Kenya is witnessing a deliberate clawback on devolution in the water sector.
The recent licensing of Athi Water Works Development Authority (AWWDA) to operate as a Water Service Provider for Karimenu II Dam water supply system is a case that illustrates the deliberate encroachment into devolved functions by the central government.
Whereas it is desirable that Karimenu II Dam is managed and operated by Athi WWDA due to its cross-county design, the Constitution and the Water Act do not provide for the licensing of Water Works Development Agencies (WWDAs) as water services providers. Thus, issuance of a licence to Athi WWDA is unconstitutional and undesirable.
The Fourth Schedule of the Constitution provides for the distribution of functions between the two levels of government.
In the case of water and related services, the Constitution assigns the national government one function; protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including in water protection, securing sufficient residual water, hydraulic engineering and the safety of dams.
The county governments are assigned three functions; (i) implementation of specific national government policies on natural resources and environmental conservation, including soil and water conservation, (ii) county public works and services and (iii) water and sanitation services.
The relationship between the two levels of government in the conduct of their affairs is provided for in Article 189(1)(a) which requires government at either level to perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level and respects the constitutional status and institutions of government at the other level and in the case of county governments within the county level. The Water Act of 2016 provides significant clarity on the roles of different agencies in the water sector.
The national government, in fulfillment of her mandate, established agencies such as WWDAs, Water Sector Trust Fund, Water Services Regulatory Board and Water Resources Authority.
These agencies are not supervisors of county governments neither should they be in competition with the county governments. The county governments have established community, county and inter-county Water Services Providers (WSPs). These are the entities that the national government agencies want to compete and disempower.
The recent designation of national public water works under legal notice No. 102 – Kenya Gazette Supplement No. 43 dated July 21, 2023 – threatens to impede the jurisdiction of the WSPs in water service provision by entrenching WWDAs as bulk water suppliers contrary to the provisions of the Constitution and the Water Act. This is just the beginning of a process to undermine county governments and subsequently engineer a process to disempower them.
Kenya’s water sector is grappling with a myriad of issues, including inadequate infrastructure, population growth, non-revenue water, climate change effects, pollution, inconsistent water supply among others. The least of concerns of the national government should be to undermine the efforts of county governments by creating unhealthy competition.
It is time to accelerate the transfer of water infrastructure and assets to the county governments. It is time to rethink the necessity of all agencies, even those that show the slightest sense of competing with the county governments. Let us give devolution a chance.
-Mr Mwadime is chairperson of CoG’s Water, Forestry and Natural Resource Management Committee