Implementing devolution in Kenya: challenges and opportunities two months on
by Mugambi Laibuta
Hailed as the great compromise of Kenya’s new (2010) Constitution, devolution was one of the hallmarks of the transition from a previously centralized political system, which was largely blamed for vast inequality, exclusion and deep divisions in Kenyan society. A number of key steps have been taken as part of the constitutionally prescribed three year roll-out plan for devolved government. Examples include passage in 2012 of key devolution-related legislative reforms, followed by general elections in March 2013 that established a new governance structure.
In this regard, the March 2013 elections are significant in that they definitively sealed the death of Kenya’s obsolete, post-independence Constitution and paved the way for the full operationalisation of many sections of the new Charter, which until now remained largely unimplemented. What has changed since? How is the current structure of the new polity being aligned with the constitutional vision for a socially, economically and politically inclusive society built on the principles of decentralization? What are the practical difficulties being faced in this ambitious change in the structure of Kenyan government?
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State of play
In order to appreciate the degree of changes taking place, a brief understanding of the historical context is in order. At independence, Kenya’s Constitution provided for some degree of fiscal, financial, legislative and political autonomy to regional governments, though in practice the central government still maintained a tight grip on them. By contrast, the current dispensation allows for two distinct levels of government: County and National governments, each with distinct powers, even if expected to cooperate with one another. Unlike the regional governments in the old system, county governments have full prerogatives that allow them to manage and develop their own affairs while fostering, social, economic and political development. Hence some of the areas their powers extend to include agriculture, healthcare, transport, trade development and regulation, planning and development and pre-primary education.
Besides the central executive, the March poll also saw the election of some authorities, and the final roll out of some structures, considered central to the new devolved governance framework. These include governors, county women representatives, county ward representatives, and senators who represent the counties at the national level. To ensure that counties have adequate resources to kick-start devolution within the parameters they can handle, the Senate has since passed legislation for the allocation of revenue to county governments, which now enjoy adequate funding- at least before the next financial year.
Central to this implementation process is the Transition Authority, established by Schedule Six of the Constitution with a core mandate to facilitate and co-ordinate the transition to a devolved system of government. Through powers conferred by the Transition to Devolved Government Act, the Transition Authority has since identified functions that were to be transferred to counties following the elections.
County governments have also already taken over institutional structures of the local government authorities as part of this process, including office premises, staff, assets and liabilities of local government that functioned under the former constitutional dispensation.
Despite these developments, one can identify a number of weaknesses in the way the process has been implemented. An emerging reality, for instance, is the ignorance that surrounds the devolution process, its operation and benefits, suggesting a failed public education strategy on the process. This has not been without consequences, as it has also impacted the devolution process. What then are some of the key challenges encountered so far?
Challenges and opportunities for improvement
To begin with, the lack of understanding of key issues around devolution is generating a great deal of mistrust between stakeholders with some, especially the minority coalition in both houses of parliament, believing that the national government is seeking to frustrate devolution. Some counties, for instance, contest the piecemeal transfer of functions that has taken place so far, arguing that all powers provided in Schedule Four of the Constitution be transferred at once. This demand is partly driven by belief on the part of county governments that officials of the national government and local government structures being phased out remain resentful of the invasion of their previous scope of authority. While this may be true, the reality on the ground is that many county governments, if not all, lack the capacity to absorb all such powers within such a short term. This argument is strengthened when one considers, for instance, that Kenya currently lacks trained and experienced legislative drafters, fiscal and economic planning experts to adequately cater for the 47 counties.
Revenue allocation is also proving to be a divisive issue. By law, counties are entitled to least 15% of the total National Revenue collected. Despite many counties currently enjoying adequate funding, there is still a feeling that budgetary allocations need to be increased, and that the central government is reluctant to do this. Many county governors have since launched a spirited campaign to that effect and have interpreted the perceived national government reluctance as a ploy to frustrate the effectiveness of devolved units. On closer scrutiny though, the reality, as with the transfer of power, is that county governments do not have the absorption capacity for more than 15% of the national government revenue. Added to this are demands by county assembly authorities, like their national counterparts, for increased remuneration and benefits beyond the $1500 monthly package.
Other challenges involve the four different offices involved in the devolution process, each with their own administrative and bureaucratic culture that complicates the process; lack of audit reports for structures, assets and liabilities inherited from former local government institutions; as well as failure to observe the ‘at least a third rule’ which was designed to ensure adequate representation of women and other historically marginalised groups in the devolved structures. These challenges do not only pose great risks for the effective roll out of devolution in Kenya but also provoke some critical questions about the current implementation strategy.
For instance, in a country where the average annual salary is just $1600 (ca $133 per month), and the vast majority of the population fall within or below this income bracket, will the new devolved government structure, and with it the demands from officials for more benefits and remuneration, not place a punitive wage bill on Kenyan taxpayers? Second, in the absence of proper auditing of inherited structures from the defunct local government structures and the impossibility of effectively policing all aspects of this transition, how will the risks of asset stripping be mitigated in a country where corruption and fraud is still rife?
Regarding the ‘one third rule’, the situation is even dire as ingenious devices are being used to circumvent it. In Kericho County, for instance, many individuals are masquerading as members of the Tallai clan, which is one of the county’s traditionally excluded groups, to secure nomination to the County Assembly, to the perennial detriment of actual members of the clan. With no clear solutions from authorities that effectively address this, why would ordinary Kenyans and affected groups not be sceptical about the value of the process?
By these questions, I am not suggesting that the process of implementing devolution in Kenya is failing or bound to collapse. I am merely stating that we can do better, by sign-posting issues that relevant authorities and stake holders will be ill –advised to ignore if we want to effectively complete a process whose start has neither been the best nor the worst.
 Advocate, High Court of Kenya| Researcher providing capacity building and support towards the constitutional implementation process| Former Researcher with the Committee of Experts on the Constitution| Views expressed do not represent those of International IDEA.