CMD_Political Parties and Devolution_05_03_15

CENTRE FOR MULTIPARTY DEMOCRACY

–

CMD KENYA

qwertyuiopasdfghjklzxcvbnmqwertyui

opasdfghjklzxcvbnmqwertyuiopasdfgh

jklzxcvbnmqwertyuiopasdfghjklzxcvb

nmqwertyuiopasdfghjklzxcvbnmqwer

tyuiopasdfghjklzxcvbnmqwertyuiopas

dfghjklzxcvbnmqwertyuiopasdfghjklzx

cvbnmqwertyuiopasdfghjklzxcvbnmq

wertyuiopasdfghjklzxcvbnmqwertyuio

pasdfghjklzxcvbnmqwertyuiopasdfghj

klzxcvbnmqwertyuiopasdfghjklzxcvbn

mqwertyuiopasdfghjklzxcvbnmqwerty

uiopasdfghjklzxcvbnmqwertyuiopaxcv

bnmqwertyuiopasdfghjklzxcvbnmrtyu

INCEPTION WORKSHOP MOBILIZATION OF POLITICAL

PARTIES IN SUPPORT OF IMPLEMENTATION OF THE

CONSTITUTION; WITH EMPHASIS ON DEVOLUTION

STATUS OF DEVOLUTION 2015 - LOCATING POLITICAL PARTIES IN

CONSOLIDATION, SAFEGUARDING AND ENHANCING THE BENEFITS OF THE

DEVOLVED SYSTEM OF GOVERNANCE IN KENYA

CMD Boardroom, 6th Floor International House, Mama Ngina Street, Nairobi Thursday 5th March 201510.00 a.m

3/4/2015

Patrick O. Onyango – Paddy, Managing Partner, PatConsult

ABC Place, Wing A, Waiyaki Way P.O. Box 6163-00100,NAIROBI, Kenya Cell: + 254 720 784 952E-mail: [email protected]

Page 2 of 12 │Patrick O. Onyango - Paddy│CMD Presentation Thursday 5th March 2015

1. Background

There is today a tendency of discussing Devolution as if it is a perchance. This narrative ignores the

reality that the devolved system is a product of a historical context defined by Kenyan people’s resilient

struggle for reforms over five decades. The gravitas of this protracted struggle, in which lives have been

lost, civil liberties curtailed, limbs maimed, property destroyed and opportunities for real development

missed; has been comprehensive people-driven constitutional reforms and transformation. This struggle

was predicated on the need to cure myriad of maladies. There over a thousand genuine reasons as to

why Kenyans engaged in reform struggles. These may be distilled into the following: -

1.1 Although Kenya had attained independence, her people remained disparate nations without a

legitimate social contract for cohesion into a Kenya and a Kenyan nation state. The Constitution

2010 is the Covenant that establishes the entity called Kenya, with the people as the Sovereign,

pursuant to the Preamble and Article 1. The Constitution presents Kenyans with an opportunity to

return to the Nationhood project, which was abandoned somewhere along the way;

1.2 Enduring legacy of colonial power structure. Kenya had not fully made a clean break with the pacifist

and divisive colonial state infrastructure. The umbilical cord had not been fully severed at

independence;

1.3 Sovereignty of the State vis-à-vis Sovereignty of the people. There was sovereignty of the state and

not sovereignty of the people. Everything gravitated around the Kenyan State. There was in fact too

much State in the lives of Kenyans. The inner soul of Kenyans had died. There was too much

government in the daily lives of citizens. Fear and despondency pervaded the entire fabric of Kenyan

society. There was therefore need to deregulate this State for Kenyans to set themselves free and

redeem their soul and self-esteem;

1.4 Exclusion of citizens from participation in decision making on matters affecting their lives

(governance), including developmental processes. The exclusion was achieved through manipulation

of state institutions by the ruling political elite. The Kenyan state became commandist, dictating and

imposing priorities on Kenyans without their concurrence. This undermined sovereign authority of

Kenyans who became mere spectators as the political elite appropriated state power for personal

gain. Kenyan people remained excluded in the management of state affairs with minimal or no

expression. The self-esteem of Kenyans was at its lowest;

1.5 The one party dictatorship which had been de facto since 1966 and became dejure in June 1982

angered many patriotic Kenyans. This development compounded the negative effects of the

repressive state that Kenyans had endured over the years. Within the resultant monolithic state

system, all avenues for democratic expression were closed. The Kenya African National Union

(KANU), became the only political vehicle through which the peoples sovereign authority to take

part in governance through representation could be exercised. However, KANU soon became

intolerant within. There was no internal democracy within the party itself. The Mlolongo (que-

voting) tragedy of 1988 which shut out many potential leaders is a case in point. The closure of

avenues of political participation elicited counter forces, such as the clamour for the repeal of

section 2A. Although Kenya re-established multi-party politics, through introduction of many

political parties, it did not translate into multi-party democracy. What emerged was a dual system


where there are many political parties, but operating within a monolithic constitutional

dispensation. There were no checks and balances to anchor the principle of separation of powers.

So Kenyans demanded for a multi-party democratic state as a basis of building a just, democratic,

cohesive and inclusive state;

1.6 Supremacy of Parliament vis-a-vis Supremacy of the Constitution. There was institutionalization of

supremacy of parliament instead of the supremacy of the constitution. Parliament’s power to

amend the constitution had been abused for many years and this had thrown the nation into a

reality in which even the little of what remained of institutions that could guarantee justice and

secure fundamental human rights such as the Judiciary, were subverted through whittling down of

their independence;

1.7 Subversion of entrenched Bill of Rights. Human rights were violated with impunity and cut across

Kenya’s social strata. Most of these violations affected the middle class in the same way it did other

Kenyans. Impunity was not limited to human rights violations but had manifestations in grand

corruption and lack of transparency and accountability in the management of public affairs;

1.8 Marginalization and discrimination of and against groups and communities, including women, youth,

persons with disabilities (desegregated by gender and category), older members of society and

other minority nationalities;

1.9 Discriminatory allocation of national resources and unequal development and opportunities. The

basis for this is the Sessional Paper No. 10 on African Socialism and its Application to Kenya, 1965'.

The paper, though glorified over a period, provided a basis for unequal development since it laid

premium in allocating resources to ‘High Potential Areas’; and,

1.10 Manipulation of ethnic diversity as a basis for exclusive retention of State power, economic

developmental opportunities and political survival. This undermined the Nationhood Project, which

was abandoned soon after independence.

The Constitution of Kenya 2010 cures the above through entrenching the following core principles:

o Sovereignty of the people of Kenya

o Supremacy of the Constitution

o Separation of powers

o Integrity of leadership.

o Respect for and upholding of the Bill of Rights

o Equal access to justice and treatment before the law

o Affirmative Action

o The people of Kenya are the source of authority for the establishment of Government

o Government is established to serve the people of Kenya and not oppress them

o Devolution of power

o Citizen participation

o Transparency and not secrecy in the management of Government and public affairs


2. Kenya’s Devolution

Devolution is one of the major changes that the Constitution adopted by Kenyans at the referendum

held on 4th August 2010 and promulgated on 27th August 2010 has made to the arrangement of

government in Kenya. It is a game changer and a unique and new experience to a majority of Kenyans.

This is in spite of the fact that Kenya experimented with a similar system at independence. Devolution is

the proper vertical and horizontal distribution of State functions and powers amongst and between the

arms of government, namely Legislature, Executive and Judiciary. The devolved system that Kenya has

adopted is provided for throughout the Constitution and is not limited to Chapter Eleven (11). The key

provisions are found in the PREAMBLE, Article 1 (1), (2), (3) and (4); Article 6 (1) and (2); Chapter Five

(Land and Environment), Chapter Six (Leadership and Integrity), Chapter Seven (Representation of the

People), Chapter Eight (Legislature), Chapter Nine (Executive), Chapter Eleven (Devolved Government),

Chapter Twelve (Public Finance), and in the First, Fourth and Sixth Schedules of the Constitution.

Characteristics of Kenya’s devolved system are: -

o There are two levels of government created on equal basis by the Constitution. These are the

County and National governments.

o The Constitution divides Kenya into forty-seven (47) counties with clearly defined geographical

boundaries. This is found in Article 6 (1) and in the First Schedule. The boundaries of each of the

counties have been drawn by the Independent Electoral and Boundaries Commission (IEBC) as

provided for by the Constitution.

o Although the Constitution has created two levels of government and forty-seven counties,

Kenya is still a unitary state.

o The two levels are distinct and are required to respect each other and work in harmony. This is

provided for in Article 6 (2) of the Constitution. This means that relationship between the two

must be consultative and cooperative and not adversarial.

o Neither the County nor the National Government is senior or superior to the other.

o Both levels of government have power to secure resources

o The two governments and institutions established under them are required by the Constitution

to ensure participation by citizens in their affairs.

o The two levels have democratically elected representatives and autonomous political authority.

The elected representatives are for Senate, National Assembly, the President, the County

Assembly and the Governor in each of the forty-seven counties.

o The two levels of governments have clear mandate to provide a range of significant services.

These are outlined in the Fourth Schedule of the Constitution.


o The two governments can be taken to court or can take others to court. This is to say they are

body corporate.

o The two governments can hold bank accounts and employ staff.

o They have the power to control own budget and accounts and the ability to raise own revenue.

o The county governments have been given constitutional authority to make and enforce local

legislation.

o Citizens’ equal access to available resources at either level is guaranteed.

o There are three broad types of counties, namely: -

- Rural Counties

- Counties with both rural and urban characters; and

- Urban and City Counties

The Objects and Principles of Devolution are set out in Article 174 and 175 of the Constitution as

follows: -

The Objects (Article 174)

o Promote democratic and accountable exercise of power;

o Foster national unity by recognizing diversity;

o Give powers of self-governance to the people and enhance the participation of the people in the

exercise of the powers of the State and in making decisions affecting them;

o Recognize the right of communities to manage their own affairs and to further their

development;

o Protect and promote the interests and rights of minorities and marginalized communities;

o Promote social and economic development and the provision of proximate, easily accessible

services throughout Kenya;

o Ensure equitable sharing of national and local resources throughout Kenya;

o Facilitate the decentralization of State organs, their functions and services, from the capital of

Kenya; and

o Enhance checks and balances and the separation of powers.

The Principles (Article 175)

o County governments shall be based on democratic principles and the separation of powers;


o County governments shall have reliable sources of revenue to enable them to govern and

deliver services effectively; and

o No more than two-thirds of the members of representative bodies in each county government

shall be of the same gender.

The structure of County Government is as illustrated below.

The County Assembly Administration is overseen by the County Assembly Service Board, which

hire staff and takes care of their welfare and thos e of the County Assembly Members. The

County Administration is overseen by the County Public Service Board.Source –Final Report of

the Task Force on Devolved Government (TFDG), 2011.

Classification and management of Urban Areas and Cities

o Under Article 184 (1) the Constitution provides that “National legislation shall provide for the

governance and management of urban areas and cities …....”

o There is already a law, the Urban Areas and Cities Act, 2011, which makes provisions on how the

urban areas and cities within a County are classified and managed

o The Urban Areas and Cities Act, provides for the following categories of urban areas within a

County: -

- Cities

- Municipalities

- Towns


o The Act provides that urban areas and cities will be under the County Government and will be

managed by boards appointed by the Governor with the approval of the County Assembly.

o Urban areas within counties will be headed by Managers appointed by the Governor and

approved by the County Assembly.

With the passage of the Urban Areas and Cities Act, the existing local authorities ceased to exist. So

there are no city, municipal, county or town council clerks. There are also no Councilors but Members of

County Assemblies (MCAs).

The Constitution assigns each level of Government functions in Article 187 and outlined in the Fourth

Schedule. The Functional Assignment is as illustrated below.

Source: The Institute for Social Accountability (TISA)

Sources of revenue for counties

These include but not limited to: -

o Own revenue raised through levying taxes approved by the residents of a county

o Borrowing

o Commissions from investments

o Income generated from partnerships with private sector

o Grants from the national and other development partners.


o The Equalization Fund, established by the Constitution in Article 204. This Fund is strictly for

special groups and regions that over time were left out in terms of development

The Commission on Revenue Allocation (CRA) is the constitutional entity charged with the responsibility

for determining the criteria for sharing of revenue. Currently the Constitution, under Article 203 (2) sets

the Equitable Share of the revenue raised nationally to a minimum of 15% of the last audited accounts.

The first revenue sharing formula was approved in November 2012, months before the county

governments were formed before the March 4th 2013 General Elections. The formula was based on five

parameters namely; population, the basic equal share, poverty levels, land area and the fiscal

responsibilities of the county governments. Towards the end of last year, the CRA proposed

consideration of additional two parameters namely personnel emolument and development. So there

will be seven parameters. If the proposed formula is approved by Parliament, the total allocation for the

47 counties will increase from the current Sh226.7 billion to Sh279.2 billion. These amounts are based

on the tax collected in 2013/14 financial year, which stood at Sh1.027 trillion and the accounts approved

by the Public Accounts Committee for that period.

On the basis of the proposed formula, sample revenue share will be allocated as follows: -

o Nairobi County will receive 15 billion. In the last fiscal year it got Sh11.34 billion. Its allocation

will increase by Sh3.8 billion.

o Kakamega County which contributes 4.9 per cent to the national poverty — will receive the

second largest allocation at Sh9.474 billion. In the last fiscal year, it received Sh7.773 billion. The

Socio-Economic Atlas of Kenya ranks Kakamega as having the highest incidence of poverty with

809,500 people living below the poverty line.

o Kilifi County will be third nationally with an allocation of Sh9.306 billion.

o Mandera County will receive Sh8.97 billion.

o Kiambu County will be allocated Sh8.78 billion.

o Lamu County will receive Sh2.27 billion.

o Tharaka-Nithi County will receive Sh3.38 billion; and

o Isiolo County will get an allocation of Sh3.426 billion.

3. Current Status

The following institutions and organs have been put in place and functional:-

o The County Assemblies

o The County Executive (Inclusive of structures below the County, e.g. Sub-County, Ward and

Village Administrators)

o County Assemblies’ Service Boards

o County Public Service Boards

o The Council of Governors

o Parliament (Senate and National Assembly)

o The Summit

o The Transition Authority


o The Commission on Revenue Allocation

o The Salaries and Remuneration Commission

o The Commission for the Implementation of the Constitution

o The Office of Controller of Budget

o The Auditor General’s Office

In addition to the above constitutional and statutory bodies, various categories of members of the

County government have formed themselves into entities including: -

o Deputy Governors’ Council/Forum

o County Assemblies’ Forum

o County Women Members of County Assemblies Caucus

Devolution laws

The following pieces of legislation have been passed by the National Assembly to guide implementation

of the devolved system: -

o The County Governments Act, 2012

o The Intergovernmental Relations Act, 2012

o The Urban Areas and Cities Act, 2011

o The Public Finance Management Act, 2012

o The Transition to Devolved Government Act, 2012

o The National Government Loans Guarantee Act, 2011

o The Elections Act, 2012;

o The Leadership and Integrity Act, 2012; and

o The Political Parties Act, 2009

4. The hurdles

4.1 Accountability question. There is no foolproof mechanism for ensuring accountability at the

County level. Impunity abounds.

4.2 There is no well designed awareness creation framework on the devolved system. There are

however curricula and manuals developed by the Transition Authority in collaboration with

others, including URAIA Trust.

4.3 Enduring centralist attitudinal mindsets. There is a sense in which many people are living in

denial of the fact that Kenya has a democratic constitutional dispensation. People across the


board are reluctant if not refusing to let go. The mantra for this is “This is the way we have

always done and it has served us well”

4.4 Multiple institutional conflicts.

4.5 Emergence of new minorities and marginalization.

4.6 Inadequate citizen participation. There is no policy framework for citizen participation. There are

currently disparate efforts at coming up with one. The Task Force on Devolved Government had

envisaged citizen participation to be the foundation for success of the devolved system as

illustrated below.

4.7 Contestations over the new criteria for revenue sharing proposed by the Commission on

Revenue Allocation.

4.8 Contestations over the gender question. Although the Constitution has sorted out the

implementation of the two-thirds gender principle at the County level under Article 177, the

national question is yet to be settled. There are however efforts to resolve this through a

Committee established by the Office of the Attorney General to operationalize Article 100 of the

Constitution. At the time of preparing this presentation, the gender equation at the county level

was as illustrated below.


Source: The Institute for Social Accountability (TISA)/Commission on the Implementation of the

Constitution (CIC)

5. Locating the political parties’ role in Devolved System

5.1 Enforcing accountability in Party Counties and at the national level through performance

assessment of party representatives and officials at the county and national institutions

5.2 Mobilizing party members to engage with County and national government institutions

5.3 Resolving the established discriminatory culture against ‘Special Elect’ and/or nominated

members who are currently being bullied by their elected colleagues and abandoned by party

structures. In a number of sampled populations of nominated leaders, there was a line of best fit

confirming that ‘Special Elect’ members are not considered equal to the directly elected

members.


5.4 Inculcation of bi-partisan approach to issues affecting the Kenyan people, who are the

sovereign. Currently policy and legislative issues are subverted in an adversarial relationship

even in instances where an issue is of mutual benefit to the people of Kenya irrespective of their

party affiliations.

5.5 Building capacity of party representatives at various levels to better perform their functions in

the various representative and executive organs. These include in the areas of policy

formulation and legislation; and

5.6 Political education of party members and representatives.

6. Conclusion

From the foregoing, it is abundantly clear that political parties have a major role to play, not only in the

implementation of the Constitution of Kenya 2010 in general, but in defending the devolved system of

governance in particular. This engagement should be pursued whether or not a party has formed the

government or not. Of utmost importance is the need for political tolerance which foster bi-partisan

approaches to issues that is of mutual benefit to the people of Kenya. Finally it has to be understood

that the Constitution of Kenya 2010 has shifted the philosophical paradigm of governance from that of

exercising political power over the people of Kenya at all levels to that of ‘Developmental and Service

Delivery Governance’.

CMD_Political Parties and Devolution_05_03_15

Documents

kenyan state

state vis

lives of kenyans

kenya cell

kenyan nation state

kenya cmd boardroom

lives governance

comprehensive people