Without good faith from all Kenyans, devolution will fail

By Charles Kanjama

The annual conference of the Law Society of Kenya (LSK) proved to be the intellectual and political centre for the debate on devolution this past week. The theme of LSK’s conference was, “Realising Devolution and Decentralisation under the Constitution.” One speaker explained the difference between these two concepts: “Devolution means distributing power and functions; decentralisation means distributing service delivery.”

Kenya’s Constitution requires both devolution and decentralisation. Devolution is from national Government to County Government of two key powers of Government (Executive and Legislative), for a list of functions indicated in the Fourth Schedule of the Constitution. Decentralisation is required of all three arms and both levels of Government, as well as commissions and independent offices, to the level accessible to Kenyans.

Devolution and decentralisation can only be efficient if they balance between two competing goods: efficiency in service delivery and grassroots participation. For example, in the Education Sector, you have several key bodies.

The Ministry of Education is in charge of education at national level, and would have county directors of education. Each county is likely to have an education department, headed by a County Executive Secretary.

The Teachers Service Commission is also likely to have county directors.  As grassroots participation increases (and thus equity and democratic governance), inefficiency in service delivery also increases (and thus costs increase and quality reduces).

The current debate on the extent of devolution in Kenya between county governors and national Government, between Senate and National Assembly, and between the Cord and Jubilee coalitions, is mainly a manifestation of competing views of the proper balance between these competing values.

Governors believe their minimum allocation of national revenue should increase to 45 percent, from the constitutional threshold of 15 percent, and the current allocation of 32 percent. National Government believes any increase in county revenue allocation should be left to budgeting process and discretionary choices of national Government.

The Senate believes that to secure devolution, it should be involved in all national legislation, and that the failure to clearly define “bills concerning County Government” (art 110) has allowed the National Assembly to ignore their input. The National Assembly believes the Senate has an exaggerated notion of its role as defender of devolution, and would like to limit it to its constitutional role (art 96, Constitution of Kenya).

The Senate’s main concern is that before either House considers a Bill, article 110(3) of the Constitution requires “the Speakers of the National Assembly and the Senate to jointly resolve any question as to whether it is a Bill concerning counties” and thus whether it must be passed by both Houses, or whether the National Assembly alone can pass the bill. This provision is ambiguous. Who raises the question to trigger the joint forum of Speakers?

 Is there a timeline for the question to be raised, after which the opportunity lapses? What happens if the Speakers fail to agree, as is likely to happen? The Senate has requested the Supreme Court to give a keenly-awaited advisory opinion on this issue.

Whatever the outcome, the Cord coalition believes that the Jubilee Government is not committed to devolution, and that this requires a referendum to get Kenyans to speak loudly and clearly to them.

The Jubilee Government in contrast believes it is doing pretty well, save for teething problems, and that it is premature to judge them after just four months of implementing devolution, since the Constitution gives a three-year time-frame for this (s.15, Sixth Schedule).

Our constitutional design of devolution is workable, and has inbuilt mechanisms and organs for co-operation and conflict-resolution. But without good faith from stakeholders, it will fail, with or without amendment.