The government’s chief legal adviser has been given 90 days to gazette the transfer of the roads function to county governments, in a ruling seen to give devolution a lifeline.
High Court judge Mumbi Ngugi said yesterday the country faces the risk of delaying devolution on grounds that the counties lack the capacity to take over devolved functions.
She said if this is allowed, the transfer of functions to the counties will keep on being postponed, which will weaken and undermine devolution.
“As a country, we have experimented with decentralisation before, but our experience with devolution or decentralisation of power has not been a happy one,” Ngugi said.
“At independence, we had a devolved system of government, akin to what we have now. The central government then in place delayed the transfer of power to the regions, and ultimately, we gave up on decentralisation.”
She said there is capacity gap in the counties but for the Attorney General to use this as an excuse and fail to gazette devolution of the roads function amounts to violation of the objectives of the decentralised system.
“Let me emphasize that the court is not insensitive to or unaware of the weaknesses endemic in the counties, which even the Senate recognised in its report. I am fully cognisant of the capacity gap in many counties, and of the need to build the capacity of the counties,” Ngugi said.
She said this, however, cannot be achieved by keeping the devolved functions under the control of the national government.
But the ruling will only apply to 29 counties which challenged the decision to take away some functions from them.
Ngugi granted an order stopping the Kenya National Highways Authority from proceeding with procurement or inviting tenders, awarding contracts or concessions for the use of Class A, B and C road reserve land. KENHA was also barred from putting up billboards or in any way interfering with the management of roads under the counties.
Ngugi’s judgement arose from an appeal by county governments.
This article was originally published on The Star.
Read more about Kenya’s road devolution case here.
