How do we assess whether devolution is headed for success rather than failure?
The place to begin is Article 174 of the Constitution, which sets out the objectives of devolution. Looking at that Article and history (back to the CKRC) we can see that the main objectives were to: (a) break up the centralisation of state power; (b) inculcate a sense of Kenyan identity and strengthen national unity by recognising diversity; (c) equity in allocation of resources (d) justice for marginalised communities and regions; (d) enhance democracy: by dispersing and separating powers and developing participatory practices at local levels; and (f) promote local social and economic development and facilitate delivery of services.
The people wanted a fundamental re-orientation and restructuring of state and society. Devolution was to be a major means for constitutional and political reform, a radical departure from past practice. It was based on ideas popular in literature by scholars and organisations like the World Bank of what devolution can achieve.
But there are sceptics; one cynic has said that for every proposition in favour of devolution there is a counter-proposition.
Some fears and apprehensions have been: (a) counties, many dominated by one ethnic group, may threaten rather than strengthen national unity; (b) minorities in counties dominated by one group would be more vulnerable to discrimination than when authority is exercised at the centre; (c) the system would massively increase expenditure on government; (d) this would lead to worse rather than better services; (d) leadership at county levels is bound to be of lower quality than at the national level; (e) there are likely to be considerable tensions, even conflict, between institutions of the national and county governments; (f) this tendency would be reinforced by an unclear division of powers between the centre and counties; (g) the system of government would be more complex and harder to administer; and (h) the Kenyan political cultural of pomposity, tribalism, corruption, and waste of public resources would simply be devolved.
The Constitution makers tried hard to rectify the failures of government at the national level: lack of accountability, of popular participation in national decision making, corruption, and of inclusion, and a general failure to deliver what the people needed, through the national values, participation requirements, Chapter 6 (integrity), changes to the electoral system etc. They also put in place new institutions to set new standards, hopefully uncontaminated by old, bad attitudes and practices. The Supreme Court is one of those institutions. Devolution, too, was supposed to be a new beginning: it was not supposed to be “business as usual” but just at a lower level – it was to be an improvement on the past.
Discussing the reality so far
In January 2014, the Katiba Institute organised a panel discussion on devolution at and with the Alliance Fran?aise in Nairobi. The panellists were Karuti Kanyinga, political scientist, Catherine Mumma Commissioner of the CIC, Micah Cheserem, Chair of the Commission on Revenue Allocation, and Yash Ghai.
The chair and interrogator was John Sibi-Okumu, actor, playwright and broadcaster. The views expressed on this occasion are woven into this section, but are not the only source for it.
It turned out that all the panellists were in a sense believers – and optimists. None was prepared to rubbish the idea of devolution, and all believed that there was a good chance that, over time, it would turn out to be generally a success.
They recognised that there were “challenges” of various types, but felt that some of them at least may turn out to have been teething problems—after all the system came into effect only recently, a number of new institutions had to be established in a short time, and resistance to implementation by the national government was expected.
So what did they feel were the positive aspects: in what ways is the glass “half-full” rather than “half-empty”? They could see signs in some counties of improvements in services, especially health.
One pointed out that over half of people recently surveyed thought that performance of the counties was all right, and even commented that now people in Mandera who used to ask “How is Kenya?” could feel part of the nation.
Another observed that discussion in the Council of Governors is focussed on issues not on party wrangling. And the county bodies are more inclusive, especially of women, than any past Kenyan elected bodies.
Some have suggested that the promise of devolution was a factor in the relative peace during the 2013 elections: people felt that evolution offered other things to focus on than just whether “our person” get elected to the presidency. Of course, if these hopes are dashed, future voters may not care so much about the county level elections.
Some developments we have seen in the last year may portend improvements in accountability at least at the local level. A governor has been impeached (we don’t want to discuss the pros and cons of the particular case).
If it means that someone who has been in serious breach of obligations is removed from office that must be a good thing – and will hopefully be a warning to others. Removal for reasons of political disagreement, manoeuvring for ethnic advantage, or spite would be a very different matter. Impeachment is, as they say, something of a sledgehammer, and should not be used to crack nuts.
Some developments have been less healthy. It was too much to hope that county governments would somehow be completely free of the besetting sins of Kenyan politics. We have seen extravagance, self-importance and self-interest, including Governors wanting to be “Their Excellencies”.
Relations between national and county government institutions have been sometimes rather hostile (rather more hate than love at present– see Conrad Bosire’s article, the last “Katiba Corner”) , in total defiance of the Constitution’s admonitions about governments conducting their mutual relations “on the basis of consultation and cooperation”.
It is particularly unfortunate that the Senate, created to protect the interests of the counties and the system of devolution, should be wanting to “show [counties] that we have power” as an anonymous Senator was quoted, and be threatening that more Governors will be impeached – a process that they may conclude but they cannot begin. The elaborate mechanism for resolving disputes is of little use if the issues are misuse of the powers by self-seeking individuals.
Some of the difficulties, the Alliance Fran?aise panel thought, stemmed from ignorance at high levels, or confusion, or fear on the part of public servants.
These problems can be sorted out; more serious are signs of persistence of corruption, greed and patronage, and indeed what sometimes seems like a multiple assault on implementation of the Constitution.
There are unfortunate legacies of the past: a panellist thought it had been a mistake to think about the old councils and councillors as models. Overall, panellists agreed that leadership is a major issue.
John Sibi-Okumu asked: were there weaknesses in the way the Constitution was drafted? The truth is there are. The case of the Senate versus National Assembly (about the role of the Senate in passing law about counties) revealed one weakness.
And the way powers are allocated to counties could have been clearer. Some misreadings of the Constitution seem wilful though: do counties really believe they have the power to tax (other than property rates and entertainments tax, which the Constitution clearly gives them)?
The constitution and legislation detail the structure and powers of counties, their entitlements, their authority, their responsibilities, and relationships with national government.
Neither national government and politicians nor county officials fully understand these matters. Familiarisation with the law and regulations is essential at all levels.
So are understanding, co-operation and co-ordination. The constitutional autonomy of counties must be respected by the national executive and legislature.
The mechanisms for settlement of disputes among counties and between them and the national government must be used, and the decision of these bodies (including the judiciary) respected. Participation of and accountability to the people must be effectively promoted.
The media, too, needs to understand devolution better. People rely on them for information: especially because they neither expect nor receive accurate information from leaders. Freedom of the media, enshrined in the Constitution, is there to give them the ability to inform.
Perhaps for the first time many people are seeing discussions about policy initiatives that affect their daily lives. Conflicts within counties are less about ethnicity than about general fairness and efficiency (because most people belong to one or two related communities), and livelier political debates are taking place at local levels.
National politics does not seem to focus much on issues, and the development issues that do attract attention must often seem remote to many people in the country.
And behaviour of county officers is subject to intense scrutiny, from within and without. Maybe it will be from within the counties that a rejuvenation of Kenyan politics and policies will come, and even of accountability, rather than from the national government, so mired in its old ways.
The place to begin is Article 174 of the Constitution, which sets out the objectives of devolution. Looking at that Article and history (back to the CKRC) we can see that the main objectives were to: (a) break up the centralisation of state power; (b) inculcate a sense of Kenyan identity and strengthen national unity by recognising diversity; (c) equity in allocation of resources (d) justice for marginalised communities and regions; (d) enhance democracy: by dispersing and separating powers and developing participatory practices at local levels; and (f) promote local social and economic development and facilitate delivery of services.
The people wanted a fundamental re-orientation and restructuring of state and society. Devolution was to be a major means for constitutional and political reform, a radical departure from past practice. It was based on ideas popular in literature by scholars and organisations like the World Bank of what devolution can achieve.
But there are sceptics; one cynic has said that for every proposition in favour of devolution there is a counter-proposition.
Some fears and apprehensions have been: (a) counties, many dominated by one ethnic group, may threaten rather than strengthen national unity; (b) minorities in counties dominated by one group would be more vulnerable to discrimination than when authority is exercised at the centre; (c) the system would massively increase expenditure on government; (d) this would lead to worse rather than better services; (d) leadership at county levels is bound to be of lower quality than at the national level; (e) there are likely to be considerable tensions, even conflict, between institutions of the national and county governments; (f) this tendency would be reinforced by an unclear division of powers between the centre and counties; (g) the system of government would be more complex and harder to administer; and (h) the Kenyan political cultural of pomposity, tribalism, corruption, and waste of public resources would simply be devolved.
The Constitution makers tried hard to rectify the failures of government at the national level: lack of accountability, of popular participation in national decision making, corruption, and of inclusion, and a general failure to deliver what the people needed, through the national values, participation requirements, Chapter 6 (integrity), changes to the electoral system etc. They also put in place new institutions to set new standards, hopefully uncontaminated by old, bad attitudes and practices. The Supreme Court is one of those institutions. Devolution, too, was supposed to be a new beginning: it was not supposed to be “business as usual” but just at a lower level – it was to be an improvement on the past.
Discussing the reality so far
In January 2014, the Katiba Institute organised a panel discussion on devolution at and with the Alliance Fran?aise in Nairobi. The panellists were Karuti Kanyinga, political scientist, Catherine Mumma Commissioner of the CIC, Micah Cheserem, Chair of the Commission on Revenue Allocation, and Yash Ghai.
The chair and interrogator was John Sibi-Okumu, actor, playwright and broadcaster. The views expressed on this occasion are woven into this section, but are not the only source for it.
It turned out that all the panellists were in a sense believers – and optimists. None was prepared to rubbish the idea of devolution, and all believed that there was a good chance that, over time, it would turn out to be generally a success.
They recognised that there were “challenges” of various types, but felt that some of them at least may turn out to have been teething problems—after all the system came into effect only recently, a number of new institutions had to be established in a short time, and resistance to implementation by the national government was expected.
So what did they feel were the positive aspects: in what ways is the glass “half-full” rather than “half-empty”? They could see signs in some counties of improvements in services, especially health.
One pointed out that over half of people recently surveyed thought that performance of the counties was all right, and even commented that now people in Mandera who used to ask “How is Kenya?” could feel part of the nation.
Another observed that discussion in the Council of Governors is focussed on issues not on party wrangling. And the county bodies are more inclusive, especially of women, than any past Kenyan elected bodies.
Some have suggested that the promise of devolution was a factor in the relative peace during the 2013 elections: people felt that evolution offered other things to focus on than just whether “our person” get elected to the presidency. Of course, if these hopes are dashed, future voters may not care so much about the county level elections.
Some developments we have seen in the last year may portend improvements in accountability at least at the local level. A governor has been impeached (we don’t want to discuss the pros and cons of the particular case).
If it means that someone who has been in serious breach of obligations is removed from office that must be a good thing – and will hopefully be a warning to others. Removal for reasons of political disagreement, manoeuvring for ethnic advantage, or spite would be a very different matter. Impeachment is, as they say, something of a sledgehammer, and should not be used to crack nuts.
Some developments have been less healthy. It was too much to hope that county governments would somehow be completely free of the besetting sins of Kenyan politics. We have seen extravagance, self-importance and self-interest, including Governors wanting to be “Their Excellencies”.
Relations between national and county government institutions have been sometimes rather hostile (rather more hate than love at present– see Conrad Bosire’s article, the last “Katiba Corner”) , in total defiance of the Constitution’s admonitions about governments conducting their mutual relations “on the basis of consultation and cooperation”.
It is particularly unfortunate that the Senate, created to protect the interests of the counties and the system of devolution, should be wanting to “show [counties] that we have power” as an anonymous Senator was quoted, and be threatening that more Governors will be impeached – a process that they may conclude but they cannot begin. The elaborate mechanism for resolving disputes is of little use if the issues are misuse of the powers by self-seeking individuals.
Some of the difficulties, the Alliance Fran?aise panel thought, stemmed from ignorance at high levels, or confusion, or fear on the part of public servants.
These problems can be sorted out; more serious are signs of persistence of corruption, greed and patronage, and indeed what sometimes seems like a multiple assault on implementation of the Constitution.
There are unfortunate legacies of the past: a panellist thought it had been a mistake to think about the old councils and councillors as models. Overall, panellists agreed that leadership is a major issue.
John Sibi-Okumu asked: were there weaknesses in the way the Constitution was drafted? The truth is there are. The case of the Senate versus National Assembly (about the role of the Senate in passing law about counties) revealed one weakness.
And the way powers are allocated to counties could have been clearer. Some misreadings of the Constitution seem wilful though: do counties really believe they have the power to tax (other than property rates and entertainments tax, which the Constitution clearly gives them)?
The constitution and legislation detail the structure and powers of counties, their entitlements, their authority, their responsibilities, and relationships with national government.
Neither national government and politicians nor county officials fully understand these matters. Familiarisation with the law and regulations is essential at all levels.
So are understanding, co-operation and co-ordination. The constitutional autonomy of counties must be respected by the national executive and legislature.
The mechanisms for settlement of disputes among counties and between them and the national government must be used, and the decision of these bodies (including the judiciary) respected. Participation of and accountability to the people must be effectively promoted.
The media, too, needs to understand devolution better. People rely on them for information: especially because they neither expect nor receive accurate information from leaders. Freedom of the media, enshrined in the Constitution, is there to give them the ability to inform.
Perhaps for the first time many people are seeing discussions about policy initiatives that affect their daily lives. Conflicts within counties are less about ethnicity than about general fairness and efficiency (because most people belong to one or two related communities), and livelier political debates are taking place at local levels.
National politics does not seem to focus much on issues, and the development issues that do attract attention must often seem remote to many people in the country.
And behaviour of county officers is subject to intense scrutiny, from within and without. Maybe it will be from within the counties that a rejuvenation of Kenyan politics and policies will come, and even of accountability, rather than from the national government, so mired in its old ways.
