2015/16 Yearbook Devolution

Devolution

Devolution represents a major transformation of the Kenyan state and eventually society. At independence, the Constitution retained an executive presidency. The new supreme law of 2010, gives powers of self-governance to the people and enhances their participation in the exercise of the powers of the state and in making decisions affecting them.

Introduction

Devolution resulted from the Constitution of 2010. The new structure has birthed enhanced autonomy among the devolved units of government, including distribution of resources and political power.

The Constitution stipulates that not less than 15 per cent of national shareable revenue should go to counties. It also provides for a separate Equalisation Fund, which ensures that marginalised counties can have their development needs fast-tracked.

History of Kenya’s Constitution

Kenya’s Constitution has come a long way since the country gained independence in 1963 with a Constitution premised on the discussions at the Lancaster House Conferences.

The Independence Constitution, which was a compromise between the British colonialists and the main political parties in the country at that time, namely Kenya African National Union (Kanu) and Kenya African Democratic Union (Kadu), was keen on safeguarding the colonisers interests upon their departure.

Britain was keen on holding sway in how the country was managed, given its economic and geo-strategic disposition and as result, the Constitution retained Kenya as a dominion that followed the British parliamentary system.

Thus, the 1963 Constitution provided for a parliamentary system of government at the peak of which was an executive Prime Minister appointed by the British monarch from among the majority party in Parliament.

However, upon independence in 1964, the Constitution was radically amended to make Kenya a Republic with a presidential system of government.

What followed were a series of constitutional changes that killed the Senate and subsequently regional governments and with it the Majimbo system.

Another drastic constitutional change took place in 1982 when Kenya changed from a multi-party to single-party state. Kanu consolidated itself as the only party in the country.

Those agitating for the return to multi-party democracy confronted numerous hurdles, including detention without trial, forcing many into self-exile.

Under pressure from western powers and negative publicity in international media, the Government finally succumbed and in 1991 allowed the deletion of Section 2A of the Constitution, paving way for pluralist politics. The amendment also limited to two the maximum number of terms one can hold the seat of the presidency.

The first multi-party elections were held in December 1992. But this did not stop agitation for more constitutional changes, especially those aimed at dispersing power from the presidency.

The Constitution of Kenya Review Commission, headed by law Professor Yash Pal Ghai, was appointed to kick-start the process of giving Kenya a new constitution.

However, as the Bomas of Kenya Constitution Conference was continuing, Parliament was prorogued towards the end of 2002 to pave way for elections. The Bomas talks could not proceed since MPs were an integral part of delegates.

Raila Odinga, who had defected from Kanu alongside several other ministers after Moi settled for Uhuru Kenyatta as his successor, joined forces with a group of opposition politicians, led by Mwai Kibaki, to form the National Rainbow Coalition (Narc) and, among a string of other promises, was the delivery of a new Constitution within 100 days of ascending to power.

But this campaign pledge never materialised. A referendum was held in 2005, and he proposed Constitution, which retained an executive presidency with wide ranging powers and provided for a diluted devolved system, was defeated.

After the 2007 General Election, enacting a new Constitution formed part of the settlement to avert a similar recurrence.

The Committee of Experts (CoE), headed by lawyer Nzamba Kitonga, eventually produced a proposed Constitution, which was promulgated on August 27, 2010, heralding a new era for Kenya.

Considerable devolution of power and resources and a Senate to safeguard the interests of the 47 devolved units is among the key pillars of the new supreme law, which was endorsed by 67 per cent of Kenyans.

There had, however, been differences over which form of devolution was ideal. While in 2005, the debate was on five devolved units, in the debate leading to the 2010 Constitution, the same had reduced to three – national, regional (former provinces) and county (former districts).

The CoE and the political class eventually agreed on two levels, discarding the need for regional governments, while the number of counties was reduced to 47 based on the district boundaries drawn at independence in 1964. This, it was argued, was to avoid a complex system though there were also fears among the political elites that regional governments could pose similar risks such as those experienced at independence when regional presidents begun to challenge the national presidency.

The Transition Authority, which is charged with midwifing the operationalisation of the new devolved units, says in one of its reports that implementation of the Lancaster governance structure at independence was undermined by poor governance as evidenced by corruption, ethnic conflict, insecurity, political uncertainty and poverty.

“Some of the negative outcomes included the alienation of large portions of society from the mainstream economy, wasteful public investments, massive poverty, ethnic animosity, cut-throat political competition and intolerance,” it says.

In seeking to avert a similar scenario, the 2010 Constitution provided for, among others, enhanced checks and balances within the government, an enhanced role of Parliament and citizens, an independent judiciary, constitutional commissions and one of the most progressive Bill of Rights.

Regarding devolved governments, the Constitution puts emphasis on dispersing political power and economic resources to Kenyans at the grass roots.