Governors must be accountable to maintain unity with Senate

This week, the Council of Governors will convene a conference in Nakuru apocalyptically-themed, “The Future of Devolution.” The conference is the second public outreach the Council is undertaking, in two weeks. The first outreach last week was a consultative meeting in Nairobi, at which nearly all the 47 county governments were represented, and also attended by some members of the Senate, among them Kipchumba Murkomen, James Orengo, and Ledama ole Kina as well as a large number members of the county assemblies from around the country.

The context of these meetings is the impasse over revenue sharing between the two levels of governments, which has seen the enactment of the 2019 Approbations Act, even though the Senate and the National Assembly were unable to agree on the Division of Revenue Bill, which the latter then enacted unilaterally. 

Senators and governors spent the last parliamentary term in turf wars, which appeared aimed at resolving contested supremacy claims. Their open display of differences weakened them both as well as the devolution arrangements which they both have a big interest in.

When, in 2015, the High Court declared the Constituency Development Fund unconstitutional, the National Assembly responded by enacting the National Governments Constituency Development Fund Act whose source of funding is a minimum of 2.5 percentage share of annual revenue for the national government. Under the outlawed legislation, the 2.5 per cent share that constituted funding for CDF was a portion of all “ordinary revenue,” rather than an embedded share of the allocation to the national government.

While senators and governors pulled apart in supremacy wars, the National Assembly and the National Treasury found themselves tied together by a shared interest to minimise any financial allocation to county governments, as this would proportionately increase their own revenue shares.

At the same time, the Assembly and Treasury have worked out a sweetheart deal as a result of which the Assembly is institutionally gifted a disproportionately larger share of public revenue than comparable institutions. The 2019 institutional budget for Parliament, allocated to the Parliamentary Service Commission, is Sh40 billion, besides the 2.5 per cent CDF budget embedded in the national government budget.

Parliament has a staff base of about 800, based in Nairobi, although there are some constituency-based members of staff. With a staff of 5,311 and 123 court stations spread all over the country, the judiciary’s budget for the same period is Sh18.8 billion. This is only 0.2 per cent of the budget against an internationally recommended minimum of 2.5 per cent. The Judicial Service Commission, a comparable commission to its parliamentary counterpart, and which runs a separate budget only received Sh400 million, which it shares with the Judicial Training Institute.

In the mind of the public, the threat against devolution emanates from a centralist national government. The untold story is how the perfidy and avarice inside the National Assembly, the one that explains why such a small body gorging so much money already and is demanding even more, marginalises devolution.  

On their part, it has taken them seven years for senators and governors to realise that despite their trivial fights, their interests were always aligned. More than anything else, it is the coercive tactics employed by the Assembly, supported by the Treasury and the presidency, which have brought home that realisation.

Currently, the public standing of governors is generally poor. The institution of governors has crystallised into mini imperial presidencies around the country, as most governors failed to imagine alternatives to the subject/ruler culture that defines the national presidency. As a result, governors have emerged as pampered and entitled individuals, whose current desperation attracts little sympathy. In addition, many governors have remained unaccountable for the resources under their control, a fact the national government employs to justify its crackdown on devolution.

The fact that senators and governors have found unity is unprecedented. While they now seek a judicial interpretation of the various political controversies, they would know that the courts have spoken several times before but this has not translated into sustainable mutual respect between the two levels of government.

Even if necessary, the suits are insufficient for getting them to a place of sustainable mutual respect with the national government. For sustained mutual respect to emerge, governors must address the embedded conflict of interest inherent in the CDF funding.

They must also enlist the support of the people. However, governors will struggle to attract the support of people with whom they have little meaningful interaction or the improvement of whose lives they are not contributing to.

Governors, and MCAs, would need to be far more accountable than they have been, to maintain the newfound unity with the Senate, and would also need to resist division along parochial lines, as has been the case many times before. 

- The writer is the executive director at KHRC. [email protected]