Significance of devolution

Though limited in some ways, devolution represents a major transformation of the state and undoubtedly, in course of time, of society. It reverses the system of control and authority established by the colonial powers and perpetuated by successive presidents. Two major, interrelated, defining features of that system were the centralisation of power in the president and the battery of state coercive power.  Through devolution, the new constitution deals to some extent with the first feature, but it is clear that its provisions to cure the second have been not been honoured by the government. The struggle for the dispersal and sharing of state power on a regional basis started before independence. Devolution opens the prospects of fundamental, progressive changes in politics and economy, but these positive changes are not guaranteed. Devolution has been a controversial subject, and it cannot be said that the constitution, any more than the Bomas draft, provides a carefully thought out scheme. However, the best option for Kenyans now is to make it work in accordance with the spirit of the constitution—and the wishes of a significant majority of the people. 

What is devolution

First a word about what devolution is. It is a system under which certain governmental powers are exercised by the  counties, not by the national government, and through  institutions elected by their people,. Counties can make law about, and administer these matters. They have resources, from the national government and those they raise in the county. The authority and institutions of the counties and their relationship with the national government are established in and protected by the constitution. In this way devolution is an integral part of Kenya’s constitutional system. No changes can be made to it except by an amendment of the constitution. Amendments will require the approval of two-thirds of all the members of the National Assembly and the Senate (voting separately) and support in a referendum. 

History

The movement for devolution was prompted in large part because of the centralisation of the state, particularly the system of provincial administration (PA). PA was the bedrock of colonial administration: directly under the control of the governor, the PA dominated other governmental agencies in the field. It was responsible for law and order, and so had greater authority than even the police. The Administration Police were an essential component of the PA, and like it, directly accountable to the governor. The long arm of the PA reached from the provincial capital to small villages. The absence of a law on the PA meant effectively that there were no restrictions on its activities, although in this respect it was not much different from other colonial agencies. The provincial commissioner was without doubt the most powerful person in the province, as the district commissioner was in the district. 

Just before independence there was a movement (majimbo) for the transfer of significant powers to regions, largely based on provinces. A primary reason was to eliminate the PA system. The plan was that central government would discharge its functions in the regions through regional authorities.  However Jomo Kenyatta and his close associates did not like this sharing of power and within a year repealed majimbo (after suitably bribing the members of the Senate). In due course the authority of the PA was fully restored and Kenyatta made as much use of the PA as had Governor Baring during the emergency. The PA along with administration police,  remains the most powerful arm of the government, indispensable to presidential rule—hence the dispute over the creation of county commissioners (to be discussed in another article).

A key trigger for the fight of the people against Moi was the abuse of the enormous state and economic power that had been centralised in the office of the presidency. A major demand during the struggle was the dispersal of power, both vertically and horizontally. Devolution was adopted as an objective in the famous Safari Park national conferences in the 1990s. The Constitution of Kenya Review Act 2000 required the CKRC to consider people’s participation through the devolution of power; respect for ethnic and regional diversity and communal rights including the right of communities to organise and participate in cultural activities and the expression of their identities. It was to review the place of local government, the degree of the devolution of power to local authorities, and options for federal and unitary systems.

What the people told the CKRC

Wherever the CKRC went, it noted widespread feelings of alienation from   central  government because   of  this  concentration  of  power  in  the  national government,  and  to  a  remarkable  extent,  in  the  president.  People felt marginalised and neglected, deprived of  their  resources;  and   victimised   for  their  political or  ethnic  affiliations.  Provinces or districts which did not support the president were penalised in terms of development and resources. People felt  that  under  both  presidential  regimes,  certain ethnic groups had been favoured, and others discriminated against. There was particular resentment  of  the PA which was seen  as an extension  of the  president’s  office, and  of  the arbitrariness  and   abuse  of  power   by  its officials. Many had doubts about the  legitimacy  of  the  administration  police,  wanting  forms  of community  policing  at  local  levels. Local government  had  lost  its  authority  and  had  been  deprived  of  financial  resources  since independence.

They  considered  that  their  problems  arose  from  government  policies  over which  they  had  no  control.  Decisions were made far away from  them.  These  decisions did not reflect the reality under which they lived, the constraints and privations which they suffered. They had lost access to markets for their agricultural products because roads had  been  allowed   to  fall into disrepair.  Clinics did not have essential medicines.

Land   disputes  were   rampant,   and   land  registries far  away,  leading  to alienation  of  their  land  that  they  could  neither  comprehend  nor  do  much  about.  As their  poverty  deepened,  they  could  see  the  affluence  of  others:  politicians,  senior  civil servants,  cronies  of  the  regime.  Almost everywhere the people wanted the state restructured. Most asked for the devolution of power to local levels and greater role for community organisations.

Constitutional Proposals for devolution

CKRC and Bomas

CKRC established detailed proposals for devolution, beginning its with objectives, and covering powers and institutions of devolved units, and their relationship with the national government, including funding for devolved activities. Several matters of detail were left to be dealt with in legislation. But it did propose structures right down to village level.

The proposals were received favourably on the whole by Bomas delegates (even though some groups were opposed in principle to the idea of devolution, including Kibaki and his ministers). No disagreement was expressed with respect to the objectives of devolution. The major disagreement was on what should be the principal unit of devolution.

One group favoured the district, the other the region. The CKRC had chosen the district but found some co-ordinating role for the province. At Bomas a compromise was struck by giving provinces somewhat enhanced powers. Bomas accepted CKRC proposal to abolish the PA (but not administration police). However, Kibaki’s government sabotaged the draft as is well known,producing what is known as the Wako draft which was offered to, but rejected by the people, in a referendum in 2005.

Wako Draft

The Wako draft omitted altogether the concept of “devolution”, reverting to “local government”. It proposed only one sub-national unit—the district. Districts would have law making powers (though not as many as in the CKRC or Bomas drafts). But the national government could override district laws even if on a subject under  the district list.

There was little detail about  how district authorities would be constituted. The Wako draft rejected a second chamber to safeguard the interests of districts. Nor would there have been any provinces, which might have acted as some kind of buffer between the centre and districts.

There was no financial allocation to districts. There would have been  112 districts: so small that they would inevitably  have had limited resources and been unable to stand up to interference by the centre. Nor did it abolish provincial administration, or the administration police (which presumably would have operated as arms of the President’s Office). The creation and dissolution of districts would depend ultimately on decisions of the President. Overall, districts would have been little more than glorified local authorities. It is widely believed that the elimination of devolution was a primary cause of the rejection of the Wako Draft.

2010 Constitution

The 2010 Constitution largely followed the Bomas scheme. The Committee of Experts was faced with the same dilemmas as had vexed CKRC and Bomas, namely the levels and numbers of devolved units. At first it supported the idea of 3 levels (unlike the 5 of the CKRC and 3 of Bomas). But later it opted for a single lower level to avoid a “complex system”. The units at that level were labelled counties and their boundaries largely followed district boundaries drawn as part of independence arrangements. 

Objectives of devolution

A special feature of devolution in Kenya is the close attention given to its objectives and principles (in line with the general approach of the Constitution to the exercise of state power). In many countries devolution is seen merely as the sharing of power, neutral perhaps as to how that power would be exercised. In Kenya devolution was seen as necessary to achieve various values and principles. To some extent, the objectives can also be seen as a response to the dire consequences of devolution that critics predicted (such as secession, oppression of minorities within the county, the breakup of the country, expense and lack of capacity). 

The best way to understand the objectives of devolution is to examine Articles 174  and 175 (which have remained unchanged from the CKRC draft).  In addition, county governments are bound by the constitutional principles in Article 10 and chapter 6 on integrity. Article 174’s 9 objectives can be consolidated into the following principal objectives (with some overlap between them).

Diversity

A major reason for devolution ever since before independence has been the recognition of Kenya’s diversity. Article 174 places special emphasis on self government, particularly the rights of minorities and marginalised communities, and other groups, to manage their own affairs and development. Article 175 requires the promotion of gender equity and equality in counties.

National unity

Throughout the Constitution diversity and national unity are balanced, almost two sides of the same coin. So it is with devolution. The former centralised system under a powerful presidency tended to ethnicise politics and politics of exclusion. Now devolution provides many sites of power, reducing the danger of exclusion. The assumption is that through democracy, recognition of diversity, and forms of self-government, all communities will feel part of the country, with increased loyalty. The rules about inter-dependence and co-operation between the national and county governments should strengthen national unity. The emphasis is on inclusion of all groups at both national and county level.  

Democracy and accountability

A major deficit of democracy in Kenya has been the absence of people’s involvement in politics and policy discussions, or their ability to demand accountability of the government. Even in the five-yearly elections their horizon has been circumscribed by tribalism. The location and exercise of powers about the everyday needs of the people should provide the foundations of participatory politics. Devolution creates more opportunities for the people to choose their leaders, and great expansion in public participation. Democracy should also be strengthened by separation of powers and checks and balances through new centres of authority. People   in  rural  and  urban    areas  will be  able  to  decide  for  themselves   (or  influence decisions) on many matters of local concern and to  participate in greater number of debates, and elections. Governments and officials at closer proximity to them may become more responsive and be compelled to be more accountable. Ordinary people will be able to demand information and accountability, which at the national level is left to a few NGOs.

 Promoting economic and social development

  Devolution is expected to lead to more  rapid  and  balanced economic and social  development. The centralised   system,    with   the  concentration of all government institutions  and  decision making    in  Nairobi,  led  to  the  concentration   of  economic activities  in  the  capital  city  area,    to  uneven  development  and        disparities  of  economic  opportunities. This resulted in the impoverishment of            many regions and communities and the drift towards urban areas. With new governments in counties,  there will be greater   incentives   and   opportunities    for  economic    and   social  development  throughout the country. 

County governments will actively promote growth and seek to achieve a high degree of self-sufficiency, and respond to local needs and circumstances. People will enjoy easier availability of services There will emerge new   centres   of  growth,   in which  people  have  opportunities for investment and employment. Efficiency should come from local knowledge. And the incentive to create capacity and skills locally lies in the rule that devolved functions will be transferred to a county only if has the capacity to discharge them. And counties will no doubt compete with each other.

Promoting Equitable Distribution of Resources

There  has  been  much  debate  as  to  whether  devolution  will  lead  to  a  more   equitable                   distribution of  resources;, some people think a centralised government is more  likely to achieve this. But in Kenya many counties outside three or so major urban areas have done poorly, and even in urban areas the main beneficiaries are often not the local people. The Constitution now requires the equitable sharing of national and local resources throughout Kenya.  The scheme of the financing of counties is biased in favour of the less developed areas—though perhaps not sufficiently so.

Achieving objectives

These values and objectives are woven into the fabric and structure of devolution and in the relationship between the national and county governments. But it is no good being too starry-eyed about devolution. The global record shows some significant successes and some spectacular failures. Circumstances are more propitious than they were for majimbo. That was a defensive measure, born out of fear, to secure for smaller communities  some powers  of  self-government.  In Bomas  the  demand  for  devolution  was  for  positive  reasons:  to strengthen national  unity, protect diversity, and reinforce democracy. At independence  there   was  secessionist activity in one part of the country. At  Bomas  there  was  universal  acceptance  of  the  undivided sovereignty  of  Kenya,  and  a  deep  commitment  to  the  concept  of  a  single  and   equal   citizenship for members of all communities. This devolution has been negotiated among Kenyans over a long period and is the result of compromises—not an imposition by a departing colonial power. And unlike with majimbo, people of all counties have welcomed devolution and are looking forward to participating in its affairs