In the wake of the new constitutional dispensation, a lot still needs to be well thought through in order for the gains in the constitution and more-so the devolution process to be appreciated by all and sundry.

The letter and spirit of the constitution should be adhered to during the implementation process.

The debate on the allocation of the monies that shall go to the county governments is still a hot debate in the country but Kenyans should not lose sight of the issue even as parliament shall have a final say on the same. The Commission on Revenue Allocation still faces stiff challenges as some of the suggestions put forward is meeting varied reactions. 150 billion shillings which is 15% of the budget will be shared equally among the 47 counties.

The Commission has suggested that counties with large populations, high poverty levels as well as those with cosmic land should receive the largest share of the funds. Other counties that shall prove themselves worthy by exemplifying good performance shall get an extra 15% of the fund that goes to the counties if the Commissions suggestions are passed by parliament.

The chairman of the Commission, Micah Cheserem however, recently stated that Kenyans should have a say and determine how 60% of the money for the counties should be allocated. Worthy to be noted is that 20% of the fund will be shared equally among the 47 counties. The issue of population has been met with mixed feelings. The Commission indicates that the higher the population of a country, the higher the funds it is going to be allocated. If approved by parliament, Nairobi, Kakamega, Bungoma, Kiambu and Nakuru will get a lion’s share to get of the Shillings 150 billion due to their large populations. The Kenya National Bureau of Statistics- KNBS- indicates that Nairobi’s population stands at 3.1 million, followed by Kakamega whose population stands at 1.7 million, Bungoma’s 1.63 million, Kiambu 1.62 while Nakuru follows closely with 1.6 million people.

Areas with high poverty levels which according to the KNBS are majorly in the North Eastern parts of Kenya; Turkana, Mandera, Wajir, Marsabit, West Pokot and other areas known to face severe famine cases from time to time shall also be considered. The residents of these areas have been marginalised for a long time and you will hear them say that they “are coming to Kenya” when they travel to other parts of the country and especially Nairobi as there is a very big difference with regards to development. A 12% proposition has been made for the allocation on the various counties based on the poverty levels. The equalization fund from the national government as provided for in Article 204, has also been put in place to ensure that the development of some areas that have been lagging behind are looked into.

Polycarp Ochilo a communications consultant and a senior lecturer at the University of Nairobi states that it is important that Kenyans understand that even with the devolved government system, Kenya is still a unitary system. Ochilo was part of the group of highly skilled professionals – the Task Force on Devolved Government – TFDG – set up in October 2010 for the purpose of ensuring that the devolution process is meaningful to Kenyans. The TFDG ensured that 6 significant bills that would ensure that the development of administrative structures that would guide the devolution process in the 47 counties was put in place.

The bills were as follows:

The draft devolved governments bill, 2011: This bill provides for County Government’s powers, functions, and responsibilities to deliver services as established by the Constitution.  Some of its key provisions include:

Powers and functions of county governments, the functioning of the County Assembly. The members of the county assembly which includes the speaker, his deputy, the governor and his deputy, as well as the members of the County Executive Committee (County Cabinet). Members of the County cabinet are required to be graduates before seeking any posts.

The urban centres and cities bill, 2011: This bill lays specific emphasis on the classification and establishment of urban areas, their management, as well as effective governance within counties. It’s mechanisms of management are interlinked with those of the devolved governments bill.

The inter-governmental relations bill, 2011: Establishes a framework for co-operation and consultations between National and County governments. It sets out ways of ensuring that there is proper horizontal relations between the county governments, cities, municipalities and urban areas as these relations will in the long run determine the success of the systems of government. It also covers the mechanisms for the transfer of functions between governments as well as the resolution of disputes among governments.

Intergovernmental Fiscal Relations Bill, 2011: This bill seeks to ensure that the principle of devolution is adhered to by the national Treasury as it seeks to protect the county government from being financially muzzled. Some of the provisions in the bills include; a framework for loan guarantees as well as proper management of public debt by both the national and county levels of government.

County Government Financial Management Bill, 2011: Seeks to enhance management of finances at the county government. It complements the National Financial Management Bill.  It gives details of how funds should be managed at the County and sub-county levels.

The draft transition to devolved government bill, 2011: Looks at the process of transitional arrangements to the full operationalization of the county government. It basically provides for a framework that will ensure a smooth and co-ordinated transition to county governments.

This phased transfer will be in three phases over a period of five years between now and 2017.

Article 194, looks at the objectives of the constitution. It is a direct response to the excesses of the subsequent governments since independence. The professor notes that the government is contracted to be a trustee of the collective will of the people and that with the new constitutional dispensation, the members of parliament, governors, as well as senators may be recalled if their performance is lackluster.

On the question of ethnicity, he notes that the country has 42 tribes which is a good thing as diversity is important and that Kenyans need to be careful when criminalizing ethnicity as no tribe is important than the other. He says that Kenyans have become wise and should ensure that they elect leaders who have no intention of playing the game of maintaining the status quo but rather those who are committed to ensuring that there is equitable distribution of national resources. He notes that the bills have been carefully drafted as they sought to engage the stakeholders in the various sectors with equal citizen participation and with political will the country is geared for tremendous change in the coming years.

He says that the inter-governmental relations bill will help the national and county government relate well. The issue of salaries which is usually a cause of concern was paid attention to. He says that if an employee is to be transferred from the National government to the county government, he/ she will be paid the same amount he/she was paid before the transfer while working at the National government s per the bill.

Article 175 concentrates on the principles of devolution: It looks at ways of facilitating the decentralization of the organs, checks and balances as well as the separation of powers.

Worthy to note, he says is that the bills looked at the historical context of the various issues, the foundations, as well as structures of inclusivity which he says in a big way seeks to enhance a proper transition to the county governments.

 

History:

Kenya has been under the colonial rule since the 1880’s. In 1885 Kenya was declared a British Protectorate. During the industrial revolution the textile industry was flourishing in Britain and more cotton was needed. India and Egypt were the greatest source. In 1922 British signed a treaty to ensure that the source of River Nile was not tampered with.

They built a railway from Somalia to Port Florence – the modern day Kisumu – so as to enhance their supplies. The professor notes that when the British came to Kenya, they saw a beautiful country with wonderful climatic conditions, fertile soils and decided to stay. Under their rule, they established a very centralised government. The governor was a representative of her Majesty the Queen. “They were brutal, racist, and they marginalised Africans. The society at the time was based on a racial classism.1st class citizens were the Europeans who lived in Muthaiga, 2nd class citizens were the Indians who mainly resided in Westlands while Africans –Kenyans were seen as 3rd class citizens and they were stayed in Eastlands in places like Makongeni,” narrated Mr. Ochilo.

Some of the women TOT’s discusing at the Resurrection garden

There was no separation of powers at that time and the governor had executive powers and was assisted by a powerful provincial administration which suppressed Africans. There was however, no law that had established the Provincial administration and until last year there was still a debacle on the issue. The country’s economy was organised along racial lines. Africans were exploited and used as cheap labour. They were removed from their ancestral homes which had fertile land and were forced by the law then to grow certain crops like coffee, which served the centre of the periphery back in their country, notes the professor.

In 1944, the first African, Eliud Mathu was elected to the LegCo- Legislative Council- and Africans were thus given a voice in the council. “The trouble with the colonialist is that they thought Africans did not know what they wanted. A time came when Kenyans said enough is enough, and they refused to be marginalised and fought for Uhuru,” Ochilo stated.

After independence, Kenya still retained the centralised system of governance. The professor notes Kenya was still largely a “Class Society” we had the bourgeoisie, the middle class and the proletariats.

In 1963, the Lancaster constitution came into place but it largely retained the European, values, the ruling class getting unproportional resources over the rest of the Kenyans. He notes that the middle class have been manipulated by the bourgeoisie as they are used to frustrate other middle class and proletariats. “The elites use the instruments of power to control the means of power. The three instruments are: Sheer wealth, Control of information and communication and the legitimate force – which is the power of the president,” states Ochilo.

The powers of the governor were conferred to the president after independence. He notes that the old constitution has been amended 30 times to try and curb an imperial presidency. During the one party state, the government was very brutal and many people were arrested and detained without trial.

“The subsequent governments have entrenched a culture of corruption, poor governance, ethnicity which has resulted in ethnic conflicts, insecurity is widespread and this has ensured that there is still widespread poverty. political uncertainties, marginalization, excessive waste of natural resources, excessive political intolerance, gagging as well as cut-throat political competition has become the order o the day. The devolved governments is a new dawn and believe that the counties will be governed by responsible people who are development oriented,” he adds.

 

The land issue 

With the many issue arising everyday from various stakeholders with regards to land, the professor notes that land is a complex issue that needs not be rushed as it is a key factor of production. The land bills currently in parliament in the 3rd reading have elicited varied reactions from different stakeholders who feel that many things have been overlooked and would like to have the bills redrafted with the various considerations that have been suggested. Questions if the bills have paid any attention to the devolved system and if officers in the counties as well as the land management institutions in the counties shall have specific powers to deal with matters arising are still a concern to many stakeholders. The tussle between the National Land Commission and the Cabinet Secretary is yet to be resolved. The government has also been blamed in some sectors for forceful acquisition of land without payment.

There are three types of land: PrivateTOT’s listening keenly to the presentations land, Government/Municipality land, Communal/inherited land. He says issues of historical injustices; absentee landlords and other uncertainties need to be addressed appropriately. In the past he notes that the commission of land had powers to allocate land, but with the new dispensation, no one can dish out land.

“The trouble in Kenya is that people forget that land does not expand. Countries like Holland are reclaiming some of its land in order to deal with arising issues that require more land. We cannot compare ourselves with countries like South Sudan which is the size of Kenya, Uganda, Tanzania, Rwanda and Burundi combined. It can produce food for all of Africa. He says restitution needs to take place and ensure that we establish where there was injustice and how it can be resolved,” stated the professor.

He is happy to note that men who in the past have been able to sell off pieces of land without consulting with their wives and children will not be able to do that anymore as many families have been left landless due to the “one man decision’’. The Members of parliament are expected back in mid – April and with only a few days to the dead line of the extension to discuss the bills, a lot of work is still pending.

Mr. Ochilo notes that Article 176 states that each county government can devolve further to lower levels to the extent to which it is practicable in order to effectively gain from the devolution process.

Article 177 looks at the membership of the county assembly.

The speaker will be elected from the county executives, who ought to be rational and have the moral authority to lead their various counties.

The professor was speaking during a Trainers of Trainers (TOT’s) workshop organised by the OAIC at the resurrection garden. He urged the TOT’s to vie for posts in their counties in order to ensure that people of integrity and who care for the well being of the citizens are elected.

“There is need to elect leaders yearning for change rather than the usual bourgeoisie who are concerned with primitive accumulation of wealth,” he noted.

He says the senate shall also be responsible for making laws. When asked a question about other counties that are predominantly Muslim and if they would want to have Sharia laws, he stated that a county cannot be allowed to have laws that are repugnant and which are not for the good of everyone. He says that Kenyans should learn to co-exist peacefully and that the secession politics by the Mombasa Republican Council is ill-conceived. He says that the people with that agenda need proper direction and the government should ensure that it acts accordingly before it’s too late.

Some of the TOT’s at the Resurrection Garden

He encourages the line ministries responsible for the implementation process to ensure that civic education is done properly as we gear towards the next general elections. That young people need to stand up and be counted. That by virtue of being young but without a character, simply means that they cannot be entrusted with the leadership of the country as some of the young MP’s are currently portraying.

The General Secretary of the OAIC Nicta Lubaale urged the TOT’s to build coalitions at various levels and ensure that they use the information to empower themselves and others. He notes that civic competence is required in order to make headway in the country and that people should not concentrate of on the manifestos of the politicians but dare to ask the tough questions.

By: Fiona Imbali, OAIC Communications