A.1 Functions and responsibilities

TABLE A.1 Functions and responsibilities

Review functional assignments. Clarify service delivery responsibilities of various tiers of government so that funding can follow responsibilities.

KEY ISSUES AND CHALLENGES CONSIDERATIONS POLICY OPTIONS

While Schedule 4 of the Constitution provides overall normative guidance on the two-tiered distribution of service-delivery responsibilities, in practice there remain ambiguities, overlaps, and contestation over the role of national and county government in some service-delivery functions. There continue to be areas where responsibility for service delivery between national and county governments is not aligned with the constitutional mandates, or where responsibilities are unclear, or disputed. This risks duplication or service-delivery “vacuums,” which may arise when neither national government nor counties assume responsibility for a function for which responsibility is mistakenly assumed to lie elsewhere. It can also lead to conflict between the two tiers of government. Examples of disputes or lack of clarity over functions: Water: In the water sector, county governments have taken ownership of urban water companies, however, responsibility for the urban water infrastructure investment remains disputed. The 2016 Water Act made this the responsibility of national waterworks development agencies, but counties are challenging the constitutionality of this act in the courts.

Education: It is not clear who is responsible for training teachers with respect to competence-based curricula.

Examples of where financing is not aligned with functional responsibilities:

Health: Under the Managed Equipment Scheme, the national government continues to make substantial investments in medical equipment for the counties, and over which counties have little control. Functional roles and responsibilities in service delivery and associated arrangements for management and financing need to be jointly agreed by national and county governments through consultative processes. Identify cases where (1) there is a lack of clarity of responsibility (for example, agricultural inputs) and (2) funds are not following functions (for example, in water, agriculture) and focus on resolving those.

Clarify and codify functional responsibilities between counties and national government. Ideally this should be done through intergovernmental forums (see the recommendations on intergovernmental coordination) and endorsed by high-level authorities. Ambiguities, inconsistencies, and disputes over functional assignments should be addressed. This is important to ensure that accountability is clear, to reduce duplication and inefficiency, and to empower the level of government designated as being responsible.

The national government and county governments need to work together on drawing up sector service-delivery frameworks to clarify roles and responsibilities, mechanisms for financing service delivery, county management of service delivery (PFM, HR, M&E), and identify joint actions to deal with service delivery issues. They should both set out the key responsibilities of each level, but also highlight the key challenges to improving service delivery. The aim would be to envisage these as joint challenges and identify the joint actions needed to address them. These frameworks should also identify if there is an appropriate role for conditional grants in the sector, and which policy function these might fulfil. Lead: IGRTC Intergovernmental forums Next 12 months

IMPLEMENTATION RESPONSIBILITIES TIME FRAME

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TABLE A.1, continued Review functional assignments. Clarify service delivery responsibilities of various tiers of government so that funding can follow responsibilities.

KEY ISSUES AND CHALLENGES CONSIDERATIONS POLICY OPTIONS

Urban: In the urban development sector (infrastructure, housing, and so on), the national government mandate is to provide policy direction and coordination. National government agencies continue to directly undertake projects in urban areas, both nationally and donor financed (for example, the Kenya Slum Upgrading Program, Kenya Informal Settlements Improvement Project, and Nairobi Metropolitan Services Project). Particular recommendations:

The urban water and sanitation sector probably requires a major revision of the institutional framework. This issue may need to be dealt with directly by the Summit rather than by the sectoral forum.

Policy and regulatory functions are often poorly implemented Devolution has assigned policy and regulatory functions to the national government. These are important in terms of (1) ensuring that service delivery is consistent with citizens’ constitutional rights; (2) ensuring that service delivery is guided by minimum standards and norms; and (3) ensuring that county “externalities” are managed. National MDAs are not finding it easy to fulfill their policy and regulatory mandates. They are accustomed to operating as command-and-control line ministries, with vertical assertions of policy and standards, rather than as national custodians who need to “negotiate” policy implementation and regulation with semi-autonomous county governments. These weaknesses in policy and regulatory functions apply to a range of sectors (ECDE, health, agriculture). Whether by constitutional design or because of institutional inertia, the national government continues to retain considerable responsibilities for the delivery of infrastructure and frontline services. It is unclear whether this is effective, efficient, or equitable. National MDAs should strengthen their capacity to undertake “policy and regulatory” functions.

National government “policy and regulatory” functions must become more effective through intergovernmental mechanisms National MDAs should ensure they have the organizational capacity to - Monitor, analyze, and publicize county performance and adherence to national policies; - Revise policies in light of this; and - Analyze when a conditional grant might be an appropriate policy response and be able to design this. This will require learning from counterparts in other highly devolved or federal states and being exposed to training. (See the recommendations on intergovernmental coordination.)

Expand county functional responsibilities for service delivery and limit national responsibilities.

IMPLEMENTATION RESPONSIBILITIES TIME FRAME

Lead: National ministries

Involved: Sector ministries Intergovernmental forums Next 3 years

Lead: Intergovernmental forums

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TABLE A.1, continued Review functional assignments. Clarify service delivery responsibilities of various tiers of government so that funding can follow responsibilities.

KEY ISSUES AND CHALLENGES CONSIDERATIONS POLICY OPTIONS

Examples: - Most education sector functions and subfunctions - Rural, feeder, and urban roads In a short time, county governments have shown themselves capable of delivering a wide range of public goods and services. Although county performance has been far from perfect or ideal, subnational service delivery has not collapsed and, in many cases, has been improved. Given this relatively robust track record of counties, there are good grounds for arguing that counties should take on more responsibilities in the future, either by assuming responsibility for functions or subfunctions (such as education or school construction) that are currently an explicit part of the national government’s statutory mandate, or through national government withdrawing from “devolved” sectors (such as urban roads or agriculture) in which it continues to play a direct role in service delivery, parallel to the statutory role played by counties. Any further devolution of functions to counties should go hand-in-hand with the implementation of measures to strengthen and upgrade county-level capabilities, intergovernmental relations, and the policy and capacity support functions of the national government. Next 5–6 years

IMPLEMENTATION RESPONSIBILITIES TIME FRAME

Source: World Bank. Note: ECDE = early childhood development and education; HR = human resources; IGRTC = Intergovernmental Relations Technical Committee; M&E = monitoring and evaluation; MDAs = ministries, departments, and agencies; PFM = public financial management.