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New Water Act 2016

New Water Act 2016 puts into effect in the water sector the constitutional provision for a devolved government

President Kenyatta signed a new Water Act in October 2016. The new law is primarily intended to align the water sector to the devolved structure of government described in the new Constitution of Kenya of 2010. In line with Art. 185 of the constitution, the water act gives to county governments the mandate for water and sanitation service provision and that of the development of county water works. Water service and water resource regulation remains the responsibility of the national government, as does the management of national public water works, i.e. water works that are cross-county and funded from the national budget.

Soon after the signature of the act, the Annual Sector Conference and Kenya Water Week was an opportunity for stakeholders to discuss their views on the act. The discussions brought to light many current hot spots of water governance and integrity.

The Annual Water Sector Review 2016 hints at accountability risks

The conference was launched with the presentation of the Annual Water Sector Review report: a yearly evaluation of sector progress. This year, the report recognized integrity challenges and specifically recommended better enforcement of ‘good governance in the water sector at all levels to improve overall performance and achieve value for money’ (p. 11).

 

Another key conclusions of the report can be drawn from what it actually doesn’t contain. The report is prepared by the Ministry of Water and Irrigation based on data provided from counties, national sector institutions and CSOs. Only 10 out of 49 counties submitted data to the Ministry however, meaning that a big part of the sector budget, activities and progress was not reflected. This is a revealing example of conflict between national and county governments.

In his opening statement for the conference, the Cabinet Secretary for Water, Hon. Eugene Wamalwa, underlined the Ministry’s dedication to having all stakeholders act jointly. But the discussions, sometimes heated, revealed friction and disagreement on the appropriate level of centralization, on what the priorities are and where responsibilities lie. Such disagreement poses accountability risks.

Integrity is at the heart of the debate on division of responsibilities

Interestingly, integrity issues are highlighted to justify the position of both parties on the appropriate level of centralization and the division of responsibilities. County government representatives demand a stronger role in managing sector development projects and financial planning, especially as they view themselves as primary facilitators of public participation in decision-making and budget processes. On the other hand, the national government representatives underlined the need to ensure coherence and coordinate programmes centrally, pointing to weaknesses in reporting from the county level and a need for stronger accountability. They also argued that national-level coordination is key to safeguarding transparency. Similar points were discussed in terms of regulation and water resource management.

The conference was an important step in bringing both sides to the table but tensions remain high and the debate will now continue not only in the technical coordination committee between county and national government executives responsible for water, but also in court. In December 2016, the Council of county Governors sued the Cabinet Secretary for Water and Irrigation to stop him from implementing the Water Act 2016.

What civil society can do in the current situation

From an integrity perspective, the constitutional provision for devolution creates new spaces for public participation and accountability at local level but comes with added risk that oversight could be weakened and corruption problems be decentralized. Even as the detailed division of roles continues to be debated and adjusted, the County Public Participation Guidelines already provide a clear framework for interaction between citizens and government throughout the cycle of policymaking and budgeting at county level across all sectors.

CSOs and development partners in the water sector can step up efforts to enable citizens to effectively use the new spaces to influence planning and hold county governments responsible for their actions. At the same time, civil society and development partners should advocate to safeguard the advances made in the 2002 reforms in terms of establishing clear lines of accountability by separating functions, thus ensuring that devolution is combined with strong control mechanisms. They can also push to ensure that integrity and ethics are a part of the urgently needed capacity development for county governments to fulfil their new roles.