enhancing duties of the Deputy President, that essentially placed Intergovernmental Relations in a hamstrung situation,” he said.

The debate comes as Kenya continues to deepen its devolved system of government, which was established under the 2010 Constitution and became operational in 2013.

 Burugu noted that the country is now in its third cycle of devolved governance, with the 47 counties playing a central role in delivering services and implementing development programmes in sectors including health, agriculture, livestock, education, roads and environmental protection.

He said the country had over the years established institutions and legal frameworks to support cooperation between the national and county governments, including the Council of Governors, the Intergovernmental Relations Technical Committee and the Intergovernmental Budget and Economic Council (IBEC).

Under the administration of President William Ruto, coordination of intergovernmental affairs was assigned to the Office of the Deputy President through Executive Order No. 1 of 2022.

Burugu said the arrangement, however, created questions over who should undertake statutory responsibilities relating to devolution, particularly where the law specifically requires action by a Cabinet Secretary.

He cited concerns raised by the Senate Committee on Devolved Affairs over the Intergovernmental Relations (Amendment) Bill 2024, arguing that the Deputy President could not perform certain functions reserved by law for a Cabinet Secretary.

“The Senate Committee on Devolved Affairs observed as much by demanding the Intergovernmental Relations (Amendment) Bill 2024 be channelled to the Senate by the designated Cabinet Secretary for Devolution,” he said.

Burugu, however, maintained that the reassignment of duties should not affect the Deputy President’s role as chairman of IBEC.

He said Section 187(1)(a) of the Public Finance Management Act provides that the Deputy President shall chair the council, a responsibility previously held by President Ruto when he served as Deputy President and later by former Deputy President Rigathi Gachagua.

“It is expected that legal provision under PFM would prevail and allow Prof Kithure Kindiki to continue chairing this fiscal intergovernmental structure,” Burugu said.

He added that the Deputy President’s role as IBEC chairman could only be altered through an amendment to the relevant provision of the Public Finance Management Act.

 Burugu said the latest changes should therefore be viewed as an effort to streamline government operations rather than as a political contest over the powers of the Deputy President.

“The perceived loss, politically, by the Deputy President is misplaced because it is a move to correct a mistake by the same administration aimed at easing operational and administrative hiccups,” he said.

He warned that future assignments involving statutory and administrative responsibilities may require a clearer institutional framework, including consideration of a substantive Cabinet Secretary responsible for devolution and intergovernmental affairs.

“Executive Order assignment is clearly not legally, administratively and operationally sufficient in facilitating delivery of services to Kenyans in this instance,” Burugu said.