INTEGRATING ACCOUNTABILITY MECHANISMS IN LOCAL GOVERNMENT SERVICE DELIVERY
Case Study Of Kenya’s Specialized Intellectual Property Rights Court Regime
By Jo Abuodha 1
What is accountability?
Accountability has become a critical part of public governance. As a concept that originally emerged as an element of public finance management (i.e. ?computing and giving account for the expenditure of public funds), the concept of accountability now goes beyond the domain of public finance and applies to a wide array of important decisions and authorities that are responsible for making those decisions. At the centre of the concept of accountability is the checking and balancing of potential abuse of power by public officials with the objective of limiting the potential for corruption of public offices and officials2.
The domain of accountability has, however, expanded, through time, from the proper exercising of power to include accountability for improving the efficiency and reducing waste in carrying out public program.
Despite expansion of scope, the notion of accountability remains an amorphous concept that is difficult to define. However broadly speaking accountability exists when there is a relationship in which an individual or body, and the performance of tasks or functions by that individual or body are subject to another oversight, direction or request that they provide information or justification for their actions.
According to Stiglitz, accountability requires that first, people are given certain objectives second, there is a reliable way of assessing whether they have met those objectives and third, consequences exist for both the case in which they have done what they were supposed to do and in the case in which they have not done so. According to Stiglitz, the political notion of accountability corresponds to economists? concept of incentives3.
Why is accountability important in public service delivery?
We live in an age of public accountability in which governments in new and old democracies are under increasing media and public scrutiny. There is growing demand that governments, public institutions and officials grant access to information concerning controversial actions and decisions. International transparency organizations regularly monitor levels of corruption and social responsibilities efforts of both public and private actors in different parts of the world4.
Continuous evaluation of effectiveness of public institutions and officials ensure that they are performing optimally, providing value for money in the provision of public services, instilling confidence in the government and being responsive to the community they are meant to be serving5.
In the context of local government, accountability becomes critical since local authorities are closer to the citizens and the central governments channels services to the citizens through them. Their performance or lack of it therefore impacts directly on the central government. Many services such as education, health and social services are delivered at the local level and affect the poor hence stronger accountability and increased oversight provides a better institutional framework for effective delivery of such public services aiming at reducing poverty and promoting shared growth6
Which are some of the accountability mechanisms?
At national and sub-national level accountability can be classified according to the type of accountability exercised and/ or the person, group or institution the public official answers to. Currently, public accountability mechanisms are conceptualized by reference to opposing forms of accountability. Hence we have two main categories:
Horizontal vs. vertical accountability.
Horizontal accountability refers to the capacity of state institutions to check abuses by other public agencies and branches of government, or the requirement for the agencies to report sideways. Parliament and the judiciary as the main accountability institutions can call into question, and eventually punish, improper ways of discharging the responsibilities of a given official or public institution. Alternatively, vertical accountability is the means through which citizens, mass media and civil society seek to enforce standards of good performance on officials.
This alternative approach is sometimes referred to as society driven horizontal accountability or social accountability which denotes an accountability process that relies on civic engagement whereby ordinary citizens and/or civil society organizations participate directly or indirectly in exacting accountability7.
While parliament is typically considered as a key institution in constructs of horizontal accountability, it is also important in vertical accountability. Citizens and civil society groups can seek the support of elected representatives to redress grievances and intervene in the case of inappropriate or inadequate action by government. In addition, through the use of public hearings, committee investigations and public petitioning, parliament can provide a vehicle for public voice and a means through which citizens and civic groups can question government and seek parliamentary sanctioning where appropriate.
Political vs. Legal Accountability:
Parliament and the judiciary act as horizontal constitutional checks on the power of the executive. The role of these two institutions can be further delineated in that parliament holds the executive politically accountable, whilst the judiciary holds the executive legally accountable.
The classification stem from the fact parliament is a political institution, while the judiciary can only adjudicate on legal issues. Together, they provide ongoing oversight in order to keep the government accountable throughout its term in office. They may also be aided by other institutions, such as supreme audit institutions, anti-corruption commissions, ombudsman offices and human rights institutes.
These secondary ?autonomous institutions of accountability? are typically designed to be independent of the executive; in the case of supreme audit institutions (in ?Westminster parliamentary systems?), anti-corruption commissions and ombudsman offices they often report to parliament while in the cases of supreme audit institutions in Francophone countries and human rights institutes, they may be part of the judiciary. Political accountability usually manifests itself in the concept of individual ministerial responsibility, which is the cornerstone of the notion of responsible government8.
In the context of local government, it is critical to point out that the hallmark of good local governance is a people centred approach that enhances participatory development and promotes equity, transparency and accountability in the management of resources and service delivery. Such an approach would provide avenues for the citizenry to voice their views, express their interests and preferences with a view to ensuring that council decision-making, with regard to resource allocation and service delivery, is responsive to their needs and priorities. An effective oversight mechanism will require that available channels of interaction between local councilors and citizens allow signals and preferences by the citizens to be translated into responsive policies by local councilors and plans and actions in by the appointed officials in the delivery of services9.
At local government level in Kenya, accountability and oversight mechanisms are exercised within the framework of the Local Government Act, Cap 265 of the Laws of Kenya. This is the principal statute governing the system of local government in the country.
It is however critical to note that in Kenya, the interaction between the three key players (local councilors, appointed officials and citizens) in local governance and service delivery is characterized by weak legislative and democratic structures, poor resource base; low technical capacity, ignorance of the law governing the operations of Local Authorities, low institutional credibility; public apathy towards taxation and a multiplicity of parallel local service providers.
The following accountability mechanisms can be discerned from Local Government Act and the operations of local authorities in Kenya:
Involvement of elected Councilors in planning processes.
Under the Local Government Act, elected local councilors are expected to represent the interests of the local citizens so that citizen preferences are ultimately reflected in the policies made by the local council. Ideally, such policies as are set by elected local councilors should guide the budgeting and policy implementation processes that translate into service delivery which is responsive to the citizen needs and priorities. This expectation is based on the assumption that citizens are able to influence local decision-making through their local council representatives.
The law requires a councilor to attend council meetings and participate in the deliberations. Sanctions are provided for failure to attend meetings.
Under section 64(1) of the Local Government Act, if a councilor of a local authority without having obtained leave from the local authority, fails throughout a period of 4 consecutive months to attend any meeting (including committee meeting) of the local authority, he shall, unless the failure was due to some reason approved by the local authority, become disqualified from continuing to be a councilor of the local authority.
In the course of discharging their statutory obligation to attend and participate in council meetings, councilors are empowered to bring motions, for deliberation by the council, on matters relevant to the functions of the local authorities. They may also ask questions to the chair of the council or of any committee of that council. Such questions must be on matters relevant to the functions of the council.
When a motion brought or question is asked to the full council, it is referred to the relevant committee for deliberation and report. It is worth noting that a councilor cannot address a motion or a question for a response directly from an appointed official of the local authority, such motion or question can only be addressed to the full council committee for direction.
Section 86A of the Local Government Act provides:
?86A (1) No member of a local authority shall give orders with regard to any matter under the jurisdiction of that local authority or give instructions to any officer or employee of that local authority.
(2) No member of a Local Authority shall, unless so authorised in writing by that Local Authority or a committee thereof-
(a) inspect land or premises which that Local Authority has a right or duty to inspect ..... or give orders respecting works which are being carried out by or on behalf of that Local Authority; or
(b) engage in correspondence for or on behalf of that Local Authority, particularly with regard to conveying decisions or instructions of that local authority.
(3) A member of a Local Authority who contravenes any section of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings.
Whereas it is through the means of motions and question that a councilor as an individual can articulate the needs and priorities of his/her constituents, experience has shown that this vital avenue for championing the citizen?s concerns is rarely utilized. The consequence of this is that citizens feel disconnected from the local authority as one of their principal channels for getting their views into the formal decision-making processes of the council is not effectively utilized. Besides and as illustrated by the above legal provision, the law is lean on what a local councilor is permitted to do but quite comprehensive on what he/she is not permitted to do.
The Oversight Role of the Central Government
The Office of the Deputy Prime Minister and Ministry of Local Government (ODPM/MoLG) is charged with both oversight and advisory responsibility over Local Authorities. The responsibility include ensuring compliance with legislative and regulatory requirements, providing technical support and advice, monitoring the financial management performance and providing capacity building support to Local Authorities as well as spearheading the local government reform agenda. The oversight responsibility aims at ensuring prudent management of financial resources of the council, improved service delivery to local communities, proper accountability of appointed officials and effective participation and involvement of the citizens in the decision-making process on matters pertaining to service delivery and development as well as empowering them to demand accountability from their elected representatives.
This responsibility is exercised through various departments at its head office and through field offices at the provincial level. Further besides the MoLG, other oversights are carried out by the Public Accounts Committee, the Public Procurement Oversight Authority and the Kenya National Audit Office.
The exercise of this responsibility has however in some cases resulted in interventions that have curtailed rather than facilitated effective oversight by the local councils. For example, the requirement for numerous approvals is including approval of council budgets, adjustment of levels of fees and charges, filling of vacant positions in council establishment, raising finances by way of borrowing from financial institutions or any other third party.
In electing local councillors, the electorate has certain expectations from those elected into office. For instance they expect that the elected leaders to be the channel for their views, needs and preferences into the council decision-making process and that the councillor will facilitate the citizens? participation in project identification, planning and monitoring of implementation and further that the councilor will be their watchdog in the council to ensure that their taxes are prudently managed by the appointed council officers. In as much as these are very legitimate expectations in an ideal scenario, in reality of the Local Governments in Kenya, these expectations are rarely met due to deficiencies in the legislative framework, inadequate capacity, lack of necessary resources and the dynamics of political environment in which local councilors operate.
To begin, outside their participation in electing their local councillors, there is no clear and mandatory provision in the Local Government Act for involving citizens in the decision-making process of a Local Authorities in Kenya.
Although under the provisions in the Local Authority Service Delivery Action Plan (LASDAP) Regulations and Guidelines, issued under the Local Authorities Transfer Fund (LATF) Act, Local Authorities are required to involve the community and other stakeholders in project identification, prioritization and monitoring of implementation, the arrangement is inadequate because the citizens and other stakeholders are not involved beyond the selection of projects/activities included in the resource envelope. Further, the responsibility for identifying and inviting the stakeholders to the consultative forums remain that of the local council with no right to demand inclusion by the citizenry.
In the absence of statutory provision prescribing formal channels for engagement, in the context of service delivery, councillors and citizens have resorted to interacting through informal forums.
The forums most commonly used include the following10:
Personal audience, where citizens meet councillors on a one to one basis and discuss specific issues of concern however unlike members of parliament, who have office facilities at their constituency, councillors do not enjoy such facilities hence such encounters take place at the councillor?s residence or place of work which is not only inconveniencing but may not be accessible to everyone;
Public ?barazas? (public meetings), convened by a government administrator (chief) to discuss development issues and other matters of interest to local residents. During such meetings, citizens take the opportunity to air their views on various matters of concern, ranging from development to security;
Written or oral representations by citizens to the LA on issues pertaining to service delivery or other concerns relevant to LA functions.
The media, such as news paper articles and radio and TV talk shows, has increasingly become a popular way for citizens to bring their concerns to the attention of political leaders and the administration both at the local and national level.
Street demonstrations and Mass Action - driven by frustration where other avenues of ventilating their concerns are obstructed, citizens have resorted to mass action and street demonstrations have become a common phenomenon. They usually degenerate into riots and confrontation with the security apparatus. But the message is sent home loud and clearly that the citizenry is dissatisfied with the performance of their political/appointed officials.
Withholding payment of taxes, such as property rates or business licences because of poor/lack of services. Good examples include the case of Karengata Residents Association who withheld property rates and went to court to restrain the City Council of Nairobi from enforcing collection of property rates from the residents, the business community in the Nairobi industrial area did the same to protest the poor state of roads in their area of operation. It was also reported in the media that a citizen in Meru municipality had sued Meru Municipal Council for damage to his motor vehicle occasioned by the poor condition of the road leading to his residence. He sought an injunction to restrain the council from enforcing collection of property rates from the property owners in his area until the council improved the condition of the road.
What kind of legal and policy framework must exist for a local authority to be effective and accountable?
What kind of legal and policy framework must exist for a local authority to be effective and accountable?
In governance and rule of law discourses, the buzzword currently is decentralization as best approach to service delivery. Decentralization is often recommended as a means of enacting and deepening democratic governance for the reason that it can improve participation; as government is closer to the people hence the citizens are more likely, able and empowered to participate in political life and government is therefore held to better account11.
The strong preference for decentralized/ devolved government especially in Africa is influenced by the dislike for centralized systems which are widely perceived as undemocratic, corrupt and out of touch with the citizenry. Many state officials and bureaucrats across Africa are more often than not out of touch with communities living away from major urban centres.
In the context of Kenya, preference for a devolved system of government is driven by the fact that the country is emerging from a state of bad governance demonstrated by widespread corruption, ethnic conflicts, insecurity, political uncertainty; and poverty among others. Poor governance resulted in, among other negative outcomes; the alienation of large portions of the society from the mainstream economy; the squandering of public resources leading to low levels of development and massive poverty, ethnic animosity due to perceptions of historical injustices; and cut-throat political competition and intolerance.
What is decentralization?
Decentralization may be defined and interpreted in several ways. Sometimes it is considered as a term, sometimes a concept, a process, a theory, a methodology or a policy. One of the common definitions is that it is a process through which authority and responsibility for public functions is transferred from central to local government12. In this sense decentralization is a process of redefinition of structures, governance procedures and practices to be closer to the people.
Decentralization deals with the allocation between center and periphery of power, authority, and responsibility for political, fiscal, and administrative systems. The most common definitions of decentralization distinguish variants along a continuum where at one end the center maintains strong control with limited power and discretion at lower levels (deconcentration) to progressively decreasing central control and increasing local discretion at the other (devolution). The devolutionary end of the continuum is associated with more democratic governance13.
Decentralization has a spatial aspect in that authority and responsibility are moved to organizations and jurisdictions in different physical locations, from the center to the local-level. And it has an institutional aspect in that these transfers involve expanding roles and functions from one central agency/level of government to multiple agencies and jurisdictions (from monopoly to pluralism/federalism).
Decentralization/ devolution in Kenyan context.
The colonial government established and entrenched a highly centralized state whose objective was exploitation and plunder for the benefit of British corporations and families back in the UK. At independence however, the country adopted a quasi federal state anchored in a fairly progressive liberal constitution whose primary features were: an extensive bill of rights; a bi-cameral parliament; devolved government; separation of powers between the arms of government; judicial independence; and a multi-party political system.
The features of the independence constitution however did not survive the post-colonial government. Under the guise of consolidating the post-colonial state and engendering nationalism, the Kenyatta government significantly amended the independence constitution to remove virtually all the checks on executive power thereby removing the notion of limited government and federalism.
Executive power was enhanced and entrenched creating an imperial presidency with wide and unchecked powers. This state of affairs led to state capture by a few political elites who were able to control both political and economic power in the entire country. The Moi regime that took over power from Kenyatta did not do anything to restore public confidence in their government. In fact it generally believed that corruption that was low level by the time Moi took over power in 1978 upon the death of Kenyatta peaked under Moi?s era.
The need for review of the current constitution therefore arose out of the outcry by most Kenyans that the then constitution did not make adequate provisions for the protection of human rights promotion of rule of law and good governance. For instance with regard to the presidency people constantly criticized the presidential nature of the regime, with huge and untrammeled powers in one person?s hands, which led to nepotism, corruption, cronyism, and the suppression of human rights. Many were critical of the way in which the government seemed to have become the monopoly of one ethnic community.
People therefore wanted to limit the power of the president (as well as how many times a person can hold that office). They wanted greater accountability of the government, particularly through a stronger parliament. They also wanted to check power by dividing it between national, provincial and district governments. Many expressed a preference for ?coalition? government, consisting of members of different communities and regions, so that the government does not become the preserve of a single community, but one that had a national character.
People felt abandoned by the government and lost all confidence in its will or the capacity to listen to the people, much less to relieve their poverty and sense of helplessness. It seemed as if the whole nation was alienated from the state. People attributed their misery to the centralization of power in the president and the lack of his accountability. The sense of their own helplessness was more than reflected in the usurpations by the central government of powers that they considered they should exercise through their local councils and communities. There was strong desire for the recognition of peoples? dignity and rights, empowerment of local communities, and public participation in the affairs of the state.On the issue of land people wanted individuals who privatized public land to give it back to the government for redistribution to deserving cases. There was a general feeling that certain individuals particularly those associated with the presidency acquired or owned unreasonably large parcels of land which they did not put to use hence there was need to legislate on the maximum acreage of land an individual could own.
Framework for devolution under the new Constitution.
Article 6 of the Kenyan Constitution provides:
6(1) The territory of Kenya is divided into the counties specified in the First Schedule.
(2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
While chapter 11 on devolved government provides:
174. The objects of the devolution of government are?
(a) to promote democratic and accountable exercise of power;
(b) to foster national unity by recognizing diversity;
(c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;
(d) to recognize the right of communities to manage their own affairs and to further their development;
(e) to protect and promote the interests and rights of minorities and marginalized communities;
(f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
(g) to ensure equitable sharing of national and local resources throughout Kenya;
(h) to facilitate the decentralization of State organs, their functions and services, from the capital of Kenya; and
(i) to enhance checks and balances and the separation of powers.
175. County governments established under this Constitution shall reflect the following principles??
(a) county governments shall be based on democratic principles and the separation of powers;
(b) county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and
(c) no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.
176. (1) There shall be a county government for each county, consisting of a county assembly and a county executive.
(2) Every county government shall decentralize its functions and the provision of its services to the extent that it is efficient and practicable to do so.
The sum total of the foregoing provisions is that they seek to entrench through the constitution, participatory and accountable governance. In addition to the triggers for clamor for change in Kenya outlined above, the people of Kenya in passing the new Constitution on 27th August, 2010 expressed their desire to participate in how they are governed and to hold agencies entrusted with such responsibility accountable. Whereas the constitution makes provision for these broad principles, parliament is mandated by article 190 of the constitution to pass legislation to ensure that county governments have adequate support to enable them perform their functions.
Elements/ tools for effective local government accountability.
Access to information
Inherent in the need for accountability, transparency and popular participation in governance is the existence of avenues for free flow of information between public bodies and the people they exist to serve. In other words, one of the hallmarks of a truly democratic society is a culture of openness in which government places utmost importance in making itself amenable to public scrutiny of its activities at all times, by actively making available information on the functioning of every aspect of its governance machinery.
The public and the media must be given an opportunity to scrutinize and ascertain the extent to which fiscal allocations truly reflect government commitments as revealed in their prioritization in the budget. The impact of the budget on social priorities needs thorough scrutiny. In the analysis of the budget a sect oral analysis may be undertaken to juxtapose sect oral needs and their exigencies vis-à-vis the budgetary allocation. Budget analysis further serves to demystify the budget. Large numbers, complex codification and accounting systems and a long list of heads make understanding of the budget difficult. In Kenya, Mars Group has recently mounted a campaign for budget literacy and debate. According to Mars Group some of the budget items do not make sense and could have been conduits for public funds pilferage.
In addition to budget analysis there is also need for budget tracking. There is need to monitor how public funds are actually spent with focus on leakages as resources flow downstream. Leakages and inefficiencies in executing the budget usually are flashpoints for corruption and plunder of public resources.
Participatory performance monitoring.
Communities must be able to use performance monitoring to observe the implementation and performance of local projects, public services or programs. This entails citizen groups or communities monitoring and evaluating the implementation and performance of public services or projects according to indicators the service users and providers themselves have selected. A system of citizen report cards may require to be adopted in the process.
An integrity pact is a contract or agreement by a body to adopt a package of measures that promote accountability and integrity such as agreement not to take bribes, transparent decision making, to be open and responsive to citizens? complaints
By automation of processes it is possible to significantly reduce opportunities for corruption by removing human agents at data collection and service delivery points. Anti-corruption software tools can track various events in electronic systems that signal not only illegitimate actions that have already taken place but also proactively detect suspicious behaviour before any crime has been committed.
This may serve as a real deterrent as well as a monitoring tool. Such systems can, to some extent, assist in tracking anomalies in operations, in observing systematic features of customers? reporting about errors or misuse, and in social media analysis ICT is increasingly a powerful tool for participating in global markets and promoting accountability, improving delivery services and enhancing local development opportunities.
Challenges to decentralization
In conclusion, since decentralization entails changes in institutional arrangements it affects power relations. It therefore typically creates two groups: those who benefit and are therefore likely to support reforms and those who are likely to lose out politically or economically and therefore may attempt to undermine the process. Therefore as the country embraces decentralization/devolution there is critical need to re-acculturate people to ingrain accountability and transparency as a vital element of our national values.
1. The writer is an Advocate of the High Court of Kenya email@example.com; firstname.lastname@example.org
2. Community Law Centre University of Western Cape, 2008: Municipal Accountability: Assessing Municipal Accountability Tools.www.Idphs.org.za
3. Stiglitz Joseph E; Democratizing the International Monetary Fund and the World Bank: Governance and Accountability. Governance: An International Journal of Policy Administration and Institutions, vol 16, No.1, January, 2003.
4. EU Research on Social Sciences and Humanities: Analysing Public Accountability Procedures in Contemporary European Contexts; 2004.http://europa.eu
5. Stapenhurst & Mitchell O?Brien: World Bank Institute.
6. Study on Local Council Oversight Role and Social Accountability in Kenya: Africa Development Professional Group; December, 2008.www.adpgroup.org
7. The term social accountability is, in a sense, a misnomer since it is not meant to refer to a specific type of accountability, but rather to a particular approach (or set of mechanisms) for exacting accountability. Mechanisms of social accountability can be initiated and supported by the state, citizens or both, but very often they are demand-driven and operate from the bottom-up.
9. Supra, note 5
10. Supra note 511. Zoë Scott ,Topic Guide on Decentralization and Local Government, Governance and Social Development Resource Centre, September 2009
12. Nikolov Dimce, Decentralization and Decentralized Governance for Enhancing Delivery of Services in Transition Conditions; Background Paper for Regional Forum on Enhancing Trust in Government through leadership Capacity Building St Petersburg, September, 2006.
13. Brinkerhoff D.W & Omar Azfar; Decentralization and Community Empowerment: Does Community Empowerment Deepen Democracy and Improve Service Delivery? Paper prepared for USAID Office of Democratic and Governance, October, 2006.