Kenya's Devolution Squabbles

Constitutional experts and civil society organisations in Kenya are voicing strong concerns about moves to amend a system of devolved government that was only introduced in March. Attempts to revise the new system reflects highlighted mistrust between national and local tiers of government.

Governors were elected to Kenya’s 47 counties in the March general election. They were granted powers designed to enhance decision-making at local level and open up new economic opportunities across the country.

The governors run local administrations which oversee areas like agriculture, healthcare and public transport, and which have a right to raise revenue locally, for example through extra taxes.

National government retains control over education, security and policing, and strategic economic policy.

Following a troubled first few months under the devolved system, some parliamentarians are calling for the governors’ powers to be curbed, for instance by capping the percentage of national expenditure that they control.

Governors are heading in the opposite direction – are pressing for bigger budgets and more clarity on what powers they hold.

Experts say that it is far too early to be making changes to the new constitution, which only came into force less than three years ago following an August 2010 referendum that overwhelmingly endorsed the idea of devolution.

Lawyers who served on the committee of experts that drew up the constitution have urged both parliamentarians and governors not to forget the governance problems which led Kenyans to vote for change in the first place.

“This new clamour for constitutional amendment is completely unnecessary,” Dr Ekuru Aukot, who headed the committee of experts, told IWPR. “If there are disagreements [over interpreting the law], they should seek an advisory opinion from the Supreme Court. When we handed over this document, we were hopeful that it would not be touched for at least ten years.”

WHO’S IN CHARGE?

Some members of parliament accuse governors of being greedy and having skewed priorities, particularly when it comes to managing county budgets. A number of governors have come under fire for setting aside huge funds for entertainment, travel and building lavish residences while turning a blind eye to development and other local concerns.

Lawmakers say they want to retain control of money earmarked for community-level development projects, known as the Constituency Development Fund, which is now meant to be distributed to county administrations.

They argue that the money would still be devolved to the counties through them, but the issue has led to a conflict with the governors.

Parliamentarians also oppose the privileges granted to governors, such as being allotted eight bodyguards, diplomatic passports, permission to fly the national flag at their offices, and the title His or Her Excellency.

For their part, governors are pushing for changes to the constitution that they believe will help devolved government take root. They fear that national government is muscling in at county level, and specifically that the county commissioners – who act as official representatives of the state at county level – are usurping their powers.

The government has announced that those who served as provincial commissioners under the old system will be redesignated as “regional coordinators” and tasked with a monitoring role. This role is not laid out in the constitution, and uncertainty over its mandate has deepened tensions between local and national levels.

Governors are also calling for more powers of the upper house of parliament, the Senate, which the constitution puts in charge of overseeing the devolution process and protecting the interests of county administrations.

Last month, senators became embroiled in a row with the lower house, the National Assembly, which had spurned an initiative to increase the allocation of funds to county administrations by about 20 per cent. Senators had voted to increase the total sum from 210 to 258 billion shillings, or from 2.4 to 2.9 billion US dollars. But without consulting the Senate, President Uhuru Kenyatta approved the original, lower sum agreed by the National Assembly.

For some members of the Senate, the National Assembly’s reluctance to increase the county budget allocation suggests the government is not wholly committed to devolution.

“We cannot wait any longer to test the constitution,” Hassan Omar, a senator from Mombasa and former vice-chairman of the Kenya National Human Rights Commission, said. “There are contextual realities that devolution is under threat and it’s not prudent to wait for ten years.”

Governors want a national referendum on increasing the portion of the national budget set aside for county administrations, from the current minimum of 15 per cent to at least 40 per cent. Meeting under an umbrella organisation known as the Governor’s Council, the 47 governors endorsed a resolution to launch their referendum bid with public rallies across Kenya.

The first rally is scheduled for August 31.

Although the governors represent both the ruling Jubilee coalition and the opposition Coalition for Reforms and Democracy, CORD, they are united on this issue, and have backing from the Senate.

By contrast, support for clipping the governors’ wings is not universal in the National Assembly. Some CORD members are vehemently opposed to the idea.

“I was in the committee of 26 members who drafted the constitution which was passed by Kenyans. I will not support any attempt to derail devolution,” Millie Odhiambo, member of parliament for Mbita in western Kenya said last week.

Meanwhile, IWPR understands that a special Senate committee has been formed to come up with a set of draft amendments to the constitution. The changes centre on greater powers and larger budgets for county administrations.

The Senate plans to put these amendments to a referendum.

TOO SOON FOR FURTHER CHANGE

As moves to amend the constitution take shape, the Constitutional Implementation Commission, CIC, insists that Kenya is not ready for more systemic change.

The idea behind devolution was to correct the shortcomings of a government that ever since independence, had heavily centralised power.

The CIC has warned that limiting the powers of governors would undermine the whole system of devolved government and curtail the benefits people were hoping it would bring.

“One of the reasons why Kenyans voted for the constitution was to give powers of self-governance to the people and enhance their participation in making decisions affecting them,” Charles Nyachae, chairman of the CIC, said. “We cannot talk about clipping the powers of governors without taking away the constitutional roles of county governments. This would fundamentally affect the entire governance architecture in the 2010 constitution.”

Aukot pointed out that devolution was meant to fix the endemic corruption and inter-ethnic rivalry that has been a feature of central government.

“Our leaders should take a walk down memory lane before attempting to fight devolution. Centralisation had many ills that Kenyans should not be dragged back to,” Aukot said.

While members of parliament justify their campaign to curb governors by pointing to their alleged excesses, others argue that this is not a solution.

Morris Odhiambo, president of the Civil Society Congress, argues that it would be better to work on holding elected officials to account.

“What we should be focusing on as a country is to tighten the screws to guarantee accountability within the county governance,” Odhiambo said. “The problem is not the design of the constitution but the people we elected. The mistake Kenyans made was to elect some very corrupt people as governors. So they are the first enemies of devolution because they end up looking at county resources as their own.”

Other commentators, however, are concerned about the governors’ rush to wrest a bigger share of spending from the central authorities.

Omingo Magara, chairman of the Centre for Multiparty Democracy, points out that Kenyatta’s government increased the allocation to counties to more than 30 per cent of the national budget this year – 210 billion shillings. That was a one-off decision which does not affect the basic minimum allocation, which still stands at 15 per cent.

“This jostling for more resources is a complete waste of time that should be used constructively to give service to the people of Kenya,” Magara said.

Richard Onyonka, who member of parliament for Kitutu Chache South in western Kenya, questions the demand for funding when governors have yet to demonstrate they can manage the current allocation.

“Why the rush to demand more funds when they have not convinced us that there are proper structures to ensure proper utilisation of the 210 billion shillings allocated to them?” he asked.

Nyachae of the CIC argues that there are remedies already in the constitution that allow time for devolution to take root. He says it can also be revised if necessary further down the line.

“If after five years, Kenyans [are] unable to see the value of power, resources and decision- making bestowed on county governments... they can easily vote against it,” Nyachae said. “That is why… the constitution provides for a phased transfer of functions assigned to the counties for a period of three years.” 

Felix Olick is a reporter for ReportingKenya.net and The Standard newspaper in Nairobi.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with The Standard.