Political games, silly supremacy wars and a tattered record in our attempt at decentralising revenue and governance herald a possible repetition of dark history that Kenya’s must not allow
By Ndung’u Wainaina
In the last month, the Linda Katiba Movement has been running a campaign dubbed ‘Ugatuzi Kamili; Masha Bora’ (Our Devolution; A better life). This campaign is set to go to the counties as part of broader public education on the centrality of the devolution in the 2010 Constitution and changing of lives, local economies, and services nature of the devolution.
Kenyans will get a chance to learn why devolution is so pivotal in the exercise of their sovereign will. Devolution is the next transformational frontier after the return of multipartysm and the new Constitution. Remember, the rallying call for the 2010 Constitution was ‘Katiba Mpya, Maisha Mapya’. Linda Katiba Movement believes devolution is the epicentre of consolidating the democratic and constitutional dividends of the last more than 30 years of struggle by the people of Kenya.
Why is devolution so important to Kenyans? Are threats to devolution a repeat of history?
The Constitution of Kenya 2010 was promulgated on 27th August 2010. It has been hailed as one of the most progressive Constitutions in the world. Kenya’s constitutional journey is one of monumental triumphs and failures. The promulgation of the Constitution of Kenya 2010 fundamentally transformed the country politically, economically, and socially. The Constitution ushered in a new republic with expanded, transparent political and economic structures. It marked a critical turning point for the nation. Some of the changes were immediate, while others are set to take time. Kenyans need to be resilient and focused on fulfilling the Constitutional promise, objectives, purposes, and values.
The Constitution marked the end of a highly centralized state to resolve the critical issues of state power versus citizens’ rights and control over the development process while establishing a powerful framework for deepening democratic reforms, devolving state power, resource-sharing, and economic equity, gender equality, and broader human rights. The Constitution is predicated on five basic principles: equity and inclusiveness; equity of opportunities; delinking politics and policy; equitable access to and share of national resources; and bringing democratic government and public/social services closer to the people. Kenya now has a devolved presidential system of governance.
Constitution was a long protracted, and negotiated political settlement. The centralists wanted the retention of all powerful presidential system, while decentralists demanded a parliamentary system with aspects of devolved powers. The middle ground became the system established by the 2010 Constitution. The other pillars of the final political settlement were: Devolution of power and resources with an equalisation fund to uplift 14 Counties that suffered historical marginalization.
To ensure the National Executive doesn’t play monkey with Counties, the constitution set at least 15% of revenue share calculated from the last approved auditor general audited accounts. Public finance guarantees equal society and equitable development. Resource allocation must be paired with affirmative action to ensure equality and equity for every citizen, region, and community. The entrenchment of broad enforceable social and economic rights as the core to achieving human dignity as the basis of development is fundamental.
There is a requirement for human dignity law to enforce these rights. Dispersal of powers between different arms of the state, democratic institutions, and independent commissions and offices. This is the anchor of principles of separation of powers and checks and balances in the constitutional governance system established by the 2010 Constitution. The governance principles of participation, inclusion, equality, and openness are engrained in the entire constitution architecture as part of larger national values and principles. The principles of sovereignty of the people, Supremacy of the Constitution, and multiparty participatory democracy were fully entrenched in the constitution.
The 2010 Constitution had one crucial intended goal to end the winner-takes-all system and improve stability by giving power to communities that are usually neglected from power. The need for stability and the urgency of drafting a new
The Constitution created a much-extended decentralization than the one initially set in the Bomas Draft. The 2010 Constitution specifies its goals to provide proximate and easily accessible services, ensure an equitable share of resources between regions, enhance the separation of powers, protect and promote minority communities’ interests, increase people’s participation in decision-making, and uphold political accountability and democratic values. Devolution has been the most significant change in Kenyan politics since independence.
Devolution was the most significant constitutional imperative of the 2010 Constitution. Devolution is the core promise of the new Constitution. It reverses the system of control and authority established by the colonial powers and continued by successive Presidents. The large panoply of institutions that play a role in devolution matters evidence the central place of devolution in the deconstruction-reconstruction of the Kenyan state. The current devolution provisions in Chapter 11 of the Constitution constitute a significant shift from the fiscal and administrative decentralization initiatives that preceded it. It encompasses elements of political, administrative, and fiscal devolution. A vertical and horizontal dispersal of power puts the exercise of State power in check. Notably, the Constitution has created a Senate that enjoys direct legitimacy and a popular mandate, commanding it to be the protector of devolution.
Devolution came with a triple political objective: to share power with minority communities, de-ethnicise the political field, bring decision-making closer to citizens, and increase accountability. Devolution was thus adopted not as an end in itself but as a means to an end as a process of achieving specific policy objectives. Its main policy objectives were to promote and advance democracy and accountability, development and service delivery, equity and inclusiveness, and limit and constrain national government and centralization. Notwithstanding, one objective marks an apparent breakthrough with the past. The 2010 Constitution specifies the need “to foster national unity by recognizing diversity”. Promoting such diversity is admitting a failure of four decades of policies intended to create a Kenyan identity by eliminating ethnic sentiments.
Devolution is a fundamental principle of the Constitution. As the historical account clearly indicates, it is pivotal to facilitating Kenya’s social, economic, and political growth. The essential purpose of devolution is to spread the power of the state throughout the country; and reduce the centralization of power, which is the root of our problems of authoritarianism, marginalization of various communities, disregard of minority cultures, lack of accountability, failure to provide services to people outside urban areas and within the deprived rural areas. It is relevant to consider the range of responsibilities shouldered by these nascent county governments. The Bill of Rights (Chapter 4 of the Constitution) is one of the most progressive in the world. It contains political and civil rights and expands the canvas of rights to include cultural, social, and economic rights. Significantly, some of these second-generation rights, such as food, health, environment, and education, fall under the mandate of the county governments and will thus have to be realized at that level. This means that county governments will require substantial resources to deliver on these rights and fulfil their constitutional responsibilities.
This is why under Article 215, the Senate commands a majority in the nine-member commission that has five representatives from Senate alone, compared with only two from the National Assembly and only two from the Executive arm of Government. This means that the Senate commands a decisive vote regarding the recommendations that go into drafting the Division of Revenue Bill long before it reaches the National Assembly for determination.
Any significant deviation from such recommendations will require a written explanation from the Cabinet Secretary responsible for finance. It must be noted here that in providing for a skewed and unequal representation of the Senate vis-a-vis the National Assembly, within the Commission of Revenue Allocation, the intention and the rationale of the drafters of the Constitution was to ensure that the Senate has comprehensive input into the allocation of revenue at that stage, deeming unnecessary any more activity at the legislative stage. Article 96 of the Constitution represents the raison d’être of the Senate as “to protect” devolution.
Given Kenya’s history, which shows the central government to have previously starved decentralized units of resources, the extent to which the Constitution endeavours to guarantee a financial lifeline for the devolved units is a reflection of this experience and, more specifically, insurance against recurrence. Indeed, in practically all its eighteen Chapters, only in Chapter Twelve (on public finance with respect to devolution) does the Constitution express itself in the most precise mathematical language. This is not in vain. It affirms the “constitutional commitment to protect” and acknowledges an inherent need to ensure sufficient resources for the devolved units. The Supreme Court, in this reference, bears a duty of care to ensure that the Senate shall realize its constitutional “duty to protect” the devolution process. Kenya’s history and heritage ring with a consistent demand for decentralization, but the power elite have not agreed on the character, design, and mechanics of devolution.
Devolution is one important constitutional instrument for achieving unity. Our country’s development and security are unlikely to be preserved by the old political logic of exclusion, discrimination, and sectarianism; the country is set to flower only if we respect its diversity and pursue policies of inclusivity and belonging. Devolution is one of the main fulcrums on which Kenya’s renegotiated social contracts turns. The fact that the constitutional clauses on devolution were founded on a political compromise by the elite is not sufficient reason to compromise the widespread desire for a devolved system of government that empowers communities and unlocks Kenya’s developmental potential.
The real issue regarding passing the Division of Revenue Act of 2013 was the amount of revenue that would be given to the counties. In providing [Article 203 (2)] that the revenue allocated to counties ‘shall be not less than fifteen percent of all revenue collected by the national government’, the framers of the Constitution were making an important statement, namely: “We are aware that this is not enough, and as we work towards an ideal devolution structure, the fifteen percent will constitute the minimum bundle of financial goods for counties even though certainly, more is desirable.” The array of functions of county governments, as listed in the Fourth Schedule in the Constitution, would confirm this.
The Constitution of Kenya, 2010, was attractive to many Kenyans for many reasons. In particular, devolution was instrumental in mobilizing support for the 2010 Constitution because many people perceived its dispersal of economic and political power as an act of liberation. There is a large section of Kenyan society for whom the new Constitution is coterminous with devolution. It represents self-empowerment, freedom, opportunity, self-respect, dignity, and recognition. This perception is captured succinctly in the principles and objects of Devolution in Article 174. To further demonstrate the constitutional significance of devolution, the 2010 Constitution demands, “Within five years after the Constitution’s effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.”
Devolution was predicated on the understanding that even though equality of opportunity may not necessarily lead to equality in development outcomes, inequality of opportunity (which is Kenya’s historical experience) would inevitably result in inequality in outcomes. This is the logic behind giving every Kenyan and every region a fair and equal chance to succeed or fail. The centralized political and economic model that we have experimented with for 50 years has not elevated Kenya from its status at independence, as a third-world country, into a first or second-world power – an achievement realized by many other countries during the same period. Instead, we have witnessed significantly high poverty levels, asymmetrical development patterns, and highly ethicized politics – basically a failed political culture and a failed development paradigm.
Kenyans must never forget the dangers that face devolution. Kenya’s independence Constitution of 1963 inaugurated a system of regionalism, but by 1969 this system of diffusion of power had been dismantled and replaced with a centralized system of government. The first step was to deny regional governments money. Second, recentralizing laws were passed. Third, the Lower House (National Assembly) was used to enable the disbanding of the Upper House (Senate). The Central government formed Local County Councils with Chairmen and elected Councillors to pacify and contain any possible disgruntlement. They created the Ministry of Local Government to manage and control the local County Councils. County Councils depended on Ministry for financial support and little levies they collected.
In 1965, the Central government, on short notice, came up with Sessional Policy Paper 10. This Plan was intended to be flexible to enable the Government to adjust any of its provisions with few constraints. Further, it allowed the government to invest in areas yielding high returns, guarantee a balanced budget, meet all recurrent expenditures from its own resources and improve foreign exchange and balance of payments positions. Implementing The Plan went hand in hand with constitutional amendments to give the central government more power and control authority with far-reaching consequences.
The central government set up numerous delegations and inquiries about investment in Kenya in addition to the actual investments that have taken place. It went out to find new markets and areas of technical and trade cooperation worldwide. Finally, the government established an education reform commission to formulate a new education policy. The sessional paper not only reinforced government control of the economy and development but also ushered in the appropriation of the state by the political elite to control power and resources at the expense of the population. It further formed the basis of privatization policy (capture of state enterprises by individuals) and entrenched glaring inequalities among people and regions.
Part of the core reasons for the constitutional reform clamour was to fundamentally repeal this governance and economic policy. The people of Kenya wanted to reassert their sovereignty and self local governance, control power and resources, and guarantee a more humane, equal society and equitable economic development. Adopting the 2010 Constitution represented a fundamental paradigm shift in the governance structures in Kenya. It exemplified a constitutional, legal, and institutional shift from a highly centralized, top-down, and inequitable system of governance to a devolved government that aims to institutionalize bottom-up decision-making, equitable development, and popular participation. Devolution has been the most fundamental pillar of the Constitution.
To reverse this legacy of centralised authoritarian state, the 2010 Constitution ‘devolved’ fiscal, political, and administrative powers to 47 counties. Devolution sought to counter the centralization of political and economic power that had disadvantaged and marginalised many regions, communities, and individuals. Unlike in the pre-devolution era, when county-level political leaders owed their loyalty to national-level political and civil bureaucracy elites on whom they relied for patronage and access to the resources of the state, in the era of devolution county-level leaders must be responsive to county-level pressures. This is partly because the 2010 Constitution guarantees that at least 15% of yearly national revenue must be allocated to the counties. This guaranteed monetary allocation and the creation of executive and legislative elections at the county level provide insulation from national-level politics. The 2010 Constitution also created a Senate, as part of a bi-cameral parliament, to protect county affairs at the national level.
The establishment of devolved governance has played what, in retrospect, was a one-time role in reducing the high-stakes winner-take-all nature of Kenya’s first-past-the-post election system. The 47 counties created a new and important arena of political contestation that de-emphasized the zero-sum competition over the national Presidency that has characterized Kenyan elections since the introduction of multi-party politics in 1991. The design of Kenya’s devolution was, in part, intended to accommodate the multi-ethnic nature of Kenya’s politics. Devolution ensures more ethnic groups’ political inclusion, representation, and power sharing in Kenya’s 47 counties than is possible within a centralized state. A primary goal of this devolution scheme was to temper competing claims of access to national power and resources based on ethnic loyalties. Devolution was regarded as an antidote to ethnic-based politics and a mechanism for addressing and remedying grievances relating to the uneven allocation of government resources.
Allocation of financing was an important tool adopted in this new constitutional framework to address regional imbalances in the allocation of development financing. In addition, Kenyans supported a devolved system of governance to re-channel the distribution of resources in favour of certain ethnic groups and against others, and in so doing, to serve as a mechanism to redress poverty and inequality. Devolution is the core anchor of local self-rule, giving county governments meaningful authority over local matters. The 2010 Constitution sought to achieve these objectives by promoting the participation of more people in the governance of the country, ensuring a framework of equitable access to national resources, promoting inclusiveness of ethnic and regional diversities to accommodate as many ethnic communities in their own governance; as well as safeguard community rights. Devolution is now an indispensable and irreversible aspect of Kenya’s governance system.
The cooperative nature of Kenya’s devolution scheme is captured in the 2010 Constitution’s recognition of ‘sharing and devolution of power’ as an important national value and principle of governance. Kenya’s devolved governments do not exercise decentralized power delegated to them from the national level because, under the 2010 Constitution, sovereign power is also exercised at the county level. Rather, they exercise sovereign power delegated directly by the people of Kenya. This is where the Governors and Senators miss the fundamentals underlining the devolution. They still act and govern as though they are accountable and appendages of the National executive and civil service at the national level.
Kenya’s system of devolution is one of shared sovereignty between the national and county governments. Unlike in a country like the United Kingdom, where devolution is asymmetrical, in Kenya, the devolution system is symmetrical because all 47 counties are granted similar institutional arrangements and powers. The devolution scheme reflects the cooperative model of devolution, which requires the national and county governments to respect each other’s ‘functional and institutional integrity’ and ‘assist, support and consult’ each other, in addition to ‘exchanging information’ and ‘coordinating policies. The 2010 Constitution requires that each level of government ‘shall perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level.’ The counties were established as equal and interdependent organs, rather than entities subordinate to the national government. 60 National-county relations are conducted through processes of consultation and cooperation.
Devolution has taken root as a new system of governance in the country. The fact that the national government has retained vestiges of the provincial administration and declined to dismantle the sector-wide state corporations/parastatals performing devolved functions indicates the continued discomfort of the national government over giving up its system of centralized governance fully. Further, the combined force of powerful national executive, National Treasury, and National Assembly to attack, smear, and blockade devolved governments from gaining root by withholding funds, refusing to fully let go of devolved functions, and enacting recentralizing laws remains the biggest threat to devolution. Therefore, the delayed disbursing of revenue share is only part of the bigger structural problems facing devolution. Key among them being a national government and the National Assembly’s unwillingness to accept devolution is both a political and constitutional reality.
Finally, Governors have contributed significantly is the erosion and undermining of devolution by failing to grasp the fundamentals of devolution underpinned in the Constitution. They mainly invest in political optics and pleading with National Government instead mobilising and galvanizing popular political support from Mwananchi to force National Government to accede to devolution as established by the Constitution. Further, perennial warfare between governors and senators only helps the national government campaign against devolved governments. They see each other as competitors instead of being the core guardians of devolution. Governors must come to terms with the fact that they exercise people’s sovereignty as equal to the National Executive.
Senators have abandoned the core constitutional responsibility of protecting counties and their interests at their national level. They spend most of their time trying to micro-manage County government rather than focusing on the bigger picture of entrenching devolution. This has allowed the National Assembly to keep engaging in nefarious legislative, policy, and fiscal agendas to cripple devolution. It must not be forgotten that National Assembly has flatly refused to approve the audited accounts as a strategy to keep counties’ revenue share at the minimum. (
— The Writer is Transitional Justice and Human Security Fellow and Director, International Center for Policy and Conflict @NdunguWainaina.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
