DR Tom Odhiambo
There is no doubt that devolution was worth having. Previously sleepy village towns seem to be thriving. A journey to different parts of Kenya reveals changes that would not have been imaginable under the “centralised” governance of the last decade. There are enough signs that the devolution of government has gone beyond the Constitution. On the ground, in mashinani at the least, for the very first time many Kenyans see, feel, argue with, and most importantly, participate in the life of their government, even if it is merely at the local level.
Kenyans must protect and cultivate institutions and practices that will guarantee them the growth of devolution. At least that is the message I felt John Mutakha Kangu offers in the book, “Constitutional Law of Kenya on Devolution” (Strathmore University Press, 2015).
This is a book about what the Constitution of Kenya says of, demands from, justifies and guarantees about devolution for Kenyans. This is a book for lawyers and those who study jurisprudence. But it is also the kind of book Kenyans need to read; for it demystifies some of the fables about devolution that are commonly told around dinner tables, at the market, in chamas or clan association meetings, in newspaper columns, etc, in this country.
Mutakha Kangu makes it easy to read his book because he divides it into twelve sections including the introduction, interpretation of the devolution provisions in the constitution, history of devolution, values, objectives and principles of devolution, governance structures, functions and powers of the different levels of government, financing counties, supervision of county governments, intergovernmental relations, the senate and transition to devolved government. One can choose what to read and what to ignore. But one can as well read the whole book in these bits and pieces because they are further subdivided into smaller bits that run sometimes for just a page.
But it is the substance of the book that should interest Kenyans. For, although the Constitution guarantees Kenyans devolution of government, the relationship between various arms of the government of Kenya is still very confusing. There are too many grey areas that need clarity on who does what, how, when, why and with what consequences between the central government and the counties. The media is full of reports about the clash between governors and the executive, parliament, the courts, and the senate over the functions, the limits of their powers, access to and use of resources etc, all the time.
This is why a study of the magnitude of “Constitutional Law of Kenya on Devolution” needs to be translated into accessible language and disseminated to the public. To an extent, Kangu’s language avoids too much legalese. But much of the book is bogged down by reference to and use of the language that is more suitable for the law class and the court room. There is no doubt that the first audience imagined by Kangu is the legal fraternity. Indeed, Kenyan law scholars and those interested in the law curriculum will find this book a worthy addition to their libraries.
Yet, it is what I would call the small print in “Constitutional Law of Kenya on Devolution” that I found compelling. By small print I mean the “conclusion” sections of each chapter in the book. For me, as a lay reader, I found these sections to carry the author’s critical thoughts on the Constitution and devolution in Kenya. For instance, the conclusion for the General Introduction says, “Although devolution in the Kenyan context need not be labelled a federation, what is clear is that it is not mere decentralisation. The system has quite a number of federal features which are entrenched in the Constitution and cannot be changed on the whim of the national government.”
One hardly hears such a powerful argument in public discourse in Kenya today. But wouldn’t it be worth speculating – even if it is for mere intellectual reasons – that these very same “federal features” may, in future, ignite demands for federalism, considering the unwillingness of the central government to recognise that “all sovereign power belongs to the people of Kenya?”
The conclusion to Chapter Two of the text is on the “Principles and rules for the interpretation of the Constitution and Bill of Rights”. Here, Kangu raises what is a very contested subject between those who still desire to centralise power and those who wish to governance to the grassroots. He argues that “While county-empowering provisions must be interpreted liberally, broadly and generously in favour of the counties in order to give full effect to the objectives and purposes of devolution, devolution intervention and limitation provisions must be interpreted narrowly and restrictively in order to restrain national government and create space for the county governments and the system of devolution to take root.”
Kangu elaborates that the courts must moderate the relationship between the two entities. This is an argument that is rooted in the process that led to devolution. It is a proposition that seeks to defend the independence of county governments to govern and pursue local development without undue interference from the national government. For those familiar with the history of Kenya, they would understand why such an argument is fundamental to the realisation of the dreams of devolution.
Constitutional entitlements
On a subject such as financing of the county governments, without which they would collapse, Kangu makes a conclusion that fundamentally questions the currently prevalent argument that one or the other region of the country must “work” with the government in order to enjoy maendeleo. He writes, “… although the national government has been assigned revenue raising powers over the most important and lucrative tax bases, the revenue generated accrues jointly to national and county governments, which must share it. Thus, the transfers from this revenue to county governments are not discretionary donations by the national government, but constitutional entitlements that must be determined in an objective manner and not on the basis of political patronage.”
In other words, state funding for any part of the country is a constitutional right and it shouldn’t matter whether a county voted for the party in office or not. Also, this argument should be pushed to its logical conclusion, which is that considering the revenues from the counties are what ultimately ends with the exchequer, why does the national government still have control over a larger share of the “national income”?
I would strongly recommend the chapter on “Supervision of county government affairs” for anyone wishing to contest for office in the counties. For, although the constitution is quite clear on how the national government should monitor and supervise the county governments, with the “powers … expressly and sufficiently circumscribed and constrained to avoid abuse and not detract from the principle of distinct and autonomous county government”, we have already seen more than enough examples of the national government’s overbearing attitude towards counties, including the silly argument about whether governors should “fly flags” or on the process of “impeaching” a governor, etc.
I think that the significance of “Constitutional Law of Kenya on Devolution” is in Mutakha Kangu’s efforts to clear the cobwebs that normally enmesh legal language, in this case in relation to how the constitution envisages the working of the constitution, and also in relating the case of Kenya to that of South Africa, which has a fairly devolved government but which is not much known beyond the country. In other words, Kangu is suggesting that as Kenyans experiment with devolution, there is experience from elsewhere in Africa from which they can learn.
The writer teaches literature at the University of Nairobi; Tom.odhiambo@uonbi.ac.ke
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