Transition Authority

1. Transition Authority Role of TA in functions analysis and transfer Presented to the Kenya Forest Working Group By Safia Abdi Member

2. Outline of presentation • Objects of devolution • Functions of TA • Functions of county Government in relation to forest. • Functions analysis and transfer process • Challenges • Conclusion

3. Objectives of devolution • Article 174 of CoK 2010 provides the objectives of devolution. In summary, they include: • To promote democratic governance and accountable exercise of power. • To foster national unity by recognizing diversity. • for self governance and the participation of the people in decision making on matters that affects them including development. • to protect interests and rights of marginalized groups. • to promote social and economic development and bring services closer to the people. • to ensure equitable sharing of resources • to enhance checks and balances and separation of powers.

4. Who is TA • Established pursuant to Section 4(1) of the Transition to Devolved Government Act 2012. • Statutory body with a constitutional mandate offacilitating and coordinating the transition to the devolved system of government in Kenya pursuant to the provisions of the Transition to Devolved Government Act 2012 and Section 15 of the Sixth Schedule to the Constitution of Kenya 2010 • Has 17 members- two of which are ex-official

5. Functions of TA • Facilitate the analysis and the phased transfer of the functions to the national and county governments as provided under the Fourth Schedule to the constitution.; • Determine the resource requirements for each of the functions; • Develop a framework for the comprehensive and effective transfer of functions; • Establish the status of ongoing reform processes, develop programmes and projects and make recommendations on the co-ordinated management, reallocation or transfer to either level of government during the transition period;

6. Functions of TA • Prepare and validate an inventory of all the existing assets and liabilities of government, other public entities and local authorities; • Provide mechanisms and make recommendations for the effective management and transfer of assets to national and county governments. • Carry out an audit of the existing human resource of the Government and local authorities; • Advise on the effective and efficient rationalization and deployment of the human resource to either level of government; • Assess the capacity needs of national and county governments; • Co-ordinate and facilitate provision of capacity building measures to national and county governments to enable them to govern and provide services effectively; • Provide guidelines on preparation of Transition Implementation Programme (TIP) to state organs and county Government

7. Functions of CG related to forest Schedule 4 to the COK 2010 provides all the functions of the national and county Government. 10. Implementation of specific national government policies on natural • resources and environmental conservation, including: • soil and water conservation; and • forestry.

8. Functional analysis and transfer process Constitutional and legal provisions • Article 186 states that functions and powers of the national and county governments are as set out in the Fourth Schedule. • The Fourth Schedule lists specific functions allocated to each level of government. • However the listing is done in general terms and there is need to unbundle the functions (to determine the various components whose totality compose the function) for clarity and to facilitate transfer of functions from national to county governments.

9. Const. and legal provisions • This is also important due the principle of resources following Functions • Section 15 (2b) of Sixth Schedule requires establish ment of criteria that must be met before particular functions are devolved to county governments to ensure that those governments are not given functions which they cannot perform. • Sixth Schedule 15 (2c) permits the phased and asymmetrical devolution of functions to ensure that functions are devolved promptly to counties that have the capacity to perform them but that no county is given functions it cannot perform

10. Legal provisions • TDGA- Function of TA • Facilitate the analysis and the phased transfer of the functions to the national and county governments as provided under the Fourth Schedule to the constitution.; • Determine the resource requirements for each of the functions; • Develop a framework for the comprehensive and effective transfer of functions; • Initial Gazettement and phased transfer of functions TDGA 2012, [23(1)] as well as 24 (1)(a-i) which addresses criteria for the transfer of functions.

11. Framework for function analysis • Constitutionality • Where it has been clearly assigned in the 4th Schedule • Subsidiarity: • Where a public service is assigned to the lowest level of government capable of delivering it. Subsidiarity demands that functions be assigned to that level of government that would best perform them. • Aligning capital and recurrent expenditures: • Where one level of government is responsible for both asset creation and operational costs

12. Framework contd Economies of Scale: • Where there are savings to be realized in having a larger unit deliver the service Spillovers: Where a service provides benefits or costs in more than one county Policy and implementation: national government to provide policy guidance and county government to implementation

13. Decisions are made on function assignment Function analysis is a policy dialogue and not a one time activity Function Assignment Dialogue Diagnostic exercises and status reports Learning and sharing activities More discussion to gain consensus on function assignment Increasing degree of consensus, readiness and certainty Consultations with stakeholders Internal government discussions Implementation piloting to test function assignment arrangements in practice Monitoring and Evaluation

14. Transition Authority Oversees and Coordinates the Process

15. These functions have different assignments according to the Constitution

16. Unbundling ensures clarity of functions and costing UNBUNDLING

17. Functions analysis also entails • HR audit • Assets and liabilities audit. • Development of norms and standards. • Development of policies and laws to align it to the COK 2010. • Development of new organizational structure.

18. CREATION OF FACTs (1) • Creation of Function Assignment and Competency Teams(FACTs) to carryout the detailed task of function assignment at Ministerial level: • Unbundling and definition of Functions • Facilitating development and review of policy papers on functional assignment. • Developing of the Transition Implementation Plans(TIPs) • Identification of preparatory work for transfer of functions • Estimation of the tentative cost to deliver the functions (among others)

19. Membership of the FACTs (2) • Line ministries and central ministries (technical staff, economists finance officers) • Private sectors • Non state sectors • Development Partners • The FACTs will be aligned to the MTEF Sectors • The sector FACTs will choose the chairperson under the direction of TA

20. CREATION OF FAST • Function Analysis Steering Team(FAST) to ensure all proposals are integrated and harmonized • Receive submissions from the FACTs • Review the proposed assignment of functions • Check validity against given guidelines • Conduct the public Hearings (if need be) • Submit the proposed function assignment to the Transition Authority

21. PROGRESS SO FAR • Engaged various stakeholders through workshops particularly MDA’s, National Assembly, CRA, CIC and Civil Society Organizations (CSO’s) on FACA process • Gazettement of initial functions on 1st February, 2013 through Kenya Gazette: Special Issue No. 10, Legal Notice No. 16. pages 56 – 58. • Identification of additional functions for Counties to apply and implement from 1st July 2013. • Development of criteria an procedures for uptake of additional functions for the County Governments during the Second Phase of the Transition Period • Engaging line Ministries to assist the 2013/14 budget for County Governments by preparing drafts for Counties to consider (deadline was yesterday – 2nd April 2013).

22. Challenges • Slow response from MDA’s with regards to information to facilitate TA role. • Slow preparation of Transition and Implementation Plans (TIPS) by MDA’s (no prior experience) • MDAs difficulty in “letting go” certain functions (policy papers) • Dearth of credible data to guide costing of functions • Inadequate time to carry out the Authority’s mandate during Phase One • Inadequate funding to execute the Authority’s mandate • High expectation of both the elected members as well as the General public • Highly politicized process that needs careful navigation

23. Intergovernmental Relations • Intergovernmental relations Act 2012 provides mechanisms for management of relations include conflict , between county and national Government. • They include • National and county Government Coordinating summit. • Intergovernmental relation technical committee. • Secretariat • Council og governors. • Joint committees. • Intergovernmental budget and economic council.

24. Opportunities for engagement • Be part of FAST to help in unbundling of functions. • Participate in citizen forum/platforms • Facilitate public education • Participate in policy and legislation making process.

25. Thank you.