Government Structure of Kenya under Constitution 2010

It’s the Executive, Legislature and Judiciary. That is the answer readily given to the question - ‘What are the [three] arms of government?’ The concept has been entrenched in our thinking that we never interrogate it even when our Constitutions undergoes changes.

The answer also seems standard across many countries -as can be deduced from Google Search responses. The traditional concept is heavily revolves around laws. Their making, their enforcing, and their interpretation, but is governance just about law?

The current situation allows us to appreciate the separation of responsibilities among the branches of government differently. The concept seems to emphasise policy. We have policymaking, policy implementing; and additionally, mediation and moderation. The separation of responsibilities is shared out among the National Government as the policy makers, County Government as the policy implementer, and State Organs as the mediators and moderators.

Unlike commonly thought, the government structure of Kenya under Constitution 2010 is complex. Management books would call it Matrix Organizational Structures and everyone seems to fear drawing it because it elucidates realities that some actors would prefer was left undisclosed. The highly textual nature of our laws does disservice to many of its users since most remain reeling in confusion not knowing exactly what lies where.

Some departments are wrongfully performing others’ functions based on the understanding of the old order. In the earlier days there was a tough tussle between the ministry of lands and the national land commission as to who was to do what. Furthermore, there are still numerous instances of duplication of projects by national government and county government.

The remedy for this is in producing a pictorial or a chart to complement the information. Perhaps in recognition that visuals are at times indispensable in removing indistinctness; in the second schedule, the constitution presents designs of the National flag, Coat of Arms and Public Seal to eliminate any fuzziness.

However, there will always be need for more illustrations (as one below) in the document (either in the body or in the schedules) to enhance clarity despite the standard drafting practice trusting otherwise. In this endeavour, the chart of Kenya’s government structures below seeks to illustrate, summarise and explain separation and sharing of authority and responsibilities among all organs of government.

The chart has two main benefits.  (1) It removes misconceptions and (2) It uncovers inconsistencies or contradictions in the document. The adage that an illustration saves many words is again proven here. This can also help inform on appraising merits of the matrix structure as opposed to hierarchical one. And, borrowing from Management discipline, appreciate that some of problems are inherent in the structure such as increased organisational complexity, members playing bosses against one another, increased overhead costs, and requirement for high degree of cooperation among functions.

The merits of the structure is that it allows rapid infusions of technological know-how and efficient processing of very large amounts of information and respond quickly to interdisciplinary needs. Further it provides opportunities for integrating collective goals and objectives, developing team spirit and high morale, opportunities to train personnel to become leaders, and remarkably allowing clear articulation of purpose.

The chart of Kenya’s government above removes two common misconceptions

1. The three main arms (branches) of government are Executive, Legislature and Judiciary. Whereas, these arms exist and play fundamental roles, they are not the hubs of responsibility as captured in architecture of the 2010document. It openly distributes responsibility between national and county governments. However, it creates an ambiguity in Article 186 (3) when it additionally states:  A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.

The statement disremembers (or sidelines) the reality of existence of the intergovernmental state organs. Some people misuse this slip to assign the national government extra responsibilities with the justification that -since it’s not a county function, it’s thus a national government’s responsibility.

 2. The Presidency and National Parliament belongs in the national government. Most of the confusion comes about because they are located in Nairobi and general assumption is that public agencies headquartered in the capital city fall under the national government. The President is split into being (as provided by article 131 (1 a)) the Head of State [an intergovernmental office] and [head of national] Government.

In fact, in actual practice, it’s the being head of State, which falls under the intergovernmental state organs, that gives the president clout over the county governors. The governors rightfully know this, and persistently make references to Kenya’s 48 governments. The thinking that the government (national) that the president heads is superior or is on a higher level is a misconstruction.

This misreading is demonstrated in the attempts to subordinate the county governments through establishing a ministry of devolution in the national government to coordinate relationship between the two governments.

Hopefully, this chart will be accepted and adopted country-wide to foster civic awareness and education at all levels.

Edwin Libasya Musonye

Technical Communications