BY NLM WRITER
At this year’s Devolution Conference, Raila Odinga urged the country to consider introducing a third tier to the government structure. 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.
The objectives of devooution, which are also its spirit, are to promote democratic exercise of power, foster national unity, recognise communities’ right to manage their own affairs, give powers of self-governance to the people and enhance people’s participation in county governance, to decentralise state organs and ensure equitable distribution of resources in Kenya. The spirit behind the letter of the law is well worded but Kenyans have summarised it to “let us all ‘eat’”.
Devolution was born out of the majimbo (federalism) debate that was part of the push for changing the constitution in the nineties. The idea was to go back to the government structure that was proposed at independence and advocated by KADU.
In the 90s, the civil society, realising the futlity of trying to dislodge Moi, determined 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’, he explains how the centrists pushed away federalism from our laws. While the independence constitution 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 its return 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 they would be dominated by the Luo and Kikuyu. Federalism, with 8 regional presidents, was thus a way of safeguarding their interests against the big tribes who were pushing for a centralised government.
In the 90s, the 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 eight regions were to be retained then, Kikuyus would 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, as well as their sidekicks like Kiraitu Murungi, pushed for constitutional change but skirted 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 May 13, 2001. The CKRC Draft Constitution, commonly known as Ghai Draft, was ready by 2002 but Moi dissolved Parliament prematurely in October before it considered it, ahead of the 2002 General Election in December.
When Moi handed over power to NARC leader Mwai Kibaki in 2003, a cabal of new generation of Mt Kenya Mafia put constitutional change on ice. Kiraitu Murungi, then minister for Constitutional Affairs, had the audacity to say the push had only had the objective of removing Moi from power, which had happened.
In 2005, the Bomas Draft was ready but the PNU side of NARC led by Mwai Kibaki sent Attorney General Amos Wako to Kilifi to re-draft 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 November 2005 Referendum. In the end 58% of Kenyans voted against it, and the change-the-constitution push was shelved as politicians went for 2007 elections.
The 2007 elections became a blessing in disguise for the clamour for constitutional change. Mwai Kibaki was controversially sworn it at night and the next day Kenya began burning. The post-election violence forced Kenyans to take constitutional changes seriously, an effort that culminated in the promulgation in 2010.
Before the political class agreed to the draft, the basis of which was the Bomas Draft, PNU 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 would transform the lives of Kenyans. The reality, eight years later, is very different. This is why he is pushing for another round of reforms.
We can eat together
Raila meant to give 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. 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 have not bothered to conceal this fact, as some have 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 do not even make economic sense and the leaders appear lost in the details of governance.
Meanwhile, no county collects as much revenue as did the municipal and county councils in the former dispensation.
Raila’s proposal for a third arm of government, and referred 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 the fear the Kikuyu have about Rift Valley.
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 they cannot merge. Kisii can merge with Nyamira, Homa Bay with Migori, and Kisumu with Siaya; the latter is largely a rural county and merging it with Kisumu would give it an urban and industrial edge, just like Kericho will do to Bomet.
The former Eastern province can give us Lower Eastern – Makueni, Kitui and Machakos. As well, Eastern can have Meru, Tharaka-Nithi and Embu while Isiolo and Marsabit can form Upper Eastern.
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; those who don’t buy in should be given a period to prove that their counties can sustain themselves. (
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