Two weeks ago, this column raised the issue of how far party manifestos — at the presidential level at least — show concern with and understanding of the Constitution, and a commitment to implementing it.
One of the major innovations of the 2010 Constitution was devolution. Many people have their reservations about how devolution has worked out, with particular concerns about devolving corruption. But surveys have generally shown considerable enthusiasm on the part of Kenyans. In September last year, an Ipsos poll showed that enthusiasm was greatest in Nyanza where 86 per cent of people were supportive. Even in the least supportive areas, sizeable majorities approved: 64 per cent in Central and 74 per cent in the Rift Valley.
It is hardly surprising that all manifestos profess support for devolution, saying they would strengthen it.
WHAT WAS THE VISION OF DEVOLUTION?
The Constitution gives a good idea of what devolution is about. Recognising diversity and protecting the rights of minorities and marginalised communities, and thus strengthening national unity, are prominent among the aims. So are promotion of service delivery, and social and economic development, and fairness in the sharing of resources. More transparency in government and more accountability are also important.
The methodology is enhanced democracy, particularly locally, through involving the people in government, and in decisions that are important to them. And this is done by the creation of governments at the county level, elected by the people and accountable to them. Those governments have responsibility for many activities that are central to people’s daily lives, such as health, local transport, agriculture, markets and small businesses, local roads, water supply and sanitation. To carry out the responsibilities they are to have adequate finance—most of which comes from the resources raised by national government, but they have certain powers to raise money themselves, and the financing arrangements are to be designed to encourage this.
WHAT DO THE PARTIES PROPOSE?
Powers of counties
Schedule Four of the Constitution contains a list of the powers of counties. In theory, by now counties are exercising all those powers. Jubilee considers that all functions have been transferred
NASA, however, believes that counties are not yet able to carry out all the functions that were intended to be devolved to them (though it does not list these). It, therefore, proposes to ensure that all functions are indeed transferred. In fact, it intends to pass legislation to clarify the allocation of powers, and also to transfer responsibility for infrastructure for public primary and secondary school to counties. It does not clearly explain why. The Council of Governors annual devolution conference in 2016 said, “County planning and development for electricity and gas reticulation [distribution networks], energy regulation and cultural activities, for instance public entertainment and public amenities such as libraries, have not been fully transferred.”
NASA also proposes that various existing bodies that carry out functions that now straddle the powers of both national and county governments should be reorganised to ensure that they fit with the new system. These include the road boards (Kenya Urban Roads Authority and Kenya Highway Authority), the water boards and the Regional Development Authorities (such as the Tana and Athi Rivers Development Authority). Again, the devolution conference last year identified these as institutions carrying out many county functions.
NASA also proposes that the Constitution should be amended to give counties more of a role in security.
Interestingly, Thirdway Alliance says it would abolish the revamped former Provincial Administration — Ekuru Aukot reviving the Bomas and CoE proposals changed by the MPs to the current, weak, requirement to “restructure” it, which has meant mostly re-branding it and its officers.
Resources for counties
Again, Jubilee identifies no issue. It says it has increased the percentage of national revenue going to counties to 34 per cent. This is slightly misleading: The Division of Revenue Act passed last month allocates just over 20 per cent of the 2017-18 money to counties. The 34 per cent Jubilee mentions is of the 2013-14 financial year’s money.
NASA, on the other hand, argues that various strategies have been used to reduce funds to counties, and commits itself to ensuring that the principle of “funds follow function” is observed. Wisely, it does not commit itself to a minimum of 45 per cent of national revenue to go to counties — as it did in the Okoa Kenya campaign in 2015. Thirdway on the other hand says 50 per cent should be transferred.
It is important to be realistic about the financial needs of the national government. It is responsible for the military and police, most education, national referral hospitals, Parliament and the judiciary, railways and airports, major roads, telecommunications, and elections, of course, among other things. These are not cheap. It is true we ought to be spending more on some county matters, especially health. As a country we joined others in Africa to commit to spending 15 per cent of our overall budget on health, but now we spend more like five per cent.
The important issue is to do as NASA says — ensure that we start with the functions and then ask how much they cost. It is also important that counties make efforts to raise their own revenues. When county residents feel counties are spending their money they should be more determined to hold the county governments accountable — achieving some of the important objectives of devolution.
NASA also promises to change the Constitution to ensure that counties and communities share benefits from resources. Jubilee seems satisfied with the law already passed on this (a topic too detailed to go into here).
Improving intergovernmental relations – cooperative government
NASA identifies as an issue poor relations between counties and national government, despite the constitutional principle of “cooperative government”. It promises to organise a conference between levels of government leading to a “Charter” on cooperative governance. And it envisages strengthening machinery for intergovernmental relations, something promised also by Jubilee.
Assisting and strengthening counties
The Constitution requires the national government to support counties. It is important to remember that counties are not local governments in the old sense — subject to the whims of the Minister of Local Government and liable to be sacked or sidelined at any moment. Though governments are “inter-dependent’ they are also “distinct”. This means they must be able to make their own decisions — otherwise, how can they be accountable to those who elected them?
It is not clear how far Jubilee’s promises are designed to strengthen counties. It speaks of a “structured system of conditional grants”. Though they say this would enable counties to enhance capacity to raise their own revenues, drive investment to national priority areas and strengthen their organisational capabilities — valid aims — it is not clear how. Conditional grants take decision making out of the hands of counties, weakening rather than strengthening them and their accountability.
The Jubilee approach smacks rather of doing things to or for counties, rather than with them. This is true also of their one-county-one-product programme intended “to promote development of industries in each county based on products and resource potential that are unique to each county”. Is this based on reality? And how does it strengthen devolution?
Both main manifestos seem to have little idea of how the national and county governments are supposed to interact when it comes to specific programmes. NASA’s extensive plans for agriculture — much of which is a county function — do not mention county governments once. Jubilee does not mention counties in connection with plans to “increase access to sanitation and sewerage by an additional 500,000 households by” — also county functions. It does say it will “work with county governments” when it comes to establishing proper waste management systems.
It seems there is some way to go before devolution is fully understood and “internalised”. Old habits die hard, as does the quest for control over matters that belong elsewhere. Taking initiatives away from the counties in respect of powers assigned to them is hardly respecting the objectives of devolution.
By JILL COTTRELL GHAI