Water Sector Inter-governmental Transition
As a core element of water sector reforms, the inter- governmental transition is focused on alignment in uptake and performance of mandates between county governments, and the national government. This is anchored on article 6 of the Constitution which recognizes governments at national and county level as being distinct, but also requires them to work in consultation and cooperation. Article 189 recognizes that in certain instance, performance f mandates may require formation of joint authorities or committees between the national government and counties, or amongst counties. The functions being transitioned are specified in the Fourth Schedule to the Constitution, where Part 1 and Part 2 set out the functions of the national government, and county governments respectively.
The national government has the functions of (i) use of international waters and water resources (ii) national statistics and data (iii) consumer protection (iv) national public works (v) establishing durable and sustainable system of development for water protection, securing sufficient residual water, hydraulic engineering and dam safety (vi) capacity building and technical assistance to counties.
County governments have the functions of (i) county public works and services including storm water management, water and sanitation services and (ii) implementation of specific national government policies on soil and water conservation. County water and sanitation service therefore includes county specific water and sanitation asset development, asset management and related water supply and sanitation service provision for the realization of the human right to water and reasonable standards of sanitation in the county. County governments also play the critical role of soil and water conservation under the regulatory framework developed in a consultative and collaborative approach by the national government institution responsible for water resources regulation, namely, the Water Resources Authority. As a matter of policy, the county governments that seek to invest in water resources conservation in line with their respective county aspirations are able to use county legislative and operational frameworks to realize their goals within the framework of national regulatory principles. Thus, both the water supply and sanitation service (WSS) function, and the soil and water conservation function are devolved. However, these must be affected within the context of a regulatory framework spearheaded by the national government in collaboration with county governments.
In addition, some mandates present a unique governance perspective in a devolved context. The Fourth Schedule lists water supply and sanitation as a county function; and this function is about fulfilment of the human right to water, and the right to reasonable standards of sanitation provided for under article 43 of the Constitution. Being human rights, the obligation to respect, protect and fulfil these human rights is a responsibility of both the national government, and county governments. Thus, in framing policy actions to fulfil these two rights, both levels of government have to continue working collaboratively, and determine the intergovernmental arrangements that are necessary.
The formal transition of functions was executed under the Intergovernmental Relations Act, through the now defunct Transitional Authority. But the transfer of functions will only be finalized upon the effecting of the transfer of assets and liabilities that are required for delivery of the now devolved mandates. This formal transfer of assets and liabilities is the process that is getting underway, as mandated by the Water Act 2016 to finalize the entire transition process within three years from commencement of the Water Act.