How to govern a county – according to the Constitution

If Kenyans thought that the devolution during 2013-17 was sometimes a pretty dismal spectacle, the second is turning out to be even more of … one is tempted to say “a farce” but a farce is funny, and what we are seeing is a tragedy.
We are not focusing on governors who have been arrested, or rumoured to be about to be arrested, for corruption, or even murder. It is for the courts to judge if they are guilty, provided the DPP turns out to have enough and credible evidence. And we must not forget those governors, and county assemblies, who seem to be making a genuine effort to improve the lives of their people.

But, just over a year since they were elected, far too many governors and other elements of county government seem to have completely forgotten about their oaths of office. They swore to “always truly and diligently serve the people and the Republic of Kenya … diligently discharge my duties and perform my functions”. Deputy governors and county executive members swore “when so required, faithfully and truly give my counsel and advice to the Governor”. And county assembly members swore, “at all times, [to] respect, uphold, preserve, protect and defend the Constitution”.

They seem particularly to have forgotten why they are in office. It is not about them, but about the people who elected them and whom they have sworn to serve. Article 174 on the principle of devolution makes it clear: It’s about enhancing the power of the people, not their “leaders”.

THE CIRCUS

The obsession with grand houses continues. “Mansions”, “palatial, “expensive” are frequent adjectives.

MCAs in Nairobi are trying to impeach their speaker; those in Bungoma are trying to impeach their governor.

The governor of Kiambu’s wife is arrested. His Nairobi counterpart insists he has the power to let her go.

The governor of Murang’a threatens to cut off water to Nairobi. At least he seems to be motivated by concern for the people of Murang’a.

The governor of Nairobi says he is in no hurry to select a new deputy governor, as if it were a personal matter.

Nairobi MCAs apparently stormed the office of the speaker when she re-appeared there, having obtained an interim court order to stop her impeachment. And some in Bungoma are described as behaving the same way in the office of the Governor.

DIGNIFIED, RESPONSIBLE AND RESPECTFUL GOVERNANCE

Many people are broadly familiar with Article 10 of the Constitution, which lays down national values and principles, including patriotism, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, good governance, integrity, transparency and accountability. It is not hard to see how some of the often childish, selfish, thoughtless behaviour of our county representatives does not live up to these standards.

Maybe not so many remember Article 73, in the Chapter on leadership and integrity. This speaks of the nature of “authority assigned to a State officer”. This refers to the fact that the Constitution views what we often call “leadership” as something that is, through the Constitution, conferred by the people on public officers. It is a responsibility not a privilege. Article 73 says that this authority or power is a “public trust”; in other words it is to be used by the holder of the authority not for his or her own benefit. The way that power or authority is used must show respect for the people. It must bring “honour to the nation and dignity to the office”. And the behaviour must promote public confidence in “the integrity of the office”. Integrity in this context means honest and moral.

Public officers who clearly think that the office they hold is for their benefit, focussing on their sense of their own self-importance, have completely missed the significance of the constitutional design.

IS A DEPUTY GOVERNOR NECESSARY?

Sometimes it seems unclear what the role of deputy governor is. Clearly, Polycarp Igathe was unhappy with his. Kisii deputy governor complains that politicians think they are “flower girls”.

Apparently, sometimes governors appoint other people to deputize when they are away. But this seems illegal. The County Governments Act says: “The deputy governor shall deputize for the governor in the execution of the governor’s functions.”

No other person has this function. The Act also allows governors to appoint their deputies to have some specific functions within the county executive.

The US experience (relevant because our system is based on it) does not help much. Lieutenant governors of American states may be members of the executive, or serve on state task forces, or preside over the Upper House of a state legislature. Not all states have them. It depends on the state constitution. Kenyan counties cannot have their own constitutions nor upper houses. But a county governor could make good use of a deputy. Too many seem to think of them as rivals. Again, it is all about the individual not about public service.

The question is not whether Sonko wants a deputy; the Constitution assumes there will be one and if there is none, one ought to be appointed reasonably quickly. Suppose Mr Mbuvi fell under a bus? Under the County Government Act, the deputy governor would replace him. There is none. In this situation, the speaker should act as governor. But she is being impeached.

WATER

Rivers, lakes and other bodies of water may be public land. But, if so, they are the responsibility of the national not the county government. The Constitution assigns no water to the counties, and the Water Act says all water resources are held by the national government in trust for the people. So it seems that Murang’a, and its governor, cannot insist that water in the county belongs to the county. Or that other counties must pay for it. Should the governors not learn the about scope of their authority and power, to avoid conflicts with other institutions?

MANSIONS

One writer suggested that the governor’s residence “is a constitutional requirement”. But why? A governor has to live somewhere, but why not in his or her own house? And even if there is to be an official residence, governors, and those who vote their budget, should not forget that the Constitution insists “public money shall be used in a prudent and responsible way” (Article 201). What is prudent about palatial residences?

Another constitutional principle that participants in the theatre of devolution like to forget is cooperative government. The various governments are supposed to work together, in harmony as much as possible, not in a confrontational way. Neither national government, nor Senate nor counties very often choose to remember this. Envy between Senators and Governors is more evident than cooperation.

The courts have also said that within county government the constitution expects that the various elements will try to work together. While at the national level Parliament often seems too deferential to the executive, at county level the reverse is the case. While the assemblies are supposed to oversee the work of the executive, endless wrangling is not productive.

CONCLUSION

Devolution offers great hope to Kenya. It brings government closer to the people, and should ensure more appropriate development and greater accountability. In some counties, such as Makueni, there is evidence that this is happening. In too many others greed and self-centredness stand in the way.

There is little the people can do to remove a governor who abuses office (other than not voting for him or her next time). Even the President cannot do it, unless an independent commission of inquiry recommended it, and the Senate has authorised the county government’s suspension, and does not withdraw its authority.

MCAs, however, may be recalled by their electorates. A court declared the legal framework for this unconstitutional because it made the right to recall ineffective. How long before voters feel compelled to use this remedy?

By JILL COTTRELL GHAI and YASH PAL GHAI