THE KENYA DEVOLUTION CSOS WORKING GROUP (KDCWG) CALLS FOR AN END TO BUDGETED CORRUPTION WHILE ADVOCATING FOR THE TRANSFER OF DEVOLVED FUNCTIONS

By Elijah Odanga

Kenya's recent greylisting by the Financial Action Task Force (FATF) due to deficiencies in combating money laundering and terrorist financing highlights the seriousness of the corruption crisis and its impact on the country's economic and social development. This greylisting has significant implications for international trade, investment, and economic growth.

This has further compounded the challenges devolution in Kenya continues to face. We have witnessed the escalating trend of "budgeted corruption" within both levels of government. This insidious practice, where funds allocated for public services are siphoned off through inflated contracts, ghost projects, and outright theft, is crippling service delivery and undermining the very essence of devolution.

The devastating consequences of this rampant corruption are all too clear. Roads remain impassable, healthcare facilities lack essential equipment and medication, and schools operate without adequate resources. These failures are not merely logistical oversights; they result from misappropriating public funds intended to improve our communities' social and economic welfare.

Transfer of devolved functions

However, budgeted corruption is not the only challenge curtailing the advancement of social-economic rights. The failure of the national government to transfer functions to county governments and the unwillingness of the National Treasury to fund them are killing the essence of devolution. 

We are concerned that President William Ruto's past commitments during his swearing-in in September 2022 and August 2023 during the devolution conference to have these functions transferred have yet to be fulfilled. We look forward to completing this process within 30 days – with counties also getting the attendant resources – to enable devolved units to function optimally in delivering their constitutional mandate.

On the other hand, county governments must focus on their constitutional functions and immediately stop spending on national government mandates while compromising the quality of devolved services. Furthermore, counties must remove MCAs from implementing development projects and eliminate unconstitutional funds like Ward Development Funds.

Likewise, the national government must respect the principle of devolution and cease engaging in functions that have already been devolved. Currently, the national government continues to invest in rural roads and primary healthcare, both of which fall under county jurisdiction. This duplication of responsibilities results in inefficient resource allocation and hampers service delivery at the county level. We call for a clear delineation of functions to prevent redundancy and ensure effective governance.

The National Treasury must ensure timely disbursement of the equitable share of nationally raised revenue to county governments as stipulated in the Public Finance Management Act without failing to avoid the disruption of service delivery.

Consequently, the National Assembly must expedite the approval of the most recent audited accounts to inform the baseline for the division of revenue process, which approved reports must be no less than two years later.

For all these to work, there must be cooperation, coordination and consultations between the national and county governments. This can be achieved through operationalization, strengthening, and adequate financing of the intergovernmental structures and forums.

Misuse of public resources 

Fighting budgeted corruption and transferring devolved functions is not an end in itself. The national and county governments must take decisive action to curb the misuse of public resources by ensuring the timely publication of budget implementation reports, as stipulated in the Constitution of Kenya, the Public Finance Management Act 2012, and the Access to Information Act 2016. Strict penalties must be enforced for non-compliance with these standards.

Still, to combat corruption effectively, we demand the expeditious prosecution of all corruption-related cases by the Ethics and Anti-Corruption Commission (EACC) and the Office of the Director of Public Prosecutions (ODPP). These agencies must act impartially and expedite cases against all individuals implicated in corruption, irrespective of their political affiliations. Additionally, the full implementation of recommendations from the Auditor General’s reports for county governments and national government ministries, departments, and agencies is crucial to restoring accountability in public service.

We express deep concern over the perceived selective nature of investigations and prosecutions by the EACC and the Kenya National Audit Office (KENAO). Reports suggest that certain counties are shielded from scrutiny, creating a perception of selective justice that undermines public trust and weakens anti-corruption efforts. To address these concerns, we recommend granting the EACC prosecutorial powers and strengthening collaboration between EACC, KENAO, and civil society organizations to enhance citizen oversight and forensic audits.

Any individual serving in public office who does not meet the ethical standards outlined in Chapter Six of the Constitution of Kenya should be immediately relieved of their duties and subjected to investigation. Furthermore, all public institutions responsible for enforcing accountability and justice—including the EACC, the judiciary, the Auditor General’s Office, the Office of the Controller of Budget, the Kenya National Commission on Human Rights (KNCHR), the Commission on Administrative Justice (CAJ), and the National Gender and Equality Commission (NGEC)—must be adequately funded and strengthened to ensure optimal performance.

Governors and Speakers of county assemblies must be held accountable for poor governance, including financial mismanagement, delays in settling pending bills that negatively impact citizens' livelihoods, and failure to adhere to constitutional provisions on public service recruitment. Additionally, we demand the immediate publication of the national debt register for public scrutiny. The national debt must be audited, and those found responsible for mismanagement must face prosecution without exception.

Public participation

Public participation remains a cornerstone of democracy, and we demand the passage of national policies and laws on public participation and civic education as a priority. Adequate resources must be allocated and ring-fenced for these activities at national and county levels to ensure meaningful and uniform engagement across the country.

Both levels of government must rationalize recurrent and development expenditures to enhance service delivery. The national wage bill must be maintained below 35 percent of annual revenue, as stipulated in the Public Finance Management Act 2012 and related regulations. We strongly oppose county officials' continued waste of public funds on unnecessary foreign trips, which place an undue burden on taxpayers and divert resources from essential services.

Abolish NG-CDF and NGAAF

We urge MPs and MCAs to strictly adhere to their constitutional roles of legislation, oversight, and representation. Additionally, unconstitutional funds such as the National Government Affirmative Action Fund (NGAAF) and the National Government Constituency Development Fund (NG-CDF) must be abolished immediately. These resources should be redirected to county governments to improve service delivery and strengthen devolution.

Protect civic space and right to dissent

We are deeply concerned about the shrinking civic space in Kenya at the national and county levels. Reports of intimidation and harassment targeting citizens and civil society organizations that speak out against corruption are alarming. The alleged involvement of gangs linked to county officials and national government representatives in silencing dissent is a grave violation of democratic principles. Such actions create a climate of fear that stifles accountability and undermines the rule of law. We demand immediate action to protect civic freedoms and hold those responsible for intimidation accountable.

We urge the Kenyan government to take immediate and decisive steps to address these critical issues. Accountability, transparency, and adherence to the rule of law are non-negotiable principles in ensuring a just and equitable society. We must achieve responsible governance and will continue to advocate for policies that safeguard the interests of all Kenyans.