REFORMING CONSTITUTIONAL REFORM
Recent proposals by members of the National Assembly to amend the 2010 Constitution in fundamental ways raise issues that are deeply troubling. The proposals, as I understand them, would reduce the size of the Assembly from 290 seats to 140, eliminate the special seats reserved women representatives of each county, reduce devolved units of government from 47 counties to ten and eliminate nominated seats.
These proposals can be debated on several levels. The fiscal cost of constitutional democracy, raised by the MPs, is clearly non-trivial and worthy of examination. I am in no position to weigh in on the issue from that perspective, although it would be interesting to review the extent to which this question was addressed by the Committee of Experts. In addition, it may well be that a debate is in order on whether and how it is necessary to consider fine-tuning aspects of the Constitution reform, the need for which may have come to light in the process of implementing the Constitution’s many comprehensive reforms. Amendments proposed by the two MPs are fundamental and deserve attention despite their fiscal implications. Is it timely to consider whether to amend a still newly minted constitution in such respects? How should it be done?
What could justify essentially gutting Devolution only a year after the first elections installed these new elected and appointed officials? The question of how long, like good wine, constitutional provisions should be allowed to mature before amendments, is an aspect of post-Cold War democratization that perhaps needs more consideration than it has received. Constitutions are meant to be bedrocks of stability, and nowhere more importantly weak and vulnerable states. What are the risks entailed in major constitutional surgery a year after these provisions have been implemented and but a few years after the worst political crisis in the country’s history?
The risk is deeper still because Devolution is like a lizard whose colors may change in response to its environment.
Devolution is an umbrella concept that covers a spectrum of options. At one end of the spectrum, it may mean little more than deconcentration of decisionmaking. As deconcentration, devolution would mean leaving only some implementation details to local units of governments. In particular, deconcentration would normally leave most if not all budgetary authority in the hands of the central government.
At the other end of the spectrum, devolution might be confederalism, in which virtually all authority would remain in the hands of local authorities, leaving central government with very limited functions. The Articles of Confederation, the first US constitution, is one historical example. The Ethiopian constitution is another example, at least in theory, in which each region, and even sub-region, possesses the authority to seek independence by certain specified procedures.
The Kenya Constitution strikes a balance between the extremes of near autonomous sub-units of government and virtually unfettered central government rule. Like the German constitution, Kenya’s constitution established a second house of parliament at the national level with the specific purpose of protecting the interests of the counties in national policy making. Indeed the members of the German Bundesrat are chosen by the German state governments, which was also the case originally with the U.S. Senate, now directly elected by the people of each state since 1933.
There have been at least two quite contrasting rationales for these varied forms of devolution. In each instance, the rationale was to escape repetition of a profound national political trauma. On the one hand, in the case of Ethiopia, the architect of that country’s confederal constitution, the late Meles Zenawi, explicitly sought to forestall the possibility that other regions brought into the country by its early 20th Century emperor, Menelik II, would try to secede as Eritrea has successfully done. Indeed some within the Oromo Liberation Front have harbored that idea. By contrast, under its military rulers, Nigeria created 36 state governments to break up the ethnic cohesiveness associated with the eastern, western, and northern regions during colonial rule.
On the other hand, more common has been instituting devolution with the objective of preventing unbounded autocratic rule by a country’s ruler. The US wanted no more errant rule by Britain’s King George III, Germany sought to eradicate the possibility of any return to a Hitler, and, indeed, Ethiopia sought to liberate itself from the dictatorship of Mengistu Haile Mariam. Majimbo was written into Kenya’s first post-independence Constitution at the insistence of European settlers and smaller communities fearful of impending majority rule under Kenya’s first president.
Devolution has been a centerpiece of the 2010 Constitution for Kenyans to curb corruption as well as authoritarian rule. A companion objective has been to bring government closer to the grassroots in order to facilitate popular political participation. In addition to being ends in themselves, both purposes served a fundamentally important third objective: to establish rules of the game that would restore for all Kenyans their sense and commitment to being members of one political community, their ethnic and regional affiliations notwithstanding. Increasing political participation by women, through the 47 set-aside seats in the Senate, served all these purposes in addition to being an end in itself.
Debate that will ensue to the extent these amendments receive serious consideration may well focus on their financial implications. Inescapably, however, the implications of any such debate will be far broader and deeper. The outcomes of this debate will have important consequences for the maintenance of Kenya’s existing democratic progress, let alone on preserving democratization momentum.
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