One of the key reforms of the Constitution of Kenya is the establishment of devolution through county governments. Primarily, it is a response to the enormous centralisation of state power at the centre and in the presidency, accentuated by the attrition of local government.
For many people, the main contact with government has been with Provincial and District Commissioners and Chiefs, ultimately responsible to the President. On a more political level, the centralisation of power, generally exercised by a small coterie of people around the President, marginalised communities and regions that were perceived to be opposed to the regime.
Economically, enterprises and employment tended to concentrate in Nairobi, and led to migration from rural to urban areas.
For an understanding of the reasons for devolution, one cannot do better than read Article 174.
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They include democratisation, accountability, increased checks and balances, national unity, recognising diversity and protecting minorities, economic development and access to services, and equitable sharing of national and local resources.
This is an ambitious agenda, carried over from the CKRC and Bomas drafts, but without the same institutional arrangements and devolved powers.
However, some of these goals can be achieved even within this more restricted framework if the right decisions are made about the structuring of counties and their relationship with the national government.
Devolution is partly a matter of law and partly of conventions and practice. It will come into effect only after the next General Elections, when the county assemblies and governors will be elected.
The complete implementation will take place gradually, but it is expected that devolution will be fully operational after five years.
As the system is new and we do have some time to work out the detailed legislative and administrative arrangements, it is critical that these are designed to achieve stipulated objectives.
There is enough flexibility as to the evolution and operation of the system. Powers and money will be transferred only when the capacity to handle them has been established in the county.
County governments could agree that the national government should do certain things for them, or the national government could agree that the counties, or those of them with the capacity, should take over certain national government functions.
Phased in gradually
Laws can be made to give new powers to the counties. The system is to be phased in so that functions are transferred gradually to counties that can handle them, and not all counties need get all the powers at the same time.
Although the national government can make laws about everything, including topics on which counties may make laws, national government law will take precedence only if there is good reason for having national rather than county laws.
Flexibility is undoubtedly a good thing, but it requires complex systems of negotiation and decision making.
The constitution recognizes this and provides for co-operation between the national and county governments, with a critical role for the Senate as a sort of negotiating forum at the same time as it protects the interests of counties.
There are also mechanisms for ensuring that counties observe the rights of all the residents and carry out administration consistent with the values of devolution.
On the other hand, it is important that the national government realises that devolution is an essential component of the new system of the state — and counties have constitutionally guaranteed status and powers — and resist the temptation to dictate to them.
Despite this positive framework, there are serious anxieties about devolution. Paradoxically, some are worried about too much powers being handed over to counties, others (like us) that too little power is guaranteed.
But we have noted above the flexibility in this regard. Some fear discrimination against minorities within the counties, and the tendency of the dominant ethnic group to appropriate all county offices and resources.
Groups who have migrated into a county in recent times are fearful even of eviction. We must take these anxieties seriously.
The constitution does deal with them. All citizens have equal rights where ever they live, and the Bill of Rights has a strong system of enforcement.
Some autonomy can be provided for minorities located in areas where they are numerically predominant through local government. Minorities are to be proportionally represented in county assemblies and the executive.
Ultimately, there is authority for the national government to intervene in a county which violates the rights of its residents (under the category of “exceptional circumstances”), after enquiry by an independent commission.
Increase national unity
While fear of discrimination is understandable, it is important to remind ourselves that an important purpose of devolution is to increase national unity, not threaten it.
Leaders at the county level, as much as at the national level, have constitutional obligations to promote inter-ethnic harmony, social justice and the protection of human rights.
Groups which have suffered in the past due to vindictive policies of the central government will now find it easier, through the county system, to feel secure, participate in public affairs, negotiate with the national government and integrate politically.
If this happens, national unity will be strengthened. And this will be assisted by the requirement of equitable distribution of resources, and special help to the less developed counties.
There are also anxieties about the financial implications of devolution. The costs attributed to devolution are not new costs: we already have budgets for districts, including for county councils, some items of the existing central government budget will be transferred to counties as the functions are transferred, and we already have some funds which are regularly earmarked for districts.
Hopefully, the Salaries and Remuneration Commission will establish realistic salaries for public officers, and the law might consider providing only allowances, not salaries, for members of county assemblies, as their functions will not call for full time commitment — an approach favoured by the CKRC.
But, more importantly, there is no “zero sum” arithmetic in these matters. Devolution has the potential to open up new opportunities for economic development, and the rise of new growth centres as county governments feel the pressure to deliver to the new electorates.
We need to put devolution in the context of the new constitution. The constitution is about democratization, with the people at the centre of the political system. Devolution can be very empowering, as the example of India and several other countries has shown.
But it will not happen automatically, and we need to remind ourselves how horribly wrong directions county governments can take. Those who are already savouring prospects of governorships, senatorships, and other lucrative offices should remember that the new constitution is about service to the people, the integrity of leadership, the criminalization of incitement to ethnic hatreds, the promotion of fair administration, and ultimately inclusion of all. The constitution also calls upon the people to see to it that the leaders they choose respect these values.