The spirit of the law was killed it before it was born

Leaders appear lost in details of governance

Former premier Raila greets Kirinyaga governor Anne Waiguru at the Devolution Conference in Kakamega.

BY kenyatta otieno

At this year’s Devolution Conference Raila Odinga said that the country should think of introducing a third tier Regional Government. Two things came to mind, Raila is a good governance junkie and this proposal was not a surprise to those who know him well.

Secondly it is meant to test the waters and ignite debate that will lead to changes in the devolution law. Raila’s obsession with constitutional changes as a basis for good governance makes him appear as a one tool artisan. His astute political skills serve this obsession well making him a warrior of good governance. 

Devolution is anchored in Chapter Eleven of the Constitution. The objectives of this law which are its spirit are; to promote democratic exercise of power, foster national unity, recognize communities’ right to manage their own affairs, give powers of self-governance to the people and enhance people’s participation in county governance, to decentralize state organs and ensure equitable distribution of resources in Kenya.

The spirit behind the letter of the law is well worded and solid but the truth is Kenyans summarized it to; let us all ‘eat’ at the same time.

Devolution was born out of majimbo (federalism) debate that was part of the push for changing the constitution in the nineties. The idea was going back to the government structure that was proposed at independence and pushed by KADU which was dominated by small tribes.

In the 90s the civil society had realized that removing Moi from power was like cutting a mugumo tree with a razor blade. The main agenda for civil society was to water down the presidency by giving power to regional governments.

In an article by Robert Maxon featured in Kenya at 50 titled – The Demise and Rise of Majimbo in Independent Kenya, Maxon explain how the centrists pushed away federalism from our laws.

While the independence constitutions introduced in 1963 had some significant characteristics of federalism, the regionalism created fell short of a full federal system of governance. Within a year of independence the regional system was rendered redundant through constitutional changes.

At the inauguration of the republic on December 12, 1964, majimbo had disappeared as KADU folded and joined KANU.  That is how federalism disappeared from our political vocabulary until it showed up again in the 90s.

At independence the small tribes coalition around KADU then led by Ronald Ngala and Daniel Moi was born out of the fear of Luos and Kikuyus domination. Federalism with 8 regional presidents was thus a way of safeguarding their interests against the big tribes who were pushing for a centralized government. In the 90s, tribalism ghost came back again but this time it was Kikuyus in the fear zone. The government of Jomo Kenyatta had settled Kikuyus outside Central Province especially in the Rift Valley Province where the Kalenjin had formed a habit of throwing them out of their farms.

In the run-up to the first multiparty elections in 1992, tribal clashes instigated by the Kalenjin had displaced many Kikuyus from Nakuru and Eldoret. If the 8 regions were to be retained then Kikuyus will be at the mercy of KAMATUSA (Kalenjin, Maasai, Turkana and Samburu), the larger conglomerate of Rift Valley tribes. The Kikuyus in the opposition like Mwai Kibaki, Martha Karua and their sidekick like Kiraitu Murungi were pushing for constitutional change but skirting around majimbo. Raila became the most devout defender of federalism.

The first legal framework for review the Constitution was designed in The Constitution of Kenya Review Act – CKR Act which came into effect on 13th May 2001. The CKRC Draft Constitution commonly known as Ghai Draft was ready by 2002 but Moi dissolved parliament prematurely in October before parliament looked at it ahead of the 2002 general elections in December. When Moi handed over power to NARC leader Mwai Kibaki in 2003, a cabal of new generation of Mt. Kenya Mafia put constitution change on ice. Kiraitu Murungi, then minister for Constitutional Affairs even said the push was for removing Moi from power but now Moi was not in power.

In 2005, Bomas Draft was ready but the PNU side of NARC led by Mwai Kibaki sent Attorney General Amos Wako to Kilifi to redraft it. The Bomas draft had provision for 14 Regional Units, and a power sharing formula between a President and Prime Minister. The Kilifi Draft retained an all-powerful president and Raila Odinga and his LDP brigade in NARC campaigned against it in the Novermber 2005 Referendum. In the end 58% of Kenyans voted against it and change the constitution push was shelved as politicians went for 2007 elections.

The hotly contested 2007 elections were a blessing in disguise for constitution change. Mwai Kibaki was controversially sworn it at night and the next day Kenya went up in flames. This led to a Koffi Annan mediated settlement National Accord and Reconciliation Act of 2008. Raila Odinga’s ODM agreed to share power with PNU and Raila became Prime Minister. The post-election violence forced Kenyans to take constitutional changes seriously and in August 2010 a new constitution was ratified in referendum and promulgated.

Prior to the political class agreeing on the draft, the basis of which was the Bomas Draft, PNU side managed to water it down to a pure presidential system based on the American Constitution. Federalism was watered down to Devolution and the units increased to 47 Counties.

Raila gave in by giving up on parliamentary system so as to appease the fear of Kikuyus but also win on Devolution. His hope was that devolution will transform the lives of Kenyans but the reality eight years later is very different. This is why he is pushing for another round of reforms.

We can eat together

Raila Odinga led pro-federalism that changed to devolution was to take power to the people but the truth is politicians wanted a piece of the national cake. The Kikuyu and Kalenjin elite under Kenyatta and Moi had amassed a lot of wealth under the cover of government.

This prompted the political outsiders to come up with a formula for distributing the cake to the grassroots. Everybody wanted a piece of corruption, and that was the true spirit behind devolution. Luo politicians did not even conceal it as some said openly that Raila brought them devolution so that they can also eat.

It is now evident that as much as there are success and promising stories from devolution, many counties have not moved from teething problems and are not sustainable.

Some counties do not even make economic sense and the leaders appear lost in the details of governance. The first thing Governors pushed for was for the title “His Excellency”. MCAs also pushed to be referred to as “Honourable”. This is the mentality that devolved corruption from Nairobi to the counties. Meanwhile no County is collecting as much revenue as the municipal and county councils in the former dispensation.

Raila’s proposal for a third tier of regional Government and further pointing people questioning him to the Bomas Draft is an indication that he wants to push for a reduction in devolved units.

His fear is that the new political class in counties will not receive it well. People have been preparing to vie for Governor and other posts and they will not give in without a fight. 

So he is taking the long route because he believes a majority of people will support him once it finds its way into the referendum. The trump card is to cater for Kikuyu’s fear in the Rift Valley and we can reduce the units to between 20 and 25.

Most of these counties were hived out after independence with the latest coming in the early nineties. Vihiga was part of Kakamega until 1992 and there is no reason why they cannot merge. Kisii can merge with Nyamira, Homa Bay and Migori, Kisumu and Siaya.

The former Eastern province can give us Lower Eastern – Makueni, Kitui and Machakos. Then Eastern can have Meru –Tharaka-Nithi and Embu while Isiolo and Marsabit can form Upper Eastern. Siaya is largely a rural county, joining it to Kisumu will give it an urban and industrial edge just like Bomet will from Kericho.

This time round, we can sort out the bad spirits of fear and gluttony first before we amend the law on devolution. We have learned from experience so nobody will be bringing perceptions to the table but facts and figures.  Those who will not buy in can be given a period to prove that their counties can sustain themselves. Let us watch Raila Odinga and see how he remoulds the majimbo clay. This is his fort and the turtle has landed on its waters. (



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