Devolution in Kenya Setting the Agenda e Version

Constitutional Devolution in Kenya: Setting an agenda

A report of a study commissioned by The Kenya Civil Society Strengthening Program

October 17th 2011

Constitutional Devolution in Kenya: Setting an agenda - 2

The study and production of this report is made possible by the support of the American people through the United States Agency for International Development (USAID). The views expressed herein are responsibility of KCSSP and do not necessarily reflect the views of USAID and the United States Government.


Table of ContentsACRONYMS/ABBREVIATIONS 3Acknowledgment 4Forward 5GLOSSARY 6Executive Summary 81. Introduction 132. Methodology of the Study 163. Decentralisation and Service Delivery in Kenya 194. Devolution: a review of the literature 284.1 Concepts surrounding devolution 284.2 Rationale for devolution 294.3 Optimising devolution prospects 294.4 Devolution in practice 315. Constitutional Devolution in Kenya 356. Evaluating Kenyan Devolution 406.1 Overall FGD Perceptions on the Constitutions 406.2 Gaps and Overlaps in the Constitution 416.3 Generating Revenue under Devolution 486.4 The Equitable Sharing of Revenues 526.5 Contradictions between the New and Old Systems 556.6 Management of Shared and Exclusive Natural Resources 576.7 Citizen Participation and Oversight 587. Conclusions and the Way Forward 61BIBLIOGRAPHY 65APPENDICES 67


ACRONYMS/ABBREVIATIONSAEZ Agro-Ecologic ZonesAOP Annual Operational PlanBOR Bill of RightsCA County AssemblyCDF Constituency Development FundCEC County Executive CommitteeCECR Committee of Experts on the Constitution ReviewCG County GovernmentCOE Committee of ExpertsCRA Commission on Revenue AllocationCRF County Revenue FundCSO Civil Society OrganisationDDO District Development OfficerDFRD District Focus for Rural DevelopmentERSWEC Economic Recovery Strategy for Wealth and Employment CreationFGD Focus Group DiscussionHDI Human Development IndexIEC Information, Education and CommunicationIGFT Inter Government Fiscal Transfer IMF International Monetary FundKADU Kenya African Democratic UnionKANU Kenya African National UnionKCSSP Kenya Civil Society Strengthening ProgramKNCHR Kenya National Commission on Human RightsKRA Kenya Revenue AuthorityLA Local AuthorityLASDAP Local Authority Service Delivery Action PlanLATF Local Authority Transfer FundMTEF Medium Term Expenditure FrameworkNARC National Alliance Rainbow CoalitionNGO Non-Government OrganisationODM Orange Democratic MovementPA Provincial AdministrationPER Public Expenditure ReviewPNU Party of National UnityRMLF Road Maintenance Levy FundROK Republic of KenyaSAP Structural Adjustment ProgrammesSNG Sub National GovernmentSRDP Special Rural Development ProjectSSA Sub-Saharan AfricaTFDG Task Force on Devolved Government


AcknowledgmentThe Kenyan Civil Society Strengthening Program (KCSSP) would like acknowledge and appreciate the efforts of all individuals, organizations and institutions of government who contributed in various ways to the development of this publication. We wish to sincerely thank Dr. Othieno Nyanjom for undertaking this assignment and producing a comprehensive and well-researched document that has given more insight to the concept of decentralization. In addition, we most sincerely thank all KCSSP sub-grant-ees for their input through critique and recommendations that went a long way in the improvement of the publication. Finally, we wish to thank the United States Agency for International Development for their generous financial support, which made the com-missioning of the study and its publication possible.


ForwardThe Kenyan Civil Society Strengthening Program (KCSSP) is a six year grant making and capacity-building program funded by the United States Agency for International Development (USAID) and jointly implemented by Pact Inc. and Act! (formerly Pact Kenya). KCSSP targets Civil Society Organizations (CSOs) and other non -state actors with the aim of building large constituencies for critical reforms needed in democratic governance, peace building and natural resource management. The need for KCSSP arose from the realization that although civil society groups had in the recent past been instrumental in furthering policy reform in Kenya, their ef-fectiveness after the 2002 General Elections had been somewhat dampened by a number of factors. The challenges that faced CSOs ranged from the lack of a clear agenda, credibility gaps, to the lack of long-term viability.

In the recent years, KCSSP has supported Kenyan CSOs to, amongst others, advocate for better fiscal decentralization through moni-toring the use of devolved funds and demand for reforms. A number of KCSSP sub-grantees have been at the forefront in advocating for a decentralized system of governance. The Constitution of Kenya 2010 (CoK 2010) now provides for both fiscal and political de-centralization. The focus now for KCSSP sub-grantees, other CSOs and non-state actors is to advocate for the proper implementation of the Constitutional provisions on decentralization for the benefit of all citizens in the country.

However, as much as the Constitution provides for a new system of governance, it remains unclear what the design of the new system will be and how it will function. The government appointed a Taskforce of Devolved Government, whose mandate was to propose implementation mechanisms for the devolved system of government as envisaged in the CoK 2010. Considering the impor-tant role of CSOs and non-state actors in transitioning to the new system of governance, KCSSP commissioned a study on decen-tralization in Kenya. The study aims at providing new information and insights on decentralization for Kenyan CSOs advocating for a suitable model for decentralization for the country.

It is our hope that this publication will equip CSOs and other non-state actors with more knowledge on the concept of decentral-ization. We hope that CSOs will be better placed to advocate for the proper implementation of the constitutional provisions on decentralization, advocate for the proper utilization of resources and mobilize citizens to participate in the decentralized governance structures and processes.


Executive Summary Kenya has recently promulgated a new constitution amidst much fanfare between those who supported the Proposed Constitution at the 2010 referendum, and those who opposed it. The process, which took nearly two decades to finalise, has produced a constitution that some analysts have adjudged among the best on the continent. Under the previous con-stitution, Kenya was bedevilled by impunity, arising from the over-concentration of power around the person of the Presi-dent, enabling (him) and his cronies to ride rough shod over the rest of the Kenyan population. Indeed, the constitutional separation of powers – between the Executive, Legislature and Judiciary – only existed on paper, as an ‘imperial Presi-dent’ was able to rule extensively by decree.

Kenya has a widely varied agro-ecological heritage, which de-termined the regional distribution of colonially expropriated land, and consequent investments focused on making the White Highlands amenable to exclusive European settlement. Significantly, the independence government early adopted the development strategy prescribed by Sessional Paper No. 10, whose policies deepened the inequalities inherited from the divisive colonial era policies. While the government attempted to fight poverty, disease and ignorance, weak management policies (and global influences) undermined achievements. Consequently, there was a decline in general human welfare, as well as the emergence of a Kenya state that did not have a unified national identity.

While poverty levels rose into the final years of the last Mil-lennium, the political system increasingly muted the voices of the people and their elected representatives with respect to debating human welfare improvement. The country became a one-party state in 1982. With the local govern-ment system more or less moribund outside the large urban areas, the government tried to appease people through various decentralised governance strategies, including the Special Rural Development Programme, District Focus for Rural Development, Local Authority Trust Fund, and the Road Maintenance Levy Fund. The country espoused structural adjustment programmes [SAP] to enhance service delivery. Yet, the impacts on widespread welfare remained modest, with 57 per cent of Kenyans living below the poverty line by 2000. Kenyan opposition politicians and civil society persisted in making demands for constitutional changes, which would allow greater participation in identifying and implementing development priorities.

In the context of the global liberalizing reforms that incorpo-rated SAPs, the government relented to piecemeal constitu-tional changes starting with the 1991 return to multi-party democracy and the introduction of presidential term limits. Further changes came through the 1997 Inter-Parties Par-liamentary Group accord. However, the major breakthrough came with the 2000 launch of the comprehensive review of the Constitution, resulting in the Bomas Draft Constitution of 2002, the same year voters finally ended 40 years of KANU presidencies. The 2003 accession to power of the ethnically and regionally broad-based NARC government carried great hopes for far-reforms. NARC launched governance reforms, introduced free primary education, launched the grassroots-focused CDF and CACC, amongst many other impressive measures constituting its Economic Recovery Strategy for Wealth and Employment Creation (ERSWEC) 2003-07 which managed to achieve economic growth of 7 per cent by its close. However, the emergence of a dominant anti-reformist platform within NARC would soon overshadow these impres-sive attainments. Instead of resolving old cases of impunity, NARC’s anti-reformists opened up new fronts, such as the Anglo-Leasing, Telkom and Grand Regency scandals.

Consequently, a 2005 referendum rejected NARC’s Proposed Constitution, setting the stage for even greater impunity that would lead to the mismanaged 2007 general elections and the accompanying violence. The February 2008 signing of the National Accord between PNU and ODM contained the vio-lence. The Accord also established a slate of time-bound im-perative reforms, dubbed Agenda Four, which chaperoned the finalization of Kenya’s two-decade long constitutional review process. Kenya’s Constitution (2010) restores the separation of powers by strengthening the position of the Legislature and Judiciary vis-à-vis the Executive which it restructures in many substantive ways. Most significantly, the constitution, among others changes, diminishes presidential prerogative over key public appointments and the size of cabinet. In espousing devolution, the Constitution created a two-tier government whose parts are ‘distinct’ and ‘interdependent’.

The Constitution shared service delivery between the national level and 47 county governments headed by a Governor working alongside a County Assembly. The Commission on Revenue Allocation would determine the equitable sharing of national revenues between the national and county govern-ments, and across the latter – with a base level of at least 15 per cent. Besides an Equalisation Fund targeting marginalized


areas, the Constitution provides that counties may receive other grants from government, and borrow with, with the approval/consent of the national government. The release of funds to counties will be against an all-inclusive Integrated County Development Plan, leaving no room for the decentra-lised funds, such as CDF.

After the promulgation, the government appointed the Task Force on Devolution in Kenya to solicit views of experts and wananchi on how to operationalise devolution. The Task Force’s work resulted in six bills, including County Govern-ment Financial Management Bill, Devolved Government Bill, Inter-Government Fiscal Relations Bill, Inter-government Rela-tions Bill, Transition to Devolved Government Bill, and Urban Areas and Cities Bill. While the last bill has been enacted into law, the other five await parliamentary debate.

Meanwhile, the Kenya Civil Society Strengthening Program [KCSSP] commissioned the current report to facilitate its work of engaging non-state actors “with the greatest potential to build large constituencies of critical reforms (necessary for) democratic governance and natural resource management.” Using a literature review, key informant interviews and focus group discussions FGD], the commission’s initial objective was to to evaluate the wholesomeness of the Constitution’s provi-sions for devolution, paying attention areas of potential con-flict between the old and new dispensation. Notable among such areas were: revenue generation; revenue sharing; the status of local authorities, Provincial Administration and decentralised funds; and shared natural resources. KCSSP was also keen on exploring avenues for effective citizen participa-tion. Once the Task Force bills had been published, however, these became topical and have been discussed in the current report.

The seven FGDs conducted for the current report established that even though the average Kenyan was not conversant with the contents of the old constitution, there had been a need to review it to close the gaps in it that facilitated/enabled impunity to thrive. The FGDs also appreciated the inclusive process of the review, and the final product. How-ever, the FGDs also revealed extensive misconceptions and misinformation surrounding Constitution (2010), meaning the civic education work undertaken into the 2010 referendum did not make a lasting impact. Many of the issues identified by the FGDs as gaps in the Constitution were actually already there. This study established widely varied capacities for own revenue, and many of the ideas for increasing county revenue generation required initial investments of capital, reflect-

ing areas overlooked during 50 years of independence. On revenue sharing, the FGDs revealed the need for extensive education on Kenya’s development history that has led to current inequalities which undermine national cohesion. The concept of equity in sharing national revenues and ownership of natural resources were areas needing special attention. The FGDs reflected the need for broad-based capacity-building and civic education to enable wananchi to take advantage of the space created by the Constitution and the devolution bills. The devolution model offered by the Task Force’s bills would be expensive; but it offers an opportunity to reverse some of the misadventures that have generated the inequalities and suspicions that have undermined the development of a cohesive and integrated nations-state.

In terms of the way forward for civil society, there are two directions of engagement: upwards with the legislative pro-cess; and downwards with wananchi. It is likely that Parlia-ment will hasten the passage of the devolution bills, meaning any inputs into that process should be fast-tracked. Thus, it might be necessary to assume the bills reflect the outputs of TFDK’s deliberations with wananchi, diminishing the need for further consultations with them. With respect to the upwards engagement, the flag has been raised by the dispute between Treasury and TFDK on the revenue split between the national and county levels, and Treasury’s covert attempt to retain control of budget funds. This suggests the need for civil soci-ety to sponsor urgent deliberations to ensure that the agents of yesterday’s impunity do not claw back the opportunities provided by the Constitution and devolution bills. Conse-quently, civil society should:

• Hasten to conduct workshops on the devolution bills to fine-tune their contents.

• Identify individual parliamentarians who can form a cau-cus to ensure that popular – rather than elitist – percep-tions on devolution carry into law.

• Prepare to take advantage of Articles 118 and 119 of the Constitution, to put the people’s position directly before Parliament on issues of devolution, where this is necessary.

With respect to downwards engagement, civil society can contribute in two important areas: these are civic education; and citizen participation. On civic education, it is important that a much more focused round of civic education inter-ventions is undertaken on the Constitution in general, and devolution and public financial management in particular. This will enhance the capacity of wananchi to exploit the partici-patory governance opportunities offered by Articles 10, 118,


174, 184, 196 and 201, and Parts VIII and X of the Devolved Government Bill. To this end, non-state actors, such as KCSSP could sponsor:

• The production of people-friendly versions of segments of the Constitution and selected pieces of related legisla-tions. The unpackaging of the Constitution into stand-alone people-friendly chapters is likely to overcome the intimidation felt by many people by the prospect of reading a huge document. Such publications should incorporate some basic analysis of the significance of the provisions of the legislations.

• The training-of-trainers on the Constitution, devolution legislation and related governance issues. Such trainees subsequently become the reference points within their communities.

• Sponsor the production of Information, Education and Communication (IEC) material on the Constitution, devo-lution and related governance issues, delivered through drama, song and dance.

• Sponsor school-based competitions enhancing aware-ness of the Constitution and governance issues, such as through competitions involving essay writing, poster painting, debates and quizzes.1

• Sponsor inter-community quizzes on Constitution and governance issues with Wanjiku as the participant. Attainments should be rewarded by investments in community amenities, such as improvements to the Community Information and Documentation Centres.

The initial focus of these outreaches could include the following:

• Political and socio-economic history of Kenya – especially important because of perceptions that some Kenyans

are “poor because they are lazy, while the rich are hardworking!”

• Leadership and National Values• Public Service• Equity• Separation of Powers: Executive, Legislature and

Judiciary• Devolution – the six bills• Taxation and Revenue Sharing• Security Structures• Natural Resource Management• International Laws

Besides on-going education and capacity building, non-state actors need to promote the capacity for citizen participation. This is especially important as the country approaches the eve of the first elections under the new constitution, which will usher in devolution. Thus, among the areas of focus for the development of participation capacity will include:

• Registration of voters• Interaction with political parties• Finalisation of electoral boundaries (constituencies and

wards)• Elections – voting and monitoring• Nominations – Parliament and CA• Development planning• Budgeting and implementation• Auditing development interventions: whistle-blowing;

and citizens’ report cards, among others; and • Legislation – Parliament and CA



Introduction After two decades of debates, Kenya eventually promulgated a New Constitution on the 27th August 2010. Amongst its most far-reaching provisions was the devolution of gov-ernance to 47 counties. The promulgation was significant because previously the National Alliance Rainbow Coalition [NARC] party government had failed to deliver its promise of ‘a New Constitution in 100 days’ of its accession to power in 2003. Given that NARC had a very broad regional and ethnic support base, the rejection at the 2005 referendum of its reworked people-driven Bomas Draft Constitution (2002) was very significant. The New Constitution – Constitution of Kenya 2010 – owes much for its finalization to the National Accord designed to reconcile Kenyans after the post-2007 election violence. While significantly underscoring the separation of powers between the Executive, Legislature and Judiciary, the Constitution also devolves governance to 47 counties. The focus of this report is on how to exploit the opportunities of-fered by devolution.

Signed in February 2008, the National Accord incorporated an Agenda Four which listed several time-bound reforms to en-sure that new legal and institutional frameworks would be in place to secure plausible democratic elections in 2012. Ahead of the 2010 referendum on the Proposed Constitution, the overtly ‘contentious issues’ included provisions for abortion, the inclusion of the Kadhi Courts, and the design of national land management. However, the underlying issues also included the transfer of the hitherto over-centralized powers of the presidency to other institutions (notably Parliament), and the diffusion of central government through devolution to counties. Consequent to the referendum victory and the Constitution’s promulgation, the government appointed the Task Force on Devolution in Kenya [TFDK] to review interna-tional best practices and to gather public and professional perceptions on how to actualize devolution. While TFDK has completed and validated its draft report across the country, some issues remain unresolved, especially those linked to the espousal of equity, the underlying principle of devolu-tion. Given nature-based and governance induced inequali-ties across the country, counties will be at different levels of preparedness to become operational and hence bringing into effect/operation the Constitution of Kenya 2010 provisions on devolution2. Consequently, it is imperative that non-state actors, including civil society organisations [CSO], be among those agencies that assume an intermediary role in improving the people’s understanding of opportunities and risks of con-stitutional devolution. This is the context in which research

was undertaken leading to the present report.From independence, founding President Kenyatta (1964-1978) repeatedly revised the constitution to increasingly centre power on himself while closing opportunities for citizen participation in democratic governance. Moi (1978-2002) pursued the same strategy, most notably transforming the country into a de jure single party state. Halfway through his 24-year tenure in 1990, however, opposition politicians backed by increasingly assertive CSOs (and international liber-alizing trends), began to make inroads against Moi’s dictator-ship, starting with the 1991 return of constitutional multi-party politics. However, 1964 had seen Kenyatta do away with constitutional devolution – dubbed majimbo3, which the 1961 Lancaster House constitutional talks had included to protect the ‘small tribes’ united under the Kenya African Democratic Union [KADU] party against domination by the ‘big tribes’ united in Kenyatta’s Kenya African National Union [KANU]. Consequently, into independence, the central government dominated service delivery as the weak resource base of local authorities transformed them into mere spectators.

In terms of improving service delivery, among the most notable reforms was the 1984 launch of the District Focus for Rural Development [DFRD], a noble initiative to take plan-ning to the grassroots (RoK, 1995). However, its potential was hampered by the persisting centralization of budget resources in government ministries. The country’s development failures were evident in the record 57 per cent rate of poverty by the turn of the Millennium. Various ad hoc decentralizing reforms culminating in the 2003 Constituency Development Fund [CDF] have impacted inconsistently on development, under-scoring the persisting demands for constitutional devolution that have been realized in Constitution (2010).

The principle of equity is an underlying theme throughout the Constitution. In summary, the principle requires that equals are treated equally, and unequals appropriately unequally. This principle is critical for redressing the effects of the country’s regionally varied natural resource endowments and the historical injustices of governance that have undermined Kenya’s transformation into a cohesive nation-state. Kenya’s independence development blue-print, Sessional Paper No. 10 of 1965, repeatedly invoked equity, but effectively set the country off on an inequitable development path (RoK, 1965). It directing scarce investment resources to those ‘regions with the greatest absorptive capacity’, consigning the rest of the country to a secondary status of dependence on a trickle-


down from the more developed regions.4 This background partially explains North Eastern province’s modest 2009Human Development Index [HDI] of 0.417 compared to Nai-robi’s 0.653, or to a national average of 0.561.5 In recognizing the role of equity in addressing such undesirable welfare dif-ferences, the Constitutionamongst other things, provides for an Equalisation Fund (Article 204) designed “only to provide basic services… to bring (their) quality (in deprived) areas to the level generally enjoyed by the rest of the nation…”

Constitution of Kenya 2010 establishes a Commission on Revenue Allocation [CRA] (Article 215) whose principal function is to recommend the basis of sharing of national revenues “between the national and county governments (and) among the county governments” (Article 216). Article 203 (2) provides that the money set aside for the counties – deposited in the County Revenue Fund [CRF] – be at least 15 percent of all government revenue, with one of CRA’s roles being to determine what the actual proportion should be. Another important role for CRA is to divide the CRF resources equitably, that is according to relative need, among the 47 counties. Equity requires affirmative action; that resources be shared in a way that enables less developed counties to re-duce the welfare gap between them and the more developed ones, but without denying resources to the latter with which to progress further.

This report was commissioned by the Kenyan Civil Society Strengthening Program [KCSSP] which targets non-state actors

in the realm of democratic governance, peace building and natural resource management. KCSSP targets the non-state actors that have the greatest potential to build large constitu-encies for critical reforms needed in the democratic gover-nance and natural resources management. The report identi-fies opportunities that can enable non-state actors to interact with Kenyan citizens to improve their capacity to exploit the opportunities offered by the Constitution to simultaneously raise the lot of the disadvantaged and improve on the status of the better off areas of the country. The financial costs of devolution will be great, given the structures provided for by the TFDK bills. But, Kenya has a great potential to meet the challenge through improved efficiency of governance, such as through improved tax revenue collection and curbs on cor-ruption. In any case, centralized government failed to improve welfare in North Eastern province in 50 years; so if devolved government can succeed, then the higher expenditure will have been worthwhile.

After highlighting the methodology of the study in Section 2, Section 3 reviews the history of decentralized governance in Kenya and the development attainments of four decades of independence. Section 4 reviews the status of devolution on the African continent. Constitution 2010’s provisions for devolution are presented in Section 5 and evaluated in the following section. Section 7 summarises the findings of the study and outlines the way forward.


Methodology of the Study This section explains the methodology that was used to investigate perceptions on devolution and the management

of natural resources. Since the research involved some field data collection, the section explains the rationale behind the sample of counties selected.

KCSSP was established to strategically target non-state actors “with the greatest potential to build large constituencies for critical reforms needed in the democratic governance and natural resource management.” Consequent to the establish-ment of both TFDK and a Ministerial Steering Committee on devolution, programmes such as KCSSP are interested in contributing to the design of an effective system that can deliver the goals of constitutional devolution vis a vis the

development needs of Kenyans. Critical for this endeavour is the informed participation of communities, as provided by the Devolved Government Bill. The research behind the current report thus focused on the six questions listed in Table 2.1.These research questions and objectives, and the overall terms of reference of the study were interpreted in an Inception Report submitted at the onset of the assignment.


Table 2.1: The Research Questions and Study Objectives

Research Questions Objectives

1. What aspects of the structure of devolved governments need to be clarified further?

To determine the aspects of the devolved system of government that requires elaboration and should be the subject of policy and legislation

2. How will revenue be generated for the devolved system of govern-ment and the national government?

To analyse and propose alternatives for revenue collection for the devolved governments and the national government

3. How will revenue be shared between the devolved system of government and the national government

To analyse and propose options for revenue sharing between the devolved governments and the national government

4. How should the design of the new system resolve apparent contradictions with some of the aspects of the old system (e.g. the provincial administration and the decentralized funds, notably the Constituency Development Fund)

To identify and propose mechanisms for resolving apparent contradic-tions between the old system of government and the new system

5. How will shared and exclusive natural resources be managed by the different levels of government?

To identify natural resource management concerns for the new system of government and propose suitable management approaches.

6. What is the most effective way of providing for citizen participation and oversight to mitigate current public financial management challenges (e.g. corruption)?

To propose mechanisms and structures for effective citizen oversight and participation in the management of the devolved governments

Source: KCSSP TOR

At the April 2011 commissioning of the current report, KCSSP was aware that TFDK had already completed a month-long field data collection exercise covering multiple sites across all 47 counties. TFDK’s output would necessarily reflect a middle ground among the potentially diverse views reflecting cur-rent differences in the development status of counties, and individuals and groups within and across them. Consequently, KCSSP decided to continue with its assignment to see if it could tease out nuanced perceptions on the issues surround-ing devolution, given KCSSP’s specific objective of empower-ing non-state actors in the realms of democratic governance and natural resource management. Some understanding of divergence of views across counties, or among individuals or groups within counties, would enrich the design and execu-tion KCSSP’s capacity building initiatives.

Consequently, KCSSP decided to undertake a review of the lit-erature on devolution whose output would provide a platform for evaluating the devolution provisions of the Constitution. The review also included Kenyan documents on decentraliza-tion and devolution, including draft devolution report (TFDG, 2011), and the records of the deliberations of the Committee of Experts on the Constitution. The second methodological approach to addressing Table 2.1’s research questions would be to undertake key informant interviews with government and non-government stakeholders. The third data collection approach of the study was to undertake Focus Group Discus-sions [FGD] in a sample of representative counties across the country. Besides ensuring that a county was included from each province (except Nairobi), the issues contributing to the choice of the seven counties settled on included the following:

• Wealth/poverty differentials – Muranga vs. Garissa; • Nearness to international borders – Garissa, Migori;• Natural resource endowment – Muranga, Embu;• Multi-ethnicity/’cosmopolitanism – Laikipia, Migori;• Religion – Kilifi, Garissa (for Islam);• Pastoralism/aridity – Garissa, Kilifi; and• Population density – Bungoma;

District Development Officers [DDO] organized their respec-tive counties’ FGDs of 10 individuals each. An effort was made to ensure the groups had a representative sample of county stakeholders, including a local councillor, women and youth leaders, religious leaders and other stakeholder categories (see Appendix Table 2.1). The FGDs were conducted at venues selected by the DDO, often in their District Information and Documentation Centre meeting room. The FGD agenda fol-lowed the research questions and objectives listed in Table 2.1. An assistant recorded the deliberations during each FGD. At the commencement of the FGD, an assessment was made of the level of understanding of team members of the Consti-tution in general, and of the chapters pertinent to devolution, that is chapters 11 on Devolution and 12 on Public Finance, as well as the related First, Fourth, Fifth and (relevant sections of the) Sixth Schedules. Where it was necessary, these elements of the Constitution were reviewed in some detail.

The six TFDG bills designed to operationalise devolution have been reviewed and an extensive devolution organogram generated (see Figure 5.1). The organogram should improve understanding of the somewhat complex network of institu-tions that is proposed by the TFDG to make up the devolved government system in Kenya.


3. Decentralisation and Service Delivery in Kenya This section reviews the history of governance in Kenya to the 2010 promulgation of the new constitution. It summarises how colonial policies built on varied natural resource endowments to create regional inequalities favouring the White Highlands. It also outlines how successive, extremely centralised independence-era Kenyan governments have failed to address welfare inequalities despite many reforms – including decentralizing ones – in the name of such an objective. It closes with a snap-shot of the extents of inequalities across the country.

Governance under colonialism Administration in colonial Kenya was centered on the Gov-ernor who presided over a racially discriminative system, where the Europeans sat above the Asians who in turn sat above the Africans. Traditional African chiefs were replaced by colonial ones who ruthlessly oversaw the implementation of the colonial agenda most notably, the collection of the taxes that financed the colony. Discrimination in urban areas6 built on the original colonial expropriation of regions with

the greatest agriculture potential for exclusive white settle-ment. This creation of the White Highlands restricted Africans to the ‘native reserves’ considered geo-climatically hostile for European settlement. Table 3.1 presents the country’s varied agro-ecological zones [AEZ], whose characteristics were instrumental in the choice of AEZs II and III for exclusive European settlement.7

Table 3.1: Kenya’s Agro-Ecological Zones

Zone Altitude Rainfall Area (sq km)

Share of Kenya (%)

I. Agro-Alpine (Mts Kenya and Elgon) Above 2,700m 800 0.1

II. High Potential (Meru, Embu, Kirinyaga and Nyeri; Kericho and Nyahururu, Kitale and Webuye).

1,980–2,700m 1,000mm 53,000 9.3

III. Medium Potential (Nyanza, Western and Central provinces, much of Central Rift-Valley [Nandi, Nakuru, Bomet, Eldoret, Kitale] and a strip of the Coast Province)

900–1,800m 950–1,500mm 53,000 9.3

IV. Semi-Arid (Naivasha, Laikipia and Machakos districts; much of central and south-ern Coast Province).

900–1,800m 500–1,000mm 48,200 8.5

V. Arid (Baringo, Turkana, lower Makueni and most of North Eastern Province 300– 600mm 300,000 52.9

VI. Very arid - Marsabit, Turkana, Mandera and Wajir Districts. 200 – 400mm 112,000 19.8

VII. Deserts – Chalbi

VIII. Rest (waters etc) 15,600 2.6

Source: Infonet–biodivision at http://www.infonet-biovision.org/default/ct/690/agrozones

The original primary British interest in the region was the control of the source of the River Nile at Lake Victoria, which would be facilitated by the investment in the Kenya-Uganda railway. The railway provided transport for European settler agriculture, which in turn financed the colonial government, through tax revenues largely generated from forced African labour.8 These enterprises constituted a highly centralized service delivery system which focused resources on the minority white population at the expense of the majority Africans.9 The urban and rural distribution of the whites was significant in determining the distribution of socio-economic infrastructure investment, which only benefited Africans who happened to be in, or near the White Highlands. Thus, Afri-cans outside the White Highlands were largely excluded from access to socio-economic infrastructure, except in instances where missionaries offered such services.

The desire by the settlers to remain in the country beyond the 1950s significantly defined the issues shaping Kenyan politics as the country approached independence. Fearing that Africans would avenge colonial injustices, the settlers caused a split among the African nationalists heading to the 1959-61 Lancaster House independence talks. They instigated the launch of the KADU party as an umbrella for the ‘small tribes’ who allegedly feared they would be mistreated by the ‘big tribes’ in the KANU party.10 Thus, one of the products of the Lancaster talks was a provision for constitutional devolution into majimbos presided over by senators who sat in the Sen-ate, the other house in the bi-cameral Parliament being the National Assembly. A year after independence in 1963, Ke-nyatta transformed Kenya into a constitutional republic with himself as the president. Another year later, he ‘convinced’ KADU to dissolve itself, paving the way for a centralised state.


Into independence: The Kenyatta yearsAround this time, the government published its develop-ment blueprint, Sessional Paper No. 10 of 1965 – hereafter SP 10/1965, which dwelt at length on equity as a means of eradicating poverty, disease and ignorance. However, the paper also provided that ‘scarce government investment resources would be focused on areas with the greatest absorptive capacity’. The expectation was that the rest of the country would wait for the trickle-down of the surpluses from such initial investments. Significantly, it was the higher potential AEZs that had been favoured by colonial infrastruc-ture investments that had acquired such ‘absorptive capacity’. They would be the first to benefit from initial independence era investments, deepening inequalities between them and the rest of the country. Evidence of the unequal public spend-ing outcomes of SP 10/1965’s strategy is well documented in Bigsten (1980). Besides such biased budget spending, various other activities also worked to enhance disparities in service delivery and asset accumulation. While these measures largely favoured the Kikuyu, it is true that some Kikuyus remained marginalized while some non-Kikuyus benefited.

Immediately after independence, the Kenya government adopted a policy to indigenize the public service and the economy.11 This was especially important after the 1964 military mutinies in all the three East African countries over racially determined remuneration structures. Thus, for example, colonialism had barred Africans from commerce and industry to secure the supply of their labour to settler ag-riculture – hence for example, the dominance of Asians in the duka trade. Into independence, therefore, the government undertook the indigenization of trading, the hitherto exclu-sively Asian Bazaar Street in Nairobi becoming Biashara Street even as it incorporated African business people. To enable such entry of Africans into commerce and industry, the gov-ernment established various national sources of investment capital whose operations were reportedly quite ethnically contrived.12 Thus, even as budgetary spending opened up the development gap between the former White Highlands and the rest of the country, government-sponsored non-budget investments also favoured people from the same area. By 1965, prominent independence struggle nationalists would lament Kenyatta’s substitution of their ideals with ethnically-driven capitalist values (Odinga, 1965; Kaggia, 1975).

Through SP 10/1965’s promise of free or heavily subsidized social services to eradicate poverty, disease and ignorance, great steps were made during the first independence decade when economic growth provided resources to finance the

delivery of social services which had been shifted in 1966 from the local authorities to the central government. Service delivery weathered the first global oil crisis (1973), but the impact of the second one (1979) saw the onset of adverse effects. Meanwhile, weak scrutiny over public finances had encouraged the growing mismanagement of government resources, further undermining service delivery.13 Such mis-management had partially been created by the 1971 Ndegwa Report that allowed public officers to also indulge in private business (Republic of Kenya, 1971), in total disregard of the resulting conflicts of interest.

As the flow of budget resources to sub-national levels became increasingly erratic, social fund raising, harambee, became the main source of social sector infrastructure investment (Mbithi and Rassmusson, 1977). This increased regional inequalities as the performance of harambee favoured economically better-off areas of the country (Miguel, 2000): besides such region’s elites having more money, they invari-ably also had better connections in the national government, providing easier access to available state resources.

Moi: Following Kenyatta’s footstepsThese practices were extended into Moi’s presidency (1978) during which he chose to follow in his predecessors footsteps (fuata nyayo). However, his new elite would come largely from his Rift Valley backyard of the Kalenjin. The economic stagnation into the 1980s of sub-Saharan Africa [SSA] un-dermined the resources with which to fund free and heavily subsidized public social services – as reported in the Berg Report (World Bank, 1981). The need for international budget support caused Kenya to lead other SSA governments into adopting the neo-liberal Structural Adjustment Programmes [SAP] of the Bretton Woods institutions. Under SAPs, the In-ternational Monetary Fund [IMF] supervised macro-economic reforms while the World Bank oversaw the restructuring of economies. SAP conditionalities dictated the retreat of the state to concentrate on policy and regulation while service delivery would be transferred to private entrepreneurs.14 For social sector services, SAP dictated cost-sharing and/or cost recovery for publicly provisioned services, often undermin-ing access among the poor. The Kenya government was also required to divest in state corporations, and to review public sector employment, leading to retrenchment and early retire-ments. SAP reforms also abolished the Tri-Partite Agreement (between the government, unions and employers) which had made it difficult for employers to lay off surplus labour. While Kenya’s adherence to SAP reforms was erratic (Mosley, 1995), the reforms it did undertake had modest positive impacts on service delivery (Mbugua, 1993).15


Despite the 1966 off-loading of social service delivery to the central government, Kenya’s parallel local government system continued in a much diminished role, given that its main rev-enue source, the Graduated Personal Tax was also eventually removed. The authorities’ reliance on more modest revenue sources, such as land rates and produce Cess, coupled with the pervasive weak scrutiny of public finances, led to high levels of indebtedness and the inability to even pay salaries. Consequently, the early 1990s saw the launch under the Ke-nya Local Government Reform Programme, of the short-lived local authority service charge designed to boost revenues. A government rescue package came in 1998 in the form of the Local Authority Transfer Fund [LATF] designed to finance debt repayments and provide services prioritized through the Local Authority Service Delivery Action Plan [LASDAP]16. Into the Millennium, urban local authorities also took to the ag-gressive collection of parking fees, while nationwide reforms were undertaken in water supply management that delegated provisioning to a complex network of institutions, raising ad-ditional revenues for the various authorities.

In 1971, the government launched the short-lived Special Rural Development Programme [SRDP] which only took off in five out of the 15 arid and semi-arid districts it had originally targeted (Ergas, 1982). The collapse of SRDP has been attributed to its top-down approach which undermined local ownership; but the programme has been commended for the lesson on the need to integrate agriculture strategies with rural development strategies. In 1983, Moi returned to the idea of sub-national development prioritization, planning and implementation with District Focus for Rural Develop-ment (DFRD) which however, failed because of its lack of independent funding, as well as the domination of its District Development Committee base by the District Commissioner and district sector heads.

Besides the social sector, SAPs also targeted roads, energy and communications. The Roads Maintenance Levy Fund [RMLF] (1994) witnessed weak collections through toll stations, but collection improved through a direct fuel levy alongside other public financial management reforms. The initial central man-agement of RMLF by the Kenya Roads Board has given way to separate highway, rural and urban roads authorities, improv-ing performance considerably – in the context of results-based management reforms. On energy, the early reforms separated power generation from its distribution; but more recent reforms have distinguished transmission from market-ing functions. While privatization has not borne fruits in the

railway sector, it has made the national airline highly competi-tive internationally. Reforms at the Communications Commis-sion of Kenya have also borne extensive fruits. Privatization of fixed and mobile telephony has resulted in competition that has vastly improved service delivery after many years in which especially the Moi regime hampered access (Arunga and Kahora, 2000).

Kibaki: CDF and economic recoveryWithin central government, however, reforms have not performed as commendably. The government undertook its inaugural Public Expenditure Review [PER] in 1997, which revealed weak links between policy, planning and budget execution. This adverse reality was ably reflected in national poverty hitting an independence-era peak of 57 per cent towards the year 2000. The 1999/2000 introduction of the Medium Term Expenditure Framework [MTEF] budgeting approach was designed to improve the links between policy, planning and budgeting, but has had modest success. For example, the compliance rate for expenditure management indicators for 2003 and 2004 stood at 20 per cent and 25 per cent respectively (Government of Kenya, 2004). A further rev-elation of the PERs was the weak attention to development or investment spending (which can target potential poverty alleviating areas): the 2004 PER found the spending level at 53 per cent between financial years 1998/99 and 2002/03. Annual PERs have since been institutionalized.

The weak flow of budget resources to district sector officers had increasingly undermined their service delivery, raising the profile of harambee fund raising. A partial reason for this anomaly was Parliament’s weak scrutiny over public resourc-es, which enabled senior ministry officials – especially those with the ‘right’ political god-fathers – to divert budgeted re-sources between districts and across activities. Thus, haram-bee fund raising became the centre-piece of local develop-ment initiatives, providing a platform upon which serving and aspiring politicians could market themselves (Nyanjom, 2010). The growing burden of demands for harambee funds led to Parliament’s 2003 launch of CDF, amounting to 3.5 per cent of ordinary government revenues, managed by the sitting parliamentarian as patron over a largely handpicked commit-tee.17 CDF has had some impressive results; but audits have revealed extensive improprieties. The Free Primary Educa-tion Fund and the Constituency Aids Control Committee fund joined CDF, LATF and RMLF as decentralized funds designed to avert the direct control of ministries.


The NARC victory at the 2002 general elections was based on the broadest ethnic and regional platform of the inde-pendence period. The government launched the Economic Recovery Strategy 2003-07 [ERS] which raised the growth rate from near zero during Moi’s last year in power, to nearly 7 per cent by 2007. Composed of elements of the Moi era civil soci-ety, the NARC government opened up political and economic space. Yet, the many fine promises of the NARC govern-ment were soon thrown out of the door as a kitchen cabinet developed around the President – dubbed in the media as the ‘Mt Kenya mafia’. Prominent among the disappointments was the failure to deliver ‘a new constitution in 100 days’. The government also failed to finalize the Goldenberg Scandal which looted about Ksh 57 billion from the Exchequer in the early 1990s. Meanwhile, an even grander scam was emerging in the form of the phantom Anglo-Leasing contracts in which payments were made against no deliveries (see Wrong, 2009). By 2005, these misgivings against a divided NARC govern-ment led to the rejection of the Proposed Constitution at a referendum.

One argument behind decentralised funds had been that they might reduce horizontal inequalities across regions by providing grassroots resources with which communities can realize their own priorities. Yet, Kiringai (2006) has shown the management of such decentralised funds to have little sen-sitivity for regional welfare disparities. Kiringa (2006) points out that the District Budgetary and Decentralized Funds FY 1999/2000 to 2003/04 demonstrate that the pattern of ag-gregate district budget and decentralized spending per head hardly discriminates for poverty across districts. The Central Province districts which benefited from colonial and indepen-dence era prejudices in resource allocation, and consequently have poverty levels below 30 per cent receive the same aggregate allocations per head as the districts of Western and Nyanza provinces which inherited little colonial investment (‘absorptive capacity’). Their poverty levels are generally above 60 per cent. One cause of this anomalous situation is that while CDF allocations are rightly based on a formula, it is weak on equity, allocating 75 per cent of its resources equally across the 210 constituencies, and only 25 per cent based on constituency poverty rates.

The aggregate effect of colonial and independence govern-ment policies and practices has been to exacerbate regional inequalities that were initially based on the natural resource disparities reflected in Table 3.1’s AEZs. Yet, Libya and Israel show what the right political will can do to harness inherited disadvantages of nature for the welfare of a country’s citi-

zens18. Within Kenya, Tiffen et al (1994) have also illustrated how otherwise marginal environments can be harnessed to produce the means for welfare enhancement.

The inequalities of centralised governance Table 3.2 illustrates the extent of welfare inequalities across the Kenya. While the average Kenyan may not be aware of these statistics, they are nonetheless conscious of disparities in well-being – such as through media reported outputs of harambee activities. Note for example, the twofold disparity in the range of provincial poverty levels and facility delivery rates, the three-fold range in primary enrolment rates and the eight-fold difference in secondary enrolment rates.

Table 3.2: Provincial Welfare Indicators (%), 200719

Province Rural Poverty (2005)

Immunisation Coverage (2007)

Facility deliveries (2006)

Net primary Enrolment (2007)

Net Secondary Enrolment (2007)

Central 30 85 71.8 82.5 33.3

Coast 70 78 31.7 80.8 13.7

Eastern 51 78 37.6 98.3 25.3

North Eastern

75 81 11.7 27.5 4.3

Nyanza 58 66 46.7 98.3 27.0

Rift Valley 50 70 33.6 97.8 22.9

Western 54 66 25.7 99.0 23.9

Nairobi - 78 77.0 29.0 25.7

Source: KIPPRA (2009), various tables and figures

In summary In the centralized governance system that substituted devolu-tion in 1965, a powerful president presided over a cabinet of quite powerful ministers.20 The cabinet was replicated over five sub-national tiers, viz. province, district, division, location and sub-location. The president chose (his) cabinet ministers and their assistants from elected or nominated parliamentar-ians, resulting in extensive subservience, especially during one-party rule. The president also directly or indirectly (through cabinet ministers) appointed all board members and senior managers of state corporations. Significantly, Kenya has held general elections every five years since independence, and the turn-over among parliamentarians has been quite remarkable.

Besides producing parliamentarians, the elections have also produced the political leaders of Kenyan local authorities, to which bureaucrats and technocrats are seconded by the Local Government ministry. Bereft of prime revenue generating op-portunities, and in the context of over-centralisation of func-


tions in central government ministries, most local authorities have been mere shells. Thus, the elected leaders nearest to the people have had very little scope for serving the elec-tors, leaving the bulk of development activity in the hands of remotely situated government ministries in Nairobi. The Planning ministry has traditionally produced a five-year national development plan from which in theory, costed An-nual Operational Plans [AOP] are derived for ministries, which result in the national budget. The government launched its long term plan, Kenya Vision 2030, in 2008, which provides the background against which ministries now produce their respective five-year sectoral medium term plans. Since the late 1970s, districts also produced costed five-year develop-ment plans from which respective sector AOPs were gener-ated. In theory, the sectoral operational plans of all districts would be aggregated to create a particular ministry’s AOP and budget. In practice, however, this is not always the case, meaning that district priorities do not enter the national-level budget directly. Further, financial regulations require that any changes to the ministerial budgets by Parliament

be approved by Treasury; yet, wanton impunity has seen ministers often transfer money between activities and across regions without authority. Districts on the margin of national politics have suffered most from such mismanagement of public finances. Such misconduct has merely undermined the effectiveness of public spending, as repeatedly highlighted by the PERs.

Such circumstances have fuelled the sustained demand for the country to go beyond Kenya’s historical cosmetic decen-tralization described above to substantive constitutional devo-lution, such as is provided by the Constitution (2010). Political awareness has grown in Kenya during the two decade-long demand for the comprehensive review of the old constitution. The debates arising have caused the proverbial ‘Wanjiku’21 to know that her poor welfare must be related to impunity of the old constitution. She can therefore understand why some well-off people continue to resist constitutional changes that reduce the excessive control of public resources by the central government, such as through devolution to counties.


4. Devolution: a review of the literature After presenting a history of centralized governance in Kenya that has failed to raise human welfare by diminishing poverty and inequalities, this section looks at the theory and practice of decentralized governance in general, and devolution in particular. It finds that while countries practice some form or other of decentralization, governments in sub-Saharan Africa are reluctant to surrender control of money to sub-national levels. It also finds that while there are risks to decentralization and devolution – such as the transfer of corruption to sub-national levels, the reforms can enhance democracy and participation towards welfare improvements.

from a central authority to the lowest feasible sub-centre. Within government, such functions could include bottom-up activities, such as analysing contexts to identify underlying problems and making policies and planning for their resolu-tion. Further functions could include revenue-generation, budget execution, accounting and auditing, and monitoring and evaluation.

4.2 Rationale for devolutionProponents of decentralisation in general, and devolution in particular, often cite efficiency, equity and participation or empowerment or citizen participation as the underlying motives. Because devolution takes service delivery away from the central(ised) government, it is presumed to respond to the inefficiencies of the latter (Commonwealth Secre-tariat and Commonwealth Local Government Forum,2001). The persistent failure of centralised government to deliver, especially if the failure is selective, can also induce secession-ist tendencies, which devolution can stem. In this context, poverty reduction has also been cited among the rationales for devolution; but over whose impact, however, the jury is still out (Cabral, 2011). That devolution entails elections at the sub-national level also suggests democratic deepening which provides electors with an improved opportunity to choose from accessible local candidates, rather than nation level can-didates they may never interact with. Thus, devolution might improve the scope for delivering micro-concerns, such as the provisions of a Bill of Rights, and aspects of affirmative action, which a central government might pay inadequate attention to. However, Cabral warns that devolution is not a one-stop remedy for problems of inefficiency, inequity and exclusion: devolution structures must be optimal to genuinely aspire for those goals, lest they breed their own inefficiencies.

4.3 Optimising devolution prospectsDevolution outcomes depend on the country context within which it is to be undertaken (Cabral, 2011). Political goodwill is significant for creating an environment free of acrimony in which the distribution of roles and resources between the central government and devolved agencies are to work. Thus, effective democratic values will support devolution a lot more

All production institutions – households, companies, coun-tries – undertake some form of decentralization, the only difference being in the extents – which reflect the rationale behind decentralizing, and is significant for choosing between the various modes of decentralization. Cabral’s (2011) well researched literature review on devolution notes that decen-tralization is a non-monolithic, vertical sharing of power, but also recognizes the problems people have with its meaning, which is sometimes greatly influenced by country specific conditions.

4.1 Concepts surrounding devolutionDevolution is a particular kind of decentralization, the others being deconcentration, delegation and – some argue – priva-tization. Cabral (2011) notes quite rightly that decentraliza-tion is a complex mix of activities. Deconcentration relocates execution to one or more lower administrative or geographic tiers, while delegation takes a larger package of responsi-bilities outside the mother realm, such as a government delegating provisioning to a state corporation/parastatal or semi-autonomous government agency with an autonomous management framework. However, the most far-reaching form of decentralization is devolution – also referred to as democratic decentralisation - which often involves ceding power of revenue generation and expenditure (execution) to an elected entity, such as a local authority.

A further classification distinguishes administrative decen-tralisation from political decentralisation. The former merely focuses on decentralising systems, such as personnel, which remain highly dependent of the centre, while the latter involves electing managers of the sub-national entities, often accompanied by some autonomy, such as in local authori-ties. This classification also provides for fiscal decentralisation which primarily involves sub-national management of taxes. Cabral (2011) also distinguishes privatisation or deregulation as separate categories of decentralisation, a position that is difficult to rationalise since they both involve the transfer of ownership or authority outside the ‘parent’ entity.However, it is conceived decentralisation’s underlying princi-pal of subsidiarity involves the transfer of selected functions


than a non-democratic context would, the former providing greater space for mobilisation of grassroots participation, and of stakeholders. Political support is likely to ensure that adequate legal and institutional frameworks exist for the enterprise. For example, devolution based on a national con-stitution is preferable to that based on any other legal or non-legal framework, as a constitution is arguably less susceptible to the whims of leaders. Such a context is also likely to sustain policy coherence and an environment in which to monitor accountability.

Devolution is also likely to work better in the context of posi-tive economic performance that avails the resources, such as national revenues, with which the national and sub-national governments can deliver their respective responsibilities. Dis-parities in resource endowment across devolved units often reflect similar disparities in capacities for autonomy. Conse-quently, the ability of the central government to subsidise sub-national operations becomes critical.

A third critical determinant of devolution outcomes is the design of the enterprise. Besides its rooting in a constitution – or legislation, at least, devolution requires an unambigu-ous assignation of roles and resources between the national government and the devolved entities, as well as among the devolved entities. Along these lines, the first issue is to assign expenditure, which amounts to sharing functions between the national and sub-national levels – sub-national govern-ments [SNG] – in a way that ensures there is neither duplica-tion nor gaps in service delivery. In this respect, the existence of a human resource capacity for delivering such services cannot be over-emphasised.

To ensure such delivery of services, a further important area in the design of devolution is to assign revenues. Devolved units also face varied capacities to generate own resources, meaning they must be a scope for subvention. The small size of the formal sectors of developing countries limits the scope for formal tax-based revenue generation. This is especially so for those largely rural-based SNGs whose preponderant subsistence livelihoods are outside the taxation-targeted market economy. Such fiscally weak SNGs must consequently benefit from grants from the central government, referred to as inter-governmental fiscal transfers [IGFT] (Decentralisation Thematic Team, n.d.).

Transfers may be ad hoc, meaning the amounts granted are neither set in size, nor frequency, or both. Alternatively, and preferably, transfers can be formula-based, meaning for

example, that a change in any of the elements of the formula automatically changes the size of the grant. National govern-ments can provide conditions for the use of IGFTs (‘condi-tional grants’), or such grants can be unconditional, meaning recipient SNGs may determine their own priorities of use. Broadly, the purpose for such transfers include the equaliza-tion of resources across all SNGs, or they could simply address SNG weaknesses in collecting revenue; or finally, they could be designed to provide a vent for service delivery in SNGs that face unexpected burdens, such as an influx of displaced persons.

While transfers can even out inequalities in resource capaci-ties, it is important that attention is paid to other potential sources of inequality. Thus, for example, conscious decisions are necessary on the choice of boundaries and consequent SNG population sizes. Boundaries could be determined by nature – such as following rivers, mountains ranges or valleys, or they could respond to socio-economic realities, such as ethnicity, religion, language, history, race or socio-economic status. The foregoing considerations reflect the strong possi-bility of prospective SNGs being at different levels of readi-ness to assume their roles. This suggests it might be useful for the devolution framework to incorporate a staggered implementation.

As previously noted, while decentralization is in principle potentially good for efficiency, it is critical for the designers of the programme to ensure that its extent is optimal. Decentral-isation could for example, lead to excessive competition for investment resources among SNGs (Rodriguez-Pose and Gill, 2003). The other risks inherent in determining the optimal level of decentralization include the following:

• Ignorance and the capacity to participate: while partici-pation is good, it should be based on good information. Indeed, the desire for participation may be driven by a mere desire to rein in a rogue government, rather than the existence of an alternative, more efficacious agenda.

• Weak or non-existent sub-national institutions: given that the failure to rein in the adversities of nature con-tribute to individual and regional inequalities, institution-al underdevelopment in poor regions leaves them with inferior capacities to address such inequalities.

• Transfer of inefficiencies: decentralization is unlikely to resolve inefficiencies whose source has not been cor-rectly diagnosed. This can include the transfer of the excesses of the national level, such as corruption, to the sub-national level.


• Incestuous socio-economic enclaves: where devolution creates irrational enclaves, such as of ethnicity, religion or culture the short-term effect could be further margin-alization that in the long term requires more resources to redress.

These factors point to the need to take stock of the charac-teristics of the sub-national level to enable the design of a devolution framework that is responsive to revealed needs. An appropriate monitoring and evaluation framework is nec-essary which must involve citizens at the grassroots.

4.4 Devolution in practice

Decision-making in much of pre-colonial African society was based on consensus under the guidance of traditional chiefs. Such chiefs were often displaced by authoritarian chiefs under colonialism. Among the latter’s primary functions was the collection of punitive taxes designed to force the indigenous people to sell their labour to enterprises, such as the set-tler farms in Kenya’s ‘White Highlands’. Colonialism under-scored ethnic differences to undermine emerging nationalist consciousness, resulting in a many unsustainable political parties on the eve of independence. However, the foremost nationalists were able to convince the marginal parties to disband and form a united political front into independence. The underlying logic behind such unity was the conservation of scarce national resources to be channeled into what was

assumed to be an undisputed nationwide agenda to eradicate the universal evils of poverty disease and ignorance. Thus, the single political party system prevalent across the African continent perpetuated the unitary state inherited from colo-nialism. As the tyranny of the one-party unitary state became evident into the second independence decade22 – amidst the economic set-backs provoked by the dual 1970s oil crises -- demands grew for both multi-partyism and a decentralisation of the state. Resistance from incumbent leaders triggered the numerous military coups that became characteristic of SSA, a development that enhanced the centralised state.

The liberalizing World Bank and International Monetary Fund-ordained SAPs designed to jump-start African economies into


the 1980s also prompted an opening up of political space allowing for opposition politics. In turn, this has enabled political party differentiation within countries; but this has not necessarily weakened the central government’s control over the purse strings. Cabral’s (2011) exhaustive review of the literature on decentralization in Africa, and Kauzya’s (2007) selected country study recognize Ndegwa’s (2002) ‘stock-tak-ing survey’ to be the most comprehensive comparative study. One of Ndegwa’s findings was that, “(T)he degree of fiscal decentralization… is best revealed by the fact that in 19 out of 30 countries (of that study) local governments control less than 5% of the national expenditure.” This figure contrasts starkly with the levels of sub-national fiscal responsibility elsewhere in the world, such as the average 40 per cent of the Nordic countries. The most extreme form of decentralization is the federal state of which SSA only has four, viz. Comoros, Eritrea, Ethiopia and Nigeria. However, the continent has various experiments with constitutional devolution, the most significant probably being that of South Africa. Besides the perpetuated colonial heritage of the unitary state, Ndegwa ascribes weak fiscal decentralization to the prevalent institu-tional insecurity of African states (amidst persistent centrifu-

gal forces), as well as the weak sub-national capacities to generate and manage (fiscal) development resources. A study of decentralization in Africa is often therefore more a study of administrative and political decentralization than it is of fiscal decentralization. Ndegwa (2002) took stock of decentraliza-tion across 30 SSA countries based on the perceptions pro-vided by World Bank colleagues stationed in those countries23. The approach is therefore obviously subjective, and the use of national averages hides sectoral and/or regional differences, while the cross-sectional snapshot picture also does not allow consideration of important negative or positive changes which might have taken place over time. Nonetheless, Ndegwa’s findings on the aggregated country levels of administrative, political and fiscal decentralisation are presented in Chart 3.1. The chart shows the constitutionally devolved states of South Africa and Uganda to have the highest levels of decentraliza-tion. Interestingly, these unitary states have higher levels of decentralisation than the constitutional federal states of Nigeria, Eritrea and Ethiopia. Kenya was fourth on the extent of political decentralization, but performed much worse on administrative and fiscal decentralization, placing seventh and sixth respectively.

Chart 4.1: The Status of Decentralisation in Africa

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Source: Ndegwa (2002)

An interesting finding was that the former French and Portu-guese colonies were less decentralized than the Anglophone countries, probably explained by the former countries’ Roman law traditions. The exceptions of this colonial heritage are Mozambique and Rwanda which have severed ties with their former respective colonizers, the Portuguese and Belgians.

Ndegwa (2002) found that early administrative decentraliza-tion led to a more advanced form of political decentralisation. Among the highly decentralized countries, administrative decentralization closely tracked political decentralization, whereas among the weak decentralisers, it is political decen-tralization that trailed administrative decentralization. Consis-


tent with the mere five per cent control of public finance by SNGs, fiscal decentralization was poorest all round.

The importance of political will for decentralization is illus-trated by the experiences of three African countries reform-ing out of adverse contexts (Kauzya, 2007). South African devolution provided by the 1994 constitution was a response to the institutionalized inequalities of the apartheid years. In Rwanda, the policy measure responded to the 1994 geno-cide while in Uganda, the 1995 constitution sought to make amends arising from protracted civil war. The political will for decentralization in Uganda was sufficiently strong to enable a piloting of the programme in order to improve its design and implementation timetable. However, the Ugandan presidency has recently reportedly transformed decentralisation into a political weapon for controlling smaller counties. In Rwanda, contrary to expectations, deeper rationalization of the experi-ence led to a three-fold reduction in the number of local authorities, from 106 to 30.

In Cabral’s (2011) review of the efficiency impact of decen-tralization, she found that participation was significant for, but not the only important factor in enhancing efficiency. Planning and resources, and indeed, coordination among per-tinent ministries and agencies are also important. But Cabral also warns of the need to be wary of the motives behind elite support of decentralisation, as these may be self-serving. Indeed, Fjeldstad (2003) emphasises the need for strong institutions and information flows in the context of effective accountability frameworks among well-remunerated staff to deter corruption under decentralisation.

Peterson’s (2001) study of financing reforms in Ethiopia also underscores the need for successful devolution reforms to be evolutionary rather than revolutionary if devolution is to work, first understanding the administrative financing systems reforms that manage inputs before addressing the financial management aspects.


5. Constitutional Devolution in Kenya Section 3 considered the manner in which Kenya has hitherto been governed, and with what welfare outcomes. This section reviews the provisions for devolution in Kenya, notably Chapters 11 (Devolution) and 12 (Public Finance) of the Constitution. It does so keeping in mind some of the concerns raised in Section 4 on the design and implementation of devolution reforms.

national communications network. Yet, devolution also had its detractors, which made the finalization of the new consti-tution a tricky process. However, the process was greatly assisted by its being part of the time-bound Agenda Item Four reforms of the National Accord and Reconciliation Agreement that ended the 2008 post-election violence. One of the most contentious issues that the Committee of Experts[COE]on Constitution encountered during the draftsmanship of the Proposed Constitution of Kenya 2010, was what should be the numbers and boundaries of the counties in Kenya. This would have delayed the finalization of the Proposed Constitu-tion of Kenya, 2010. However, COE settled on the 47 districts that had been created by 1992, according to the provisions of the outgoing constitution to be the numbers and boundaries of counties24.

In line with improving governance, the Constitution’s Pre-amble declares and affirms the sovereign power belongs to the people of Kenya, thereby deviating from perception in the Old Constitution that supreme power belonged to the Presi-dent. Article 6 of the Constitution provides, Kenya is devolved into the 47 counties specified in the First Schedule, and that the national and county governments are ‘distinct’ and ‘inter-dependent’, as elaborated in the Fourth Schedule. Article 10 lists the various values and principles of national governance to include amongst others: patriotism; national unity; sharing and devolution of power; participation of the people; equity; social justice; non-discrimination; protection of the margin-alized; good governance; transparency and accountability; and sustainable development. Chapter Six has extensive provisions on leadership and integrity, which is one of the ways that people of Kenya can exercise their sovereignty by scrutinizing potential leaders and holding them to account based on the ethics enumerated in the chapter . Chapter Four on the Bill of Rights [BOR] has extensive provisions on rights and fundamental freedoms which include the economic and social rights (Article 43) and the family (Article 45) – are best monitored at the sub-national level.

Chapter Eight establishes Parliament, the National Assembly and the Senate (Articles 93 to 96). The Senate’s primary func-tion is to protect the interests of the counties and their gov-ernments, debating and approving bills concerning counties, sharing out the counties’ share of national revenues, which

As illustrated in the discussion of Section 3, Kenya’s peren-nial problem has been a governance problem, which has had an adverse effect on the management of budget and other resources for equitable national development; the poor out-comes were illustrated in Chart 3.1 and Table 3.2.

Kenya’s 1991 return to multi-partyism was the culmination of extended demands for good governance.. As the demands for a comprehensive review of the existing Constitution persisted Moi reluctantly agreed to piecemeal institutional and legisla-tive governance reforms. Thus, for example, the 1997 Inter-Parties Parliamentary Group agreement allowed opposition participation in overseeing the electoral process, while 1999 saw the establishment of the short-lived Kenya Anti-Corrup-tion Agency. Meanwhile, 2002 saw the establishment of an initially cosmetic Kenya National Commission of Human Rights [KNCHR]. However, stronger governance reforms came on board after the 2002 electoral defeat of the ultra-conservative KANU government, which consequently handed power to the widely supported NARC party in 2003. NARC instituted vari-ous far-reaching governance reforms, such as giving full life to KNCHR, and the enactment of various legislation, including the Anti-Corruption and Economic Crimes Act (2003), Pro-curement and Disposal of Public Goods Act (2005), and Public Officers Ethics Act (2003). However, it reneged on its election manifesto promise of a new constitution within first 100 days in office. This drove the persisting demand for a new constitu-tion upon which to anchor the new laws and institutions.

The promulgation of the New Constitution in 2010 was the realization of this latter desire. Various of provisions within it are devoted to the principles of good governance, whose implementation would provide a context within which to implement the devolution provided in Chapter Eleven. Indeed, the failure of Kenya’s original attempt at devolution arose precisely because it had no roots in the philosophies of the pre-eminent political parties: KANU was unashamedly unitarist while KADU only aspired for devolution at the behest of the settler community. In 2010, the demand for devolution grew from an arguably deeper-seated logic of securing broad-based good governance. Successive politically intolerant, over-centralized governments had provided scant opportunity for popular participation. This was especially the case for those Kenyans in the more remote areas under-served by the


shall not be less than 15 per cent of total revenue. Article 98 provides for 47 senators elected by the counties, 16 women members nominated from party lists, a man and woman representing the youth and another pair representing people with disabilities, and an ex-officio Speaker. Articles 110 to 112 address the special and ordinary bills concerning the county governments [CGs].

Chapters Eleven and Twelve address devolution specifically. Articles 174 and 175 list the nine objects of Kenyan devolu-tion (see Box 5.1), and the related principles, which include democracy, separation of powers, reliable revenues and gender sensitivity. Article 176 – read together with the First Schedule – provides for the CG made up of a county assem-bly [CA] and county executive committee [CEC], the assem-bly’s composition being listed in Article 177 while the CEC is elaborated upon in Article 179. Articles 180 to 182 discuss the offices of the governor and deputy governor – including the terms under which disciplinary action may be taken against them, while CEC and CA are discussed in Articles 183 and 185, respectively. The CG’s functions are listed in Part 3 of the chapter (Articles 186 and 187, read together with the Fourth

Schedule), while the relationships between the county and national governments is defined in Part 5, including how pos-sible conflicts between national and county legislations will be addressed. Part 4 provides that county boundaries may be varied and lists in Article 188(2) factors that should be taken into consideration when varying the boundaries; these include population density, costs of administration, geographical features, the views of communi-ties affected and infrastructure. Article 195 empowers CA to summon any person before it for evidence or information under powers similar to those of a High Court while Article 196 obliges CA to conduct its busi-ness in public and to promote citizen participation unless the speaker deems exclusion necessary.

Box 5.1: Article 174’s objec-tives of devolution include:

• Promoting democratic and ac-countable exercise of power;

• Fostering national unity amidst diversity;

• Enabling self-governance of the people towards their interroga-tion of the State;

• Recognising the right of com-munities to self-management and development;

• Protecting and promoting the rights and interests of minori-ties and marginalised groups;

• Promoting socio-economic development;

• Ensuring equitable sharing of national and local resources;

• Rationalising further decentrali-sation of State organs; and

• Enhancing checks and balances.


Beyond role assignation (Fourth Schedule), Chapter Twelve of the Constitution addresses public finance issues, includ-ing expenditure assignation which is critical for devolution. The public finance principles are listed in Article 201, and emphasize openness, accountability, public participation, and the promotion of an equitable society with fair taxation bur-dens and revenue sharing towards equitable development. Part 4 of the chapter establishes a Commission on Revenue Allocation [CRA] (Article 215) whose functions are listed to include recommending the basis of sharing revenues between the national and county governments, as well as among the latter (Article 216). In this undertaking, CRA will be guided by the considerations of Article 203. Besides an equitable share of national revenues, CG may access additional conditional or unconditional grants (Article 202) from the government.

CG dues shall be payable into their respective Revenue Funds from where it will be withdrawn through an Act of Parliament and with the approval of the Controller of Budget (Article 207). An important constitutional provision for CGs is Article 219’s requirement that the national government transfer county dues “without undue delay and without deduction…” Finally, in recognition of the vast regional (and other) inequali-ties across the country, Article 204 establishes an Equalisa-tion Fund worth 0.5 per cent of all government revenues. This fund is to be used for providing “basic services including water, roads, health facilities and electricity to marginalized areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible.”

In Part 3 of the chapter, the Constitution shares out the po-tential tax revenue sources, with Article 209 (1) allocating the main taxes to the national government, including income tax, value-added tax, customs duties and other dues on imports and exports, and excise duty. The CGs’ potential sources of revenue include property rates, entertainment taxes, and any other taxes legislated by Parliament. CGs may also borrow with the approval of their respective CA and the national government. Finally, Part 6 (Articles 226 and 227) of the Con-stitution provides for the control of public finances, including the public audit of all public entities as well as regulation of procurement of public goods.

The broad principles of devolution outlined above required that both legislation and institutions be in place for their operationalization, as is outlined by the Fifth Schedule. This was the purpose served by the Task Force on Devolution in Kenya, which undertook extensive nationwide consultations on the design of devolution. It completed its assignment by producing six bills, viz. County Government Financial Manage-ment Bill, Devolved Government Bill, Inter-Government Fiscal Relations Bill, Inter-government Relations Bill, Transition to Devolved Government Bill, and Urban Areas and Cities Bill. Notwithstanding the fact that only the last of these has been


passed into law, Figure 5.1 provides an organogram that attempts to relate the various institutions created by these legislations. One of the strongest points of this structure is that it locks the disbursement of budget resources to the existence of an integrated county development plan whose production must be widely consulted alongside its transpar-ent implementation.

The numbers of new institutions necessitated by these bills is vast, and will therefore impinge heavily on national revenues. Yet, the evidence of the process and outcomes of half a century of centralised development interventions is shown

in Chart 3.1 and Table 3.2. Devolution offers new possibilities which must be rationalised for costs, but must not be rejected just because of such anticipated costs are high. The gover-nance changes implied by the Constitution should lead to extensive savings in the public sector, such as through pruning the cabinet, instilling national integrity to contain corruption, and instituting performance contracts that ensure delivery, amongst many others. Thus, devolution could be a successful avenue through which Kenya could raise human welfare, and improve national cohesion and integration while saving on public spending.


6. Evaluating Kenyan Devolution Following the previous section’s summary of the basic constitutional provisions on devolution, this section reports on the research questions presented in Table 2.1. The research questions were formulated before TFDK developed the devolution bills. In the event, the section will illustrate the extent to which the TFDK bills and the Constitution have addressed the concerns reflected in the ques-tions. It will further highlight issues that remain unresolved.

the average Kenyan. Another feeling was that the output of the review process – the Constitution (2010) – went too far in the other direction with respect to separation of powers: it rightfully took powers away from the President, but then gave too much to the Legislature, including control of appoint-ments and of finances. Others felt the Constitution rightly gave power to wananchi, who can now speak out in demand for transparency and accountability without fearing reprisals, such as occurred during the Moi era. While streamlining poli-tics and financial management, the document also enhances the fight against corruption by making it a constitutional is-sue, unlike in the past where it merely a legislative issue.

The Orange/Banana split of the 2005 referendum had been confusing given the limited understanding of the then Pro-posed Constitution of Kenya25. Some participants noted, how-ever, that their knowledge of the Constitution was presently limited to what they gathered from politicians and the media, which might undermine their participation in implementing the Constitution. One suggestion was that once the differ-ences and gaps in the Constitution are resolved, a further referendum be held in 2030, while another suggestion was for referenda to be held as necessary.

The foregoing concerns about the weak capacities of wanan-chi to participate in discussions on technical issues were also highlighted in TFDG’s findings. Consequently, and certainly with respect to the Constitution’s Chapters Eleven (Devolu-tion) and Twelve (Public Finance), the Devolved Government Bill has paid elaborate attention to both capacity building among, and participation by, citizens. Chapter III provides for citizen participation in County Assembly [CA] proceedings with Sections 90 and 91 providing the criteria for petitions and the right to a response. Chapter X mandates elaborate civic education at county, sub-county, ward and village levels. The participation principle is also elaborated in Section 89 of Chapter VIII, with various sections addressing access to infor-mation on policies, budgets and implementation. Section 94 mandates the establishment of citizen participation fora at all county levels, while Section 130 provides for a Citizen Service Centre. The Governor is also mandated to provide periodic re-ports on development implementation. Finally, it is significant

This section tries to relate Kenya’s development history to its history of governance, including its multiple efforts at decen-tralised governance, to see if the provisions of constitutional devolution are likely to provide remedies to past development bottlenecks. It does this in the context of the six research questions and objectives listed in Table 3.1, which guided the study’s fieldwork. Before addressing those questions, however, the study made an attempt to evaluate perceptions of respondents on the desirability of a new constitution, as well as the suitability of the process through which it was produced. The FGDs revealed a low understanding of the contents of the Constitution despite the massive efforts by COE, which had involved extensive dissemination, such as the distribution of nearly seven million copies of the Harmonised Draft Constitution alone (COE, 2010: 80).

6.1 Overall FGD Perceptions on the ConstitutionsAt the start of the FGDs, participants were asked to evaluate the old constitution, the process that produced the new one, and the new constitution. There was extensive agreement across the FGDs that there was little familiarity with the old constitution. It was however, perceived to have facilitated a dictatorial, top down administration in which the President was paramount. Consequently, the old constitution offered little room for participation, constrained freedom of speech, and had loopholes which undermined transparency and pro-moted corruption. It presided over the inequitable sharing of resources which promoted selective poverty and divided the country along ethnic lines, fostering a context in which only the fittest survived. It largely ignored concerns of gender, the disabled, minorities and the marginalized. One participant re-flected the extent of disengagement with the old constitution by suggesting the need to impose limits to the presidential term – which had actually been introduced in the review of 1991 that returned the country to multi-party politics.

Some respondents suggested the Bomas process had been quite inclusive, arriving at good proposals; but others felt the process was too full of experts and politicians, and thus, sidelined Wanjiku, former President’s Moi characterization of


that Article 255 of the Constitution specifies issues changes to which would require a referendum, as opposed to those that merely require enactment by Parliament.

6.2 Gaps and Overlaps in the ConstitutionMany of the issues raised as gaps during the FGDs actually merely reflected a weak understanding of the Constitution, or indeed, the lack of a serious reading of the document. Below, the various issues raised are integrated for the manageability of their discussion.

A first concern was the creation of counties, a concern with the unequal sizes and populations of the Constitution’s 47 counties. As with the parliamentarians, there seemed an expectation that the new districts would transform into more than 250 counties – a problem already alluded to above. However, Article 188 of the Constitution addresses the altera-tion of county boundaries on the recommendation of an independent commission set up for the purpose by Parlia-ment. Article 188 (2) further provides the eight factors to be considered in such a boundary review. While the Constitution specifically provides for (near) equality across constituencies and wards (Article 89), this is not the case with the counties. The concern was that counties could end up being ethnic en-claves, which would exacerbate current ethnic tensions. This is why it was judicious not to open the debate over counties so near to the 2010 referendum.

Participants made inquiries in regard to the institution of mayors, about which Article 184 provided that legislation would specify. It is curious that TDFK had originally not ad-dressed this issue in any detail given that it had referred to Kenya Vision 2030 among whose centre-piece undertakings is the Nairobi Metropolitan Authority designed to swallow up about 12 neighbouring Local Authorities [LA]. However, the passage of the Urban Areas and Cities Act abolishes LAs by repealing the Local Government Act (Section 77; see also Section 153 of the Devolved Government Bill) after the first election under the new constitution, and elaborates the structures to govern urban areas under devolution. Sections 44 and 45 of the Devolved Government Bill provide for the establishment of urban authorities, with Part II of the Urban Areas and Cities Act elaborating the criteria for accession to city, town and municipal status (Sections 5 to 11). Section 14 of the same act requires urban areas and cities to recognize their agency with respect to their respective counties for whom they will depend on financially to fulfill delegated func-tions under their management boards (Section 15).

A related issue concerned the structure of CG and the consequent roles of the CA and CEC, which the Constitution addresses in Part 2 of Chapter Eleven. CGs should “decen-tralise… to the extent that it is efficient and practicable to do so” (Article 176 (1)). While TDFK’s Draft Report had settled on three levels, viz. the county, sub-county and the ward, but with room for further grassroots institutions. This concern with the levels of decentralization was closely linked to the Constitution’s perceived vagueness on the fate of the Provincial Administration [PA] and LAs. Yet, the Constitution’s Sixth Schedule provides at Section 17 for five years within which to transform PA to accord with devolution, while Sec-tion 18 legislated provision concerning LAs has already been delivered by the Urban Areas and Cities Act. Indeed, the FGDs raised concern about the prospect of expensive parallel governments, should PA and LA be retained. The Devolved Government Bill provides that CEC will be made up of sectoral heads, and the current LA wards will likely become the CA wards. TFDK had originally suggested that PA be given the role of co-ordinating nation statehood, conflict resolution, ethics and such like matters, or indeed, that it could collect taxes on behalf of CG.

However, the concerns with extents of county decentraliza-tion have been addressed extensively in the Devolved Gov-ernment Bill, whose Section 44 provides for the county, sub-county/urban/city, ward and village levels (see Figure 5.1). While the county maps the same as the constitutionally-valid districts as at 1991, the sub-county maps to parliamentary constituencies. The bill provides for 1,450 wards which do not therefore map directly to the wards of the LAs, with the Inde-pendent Elections and Boundaries Commission being required to assign at least 25 wards to each county (Section 28). While the county will be under the Governor and CEC, Sections 46 to 49 provide for administrators for the sub-county, ward and vil-lage levels. The urban areas and cities will be administered by boards backed by administrator-managers. Furthermore, the Devolved Government Bill provides an elaborate framework for informed citizen participation through guaranteed access to information, the establishment of citizen fora, as well as of citizen service centres. Implemented effectively, these institu-tions leave little relevance for LAs and PA. Indeed, Section 153 provides specifically for the repeal of the Local Government Act, after which transitional issues will be handled by the Independent Transitional Authority.

With respect to nationhood, conflict and ethics, the Consti-tution and various legislations have created institutions for managing such issues, such as the Ethics and Human Rights


Commission and the National Cohesion and Integration Commission. On revenue collection, Section 29 of the County Governments Financial Management Bill already provides that counties may contract the Kenya Revenue Authority to collect taxes on their behalf. In effect, neither the Constitu-tion, nor any legislation arising from the fulfillment of the Fourth Schedule to date provides any role whatsoever for PA. However, the Office of the President seems determined that a refashioned PA should be retained, and is busy ap-pointing its own regional coordinators. It is however not clear what these officers will be coordinating, as the bulk of county development interventions are likely to fall under the county integrated development plan (Section 115 of the Devolved Government Act). Given that the coordinators will not be responsible for CG initiatives, it is strange that Office of the President continues to be nostalgic about yesterday’s almighty PA which under the new dispensation will have no powers over wananchi.

A further concern with PA had been that its personnel at the grassroots level had poor qualifications, often drawn from the pool of modestly educated Administration Police who were promoted to jobs with high levels of responsibility. Yet, the perceived role of the Governor is one of a highly qualified and experienced individual with the personal authority and expe-rience to control a highly motivated CEC, a function unsuited even for senior PA officers, such as the District Commissioner. Related to CEC’s functions, the Constitution does not offer de-tails on the committee’s employees. Article 179 only provides that the Governor shall employ CEC members, with clause (3) providing for a maximum 10 employees. Given the average size of the pre-2008 cabinet (of at least 30 ministries), it was not clear how the sectoral work not falling under the permit-ted 10 officers would be delivered.

The FGD participants rooted for diverse options for eligibil-ity for CEC positions, the over-riding concern being to give priority to locals. This was in fact consistent in principle with TFDK’s much more generous 70 per cent of the employees being locals or residents. What had remained unclear at that point was what would happen on accession of CGs, to the multitudes of civil servants previously working (on permanent and pensionable terms) for the central government posted to the districts or seconded to LAs. There was a suggestion that outgoing civil servants be held in a Public Service Commission pool from which CGs must initially employ in the short term. This would (i) provide continuity of service delivery, while (ii) giving such officers a chance to weigh their options for alternative livelihoods. In suggesting that like the Governor, all

CEC department heads be from the county even if the other staff were ‘imported’, some of the FGDs appealed for the substitution of the stringent demands on paper qualifications with experience.

The Devolved Government Bill is also not definite on all mat-ters of CEC. Section 13 establishes a County Public Service Board backed by a County Chief Secretary (Section 40). Sec-tion 30 provides for the Governor to appoint CEC members who must be graduates, and whose aggregate composition must represent the county’s diversity. While Section 41 provides for the appointment of County Principal Secretaries, their total numbers are not mentioned; for while the section states that all departments shall be under such a principal secretary, the structure of administration is left to the discre-tion of CEC. Section 62 emphasises that appointments to the County Public Service must pay attention to standards, values and principles contained in Articles 10, 27, 56 and 232 of the Constitution. Section 55 of the Bill also underscores concerns with gender equity, persons with disabilities and marginalized peoples, as well as attention to Chapter 6 of the Constitution. Importantly, all officers will be subjected to performance contracts (Section 43).

The management of individuals’ revenues, such as from cross-county investments, raised concerns among participants who were apparently ignorant of the tax revenue provisions of Article 209. They wondered how earnings would be repatriat-ed to their home counties. With respect to the management of revenues, Section 30 of the County Government Financial Management Bill provides for the establishment of a County Revenue Fund into which all own county revenues and other financial resources will be deposited with Section 28 provid-ing for a Receiver of Revenues. Sections 24 to 27 describe the various sources of revenue for the county which must have competently staffed revenue and budget departments (Section 14). Finally, Section 29 allows counties to delegate own-revenue collection to KRA. The repatriation of revenues to ‘home counties’ does not arise as in the context of taxa-tion, one either pays the taxes specified under Article 209 (1) to the national government, and those under Article 209 (3) to county governments, even if it is KRA that is contracted to collect the latter. In effect, therefore, devolution does not tie individuals to some ‘ancestral county’; instead, people live, in-vest and work wherever they are, as provided by the Constitu-tion. The taxes due to the national government are paid to it regardless of one’s county of residence – which will determine which county collects the individual’s county taxes.


Concern was also raised about ‘outsiders’ from (other coun-ties) exploiting a particular county’s natural resources, such as lake fishing, or providing a city’s domestic water. Again, this reflects a poor understanding of the rest of the Constitution, such as Article 39’s provision of the freedom of movement and residence “anywhere in Kenya”, and Article 40’s right to property “in any part of Kenya”. But further, this concern reflects the absorption of the misinformation spread by the opponents of the Proposed Constitution who had argued that devolution was majimbo in disguise26, which would require people to return to their ‘ancestral’ counties. As argued above, there can be no ‘outsiders’: people can identify an an-cestral county by virtue of continuing to live, work, invest or own property in the original land of their ancestors. This does not deny them the right to live, work, invest or own property in one other, or more, counties. Under the latter context, na-tional tax dues are paid only once per period to the national government; but county tax dues are paid in each of the counties in which such individuals have liability per tax period.

On ‘foreigners’ exploiting ‘our natural resources’, Article 260 of the Constitution defines ‘land’ as:

“(a) the surface of the earth and the subsurface rock; (b) any body of water on or under the surface; (c) marine waters in the territorial sea and exclusive economic zone; (d) natural resources completely contained on or under the surface; and (e) the air space above the surface.”

Article 60 provides for its sustainable use as directed by the National Land Policy. Concerning ‘our natural resources’, Article 67 establishes a National Land Commission which Article 62 mandates with the administration of all ‘public land’. These are defined as, amongst other things, all minerals and mineral oils, government forests27, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas; all roads and thoroughfares… all rivers, lakes and other water bodies…the territorial sea, the exclusive economic zone and the sea bed; the continental shelf; all land between the high and low water marks. Effectively, then, individual counties will not ‘own’ the foregoing categories of public land, even if they will hold other categories in trust, as provided by Article 62 (1) (a), (c), (d) and (e).

A further issue needing clarification was the fate of decen-tralized funds, such as CDF and LATF, about which the FGDs were highly divided. Participants acknowledged both their usefulness for grassroots interventions, and their non-

transparent management. For example, CDF’s problem was seen to arise squarely from its being a fund that was designed for the parliamentarians’ convenience. Proponents of their continuation independent of the 15 per cent-plus grant from Treasury simply recommended that their management be improved. However, opponents of their continuation argued that devolution’s 15 per cent plus and the Equalisation Fund, as well as the other available grants met – and even exceeded – the original objectives of decentralized funding. Participants emphasized the need for the transparent management of all funds coming to the county, with the possibility of posting such accruals on public notice boards.

The Constitution does not recognize any pre-existing decen-tralised fund with Article 207 (1) providing for the establish-ment of a revenue fund for each county “into which shall be paid all money raised or received by or on behalf of the county government, except money reasonably excluded by an Act of Parliament.” While this allows the future institution of other funds directed at the counties, various sections of the Devolved Government Bill suggest the death of decen-tralised funds. For example, Section 89 provides for citizen participation in policy formulation and implementation, and the development of proposals and budgets. Further, Section 113 (h) provides for a platform unifying planning, budget-ing, financing, implementation and performance review, a system which Section 114 expects to harmonise development interventions between the national and county governments. Finally, Section 115 obliges all CECs to develop plans that inte-grate all economic, social, physical, spatial and environmental concerns, which must be approved by CA, must be binding to all sub-county levels, and outside which no funds may be disbursed (emphasis added). In effect, while CDf and LATF operated largely outside the District Development Plans, no public development interventions under devolution will exist outside the Integrated County Development Plan.

In an apparent allusion to the Equalisation Fund, one partici-pant wondered at the definition of ‘marginalisation’, caution-ing that it was not fair to assume that all Somalis were poor. Art 260 distinguishes ‘marginalised communities’ to be of small numbers largely excluded from the national socio-econ-omy, or traditional communities excluded by their desire to preserve their (dying) heritage, nomadic pastoralists and geo-graphically isolated communities. This concern with focusing on the genuinely marginalized under the Fund underscores the need for (vertical and horizontal) equity to guide the allocation of resources. As will be elaborated below, vertical


equity enables unequals – even within the same county – to be treated appropriately unequally, while horizontal equity ensures equals in whichever county are treated equally28. Such equal treatment of equals in whichever county has the potential of enhancing Kenyanness.

Questions were raised about the nominations of parliamen-tarians and CA members, reflecting ignorance of Articles 97 (1), 98 (1) and 177. Under the old constitution, the President’s originally exclusive right to nominate was eventually shared with parliamentary parties. The same parties also provided their nominees for LA councilors. Under the Constitution (2010), however, nominations will be based on party lists provided for by Article 90 (2). The requirement is that each participating party should provide “a list of all persons who would stand elected if the party were to be entitled to all the seats provided under the foregoing articles”. The article also requires the listing of candidates to alternate between males and females, with members reflecting the regional and ethnic face of the county. Nominees to Parliament will number 12,and will represent the interests of the youth, people with disabilities and workers. For CAs whose total membership is indeterminate, Article 177 (b) provides for as many ‘special members’ as are necessary to ensure that no gender accounts for more than two-thirds of the Assembly. In interpreting the affirmative action anticipated by Article 177 (c), Section 7 (c) of the Devolved Government Bill provides six CA seats for marginalized groups, with the section also requiring that occupants of the special seats together should reflect the regional and cultural diversity of the county.

Further, concern was raised with the failure to include an Ombudsman, presumably to continue the work of the Office of Public Complaints Standing Committee. Presumably, the office of the same name will continue its work under the Ke-nyan National Human Rights and Equality Commission (Article 59), assisted by the newly created Ethics and Anti-Corruption Commission.

The FGDs also noted the issues raised about the well-ventilat-ed topics of gender balance, gay marriages, abortion, Kadhis’ Courts and the place of international law vis a vis Kenyan sovereignty. The question relating to gender balance in public employment wondered why religious balance was ignored. The focus on gender obviously recognizes women’s tradi-tional margnalisation despite their accounting for a competi-tive share of the national and any sub-national populations, the 2009 Census placing their share at 51 per cent. Further, research shows the greater welfare benefits to households in

general, and children specifically, of exploiting women’s po-tential29. For religion, the balance is not as competitive with Muslims constituting less than 10 per cent of the population, largely concentrated in north-eastern and coastal Kenya.

Further, a participant inquired why Kadhi’s Courts were speci-fied in the Constitution, but not courts for other religions, such as Christianity and Hinduism. The most significant pointhere is that Kenyan law is modelled on the British law, which has its roots in the Judeo-Christian tradition, mean-ing that our courts already have a very strong Christian bias. While defining the subordinate courts, among which the Kadhis’ courts fall, Article 169 (d) does allow Parliament to es-tablish any other courts that are deemed necessary. Further, Article 170 (5) limits the Kadhis’ courts to “the determination of questions of Muslim law relating to personal status, mar-riage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdic-tion of the Kadhi’s courts.”

The provision that all international treaties and conventions to which Kenya has acceded promptly become enforceable in Kenya also drew concerns, seen by dissenters as an avenue through which practices such as gay marriages, would find a foothold in Kenya. Yet, this anchoring of the Kenyan constitu-tion to international law is considered an inherent safeguard against government excesses vis a vis respect for the Bill of Rights, which Kenyans are too familiar with, or government inaction in the face of threats to rights, as was evident dur-ing the 2007/08 violence30. Thus Article 2 (5) declares “(T)he general rules of international law shall form part of the law of Kenya…” with clause (6) declaring that “(A)ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Article 132 mandates the President to report to Parliament on the country’s commit-ment to international laws, with Article 145 providing breach of international law as one ground for impeaching the Presi-dent. The Deputy President and cabinet secretaries may also be punished on the same grounds, as provided by Articles 150 and 151.Thus, committing the Constitution to international has a silver lining, even if indeed this could be the avenue through which foreign values may enter Kenya. As for foreign values, such as gay rights, these surely fall into the domain of inalienable personal choice, as do such other foreign values as wearing blonde hair extensions, or supporting Barcelona FC instead of Sofapaka FC.

Finally, there was a demand that the the scrapping of all ‘out-dated’ laws to enable their replacement with new laws should


follow the accession of the new constitution. Such a wholesale scrapping of national laws is however, impractical since these give life to the continuing state. But, it is also unnecessary since the Kenya Law Reform Secretariat is working on just such a task. In any case, the purpose of the Fifth Schedule of the Constitution is to ensure within five years at most that legislation relevant for operationalising the Constitution is in place. TFDK’s production of the six devolu-tion-related bills is just one realisation of this objective.

6.3 Generating Revenue under DevolutionArticle 209 addresses the division of the core revenue sources between the national and county governments, giving the cream of the sources – the direct taxes – to the national level. A study of the Kenyan political economy is a study of historical injustices underlying the inequitable public resource alloca-tion picture presented in Chart 3.1 greatly contributing to the socio-economic inequalities reflected in Figure 3.2. The drafters of the Constitution were very conscious of this history of injustices in adopting equity, justice, as an underlying prin-ciple. As early as Article 6 (3), the Constitution declares that all national state organs “shall ensure reasonable access to its services in all parts of the Republic, so far as is appropriate to do so having regard to the nature of the service”(emphasis added). Article 10 (2) returns to the same theme in including among the national values and principles, sharing and devolu-tion, equity, social justice, inclusiveness, non-discrimination and protection of the marginalised, amongst other related ideals. Given the agro-ecological inequalities reflected in Table 3.1, it is only proper that the country maximizes national revenue by leaving the sources of greatest revenue potential at this point in history in the hands of the national govern-ment. This is because it has comparative advantage (over CGs) in revenue collection at this point in history. Further, it may be better placed to ensure the equitable distribution of revenues than would the wealthier counties in which greater resources – and therefore revenue – are produced. In other words, if each county collected all revenues within its boundaries, it is unimaginable that the richer counties would willingly share their greater revenues with the poorer counties, the resulting inequality undermining the development of the nation-state.

As alluded to in sub-sections above, the FGDs reflected misconceptions on the implications of devolution for the management of business incomes and consequent taxation li-abilities. Such misconceptions would seem to have grown out of a misinformation that under devolution, Kenyans would be repatriated to ‘ancestral/home counties’ to which they would owe exclusive fiscal allegiance, regardless of where they ex-

ploited their livelihoods. As noted before, this myth had been fuelled by those intentionally or inadvertently equating de-volution to the ethnicised majimboism of the independence constitution. However, as underscored above, Articles 39 and 40 in the Bill of Rights guarantee the freedom of Kenyans to live and work anywhere in the Republic, regardless of their ‘ancestral counties’. In consequence, the fear among FGD par-ticipants of double taxation or the risk of failing to ‘repatriate’ earnings and taxes does not arise.

On tax collection, reforms at the Kenya Revenue Authority [KRA] since the 2003 accession of the NARC government have enabled heightened tax collection. National revenues in relation to spending have gone from a Kshs 12 billion deficit in 2002 to a Kshs 4 billion surplus 2010. The Finance minister announced further reforms in the pipeline during the June 8th 2011 reading of the budget, which should improve KRA’s performance. However, Kenyan development policies have fu-elled rural-to-urban migration, concentrating the tax revenue potential in the major cities and towns which are largely high-ly cosmopolitan. It is therefore logical that the main taxes be collected most cost-effectively at the national level, and that a means be devised to share revenues equitably (see Section 6.4). TFDK’s (2011) had also suggested that KRA collect the taxes due to CGs, a preferred approach to suggestions that this could be amongst the new roles of the highly discredited PA, which has previously gained notoriety in similar roles under colonialism and the harambee fundraisings champi-oned by founding President Kenyatta and his successor31. It is therefore appropriate that Section 29 of the County Govern-ment Fiscal Management Bill provides that KRA can undertake the revenue collection function, leaving no role for PA.

Having assigned the choice taxes to the national level, comparatively little is left to CGs, as reflected in their comparatively shorter list of potential sources in Article 209 (3), and in these tax items’ comparatively lower potential returns. The FGDs suggested various additional sources of tax revenues for the counties, invariably requiring initial investments to open up hitherto idle resources for exploita-tion, such investments having hitherto been undermined by the concentration of development investment along the railway line. An insight into county revenue capacities can be gleaned for the own-revenue performance of respective LAs, as illustrated in Table 6.1, with details appearing in appendix Table A–6.1. The data aggregating the performance of all LAs under each county – admittedly inconclusive for only covering a single financial year [FY], show four counties to generate own revenues greater than their respective total spending.


Another 14 counties generate own revenues amounting to at least 75 per cent of total spending. The weak outcomes of counties like West Pokot, Nyamira, Mandera and Turkana are expected; but the poor performance of lakeside counties like Homa Bay and Siaya underscore Peterson’s (2001) concern that current financial frameworks should be well understood before launching the devolution revolution. In other words, own revenue performance is likely to be a factor of potential revenue size, but also of intervening factors, such as collector motivation and the infrastructure for collection. How coun-ties’ own-revenues perform against their respective budgets might also reflect whether starting conditions – such as weak anticipated budgets – unduly influence considered needs and the consequent sizes of the budgets posted.

Table 6.1: County Own-Revenue Shares of Total Expenditure, FY 2008/09Own revenue share of total expenditure (%)

Counties

More than 100% Nairobi, Narok, Trans Nzoia, Uasin Gishu

More than 75% to 100% Busia, Embu, Isiolo, Kericho, Kiambu, Kilifi, Laikipia, Machakos, Marsabit, Mombasa, Nyeri, Samburu, Taita Taveta, Tana River

More than 50% to 75% Baringo, Bungoma, Elgeyo Marak-wet, Kajiado, Kakamega, Kirinyaga, Kisii, Kisumu, Kitui, Kwale, Lamu, Migori, Muranga, Nakuru, Nandi, Nyandarua, Vihiga

More than 25% to 50% Bomet, Garissa, Homa Bay, Makueni, Mandera, Nyamira, Siaya, Turkana

Up to 25% West Pokot

Source: calculated from the Annual LATF Report, FY 2008/09

The FGDs emphasised the more equitable sharing of the benefits of existing public resources as itself being a new source of revenues. The Embu FGD for instance cited the case of the Kiambere Dam area on Tana River, whose residents neither enjoy its water, nor the electricity channeled into the national grid to open up the economies of distant counties while the locals live in ‘darkness’. The FGDs also emphasized the exploitation of idle county resources to increase the scope for own revenues. The largely pastoralist Garissa region for example, pointed to the potential meat markets of the Middle East while Bungoma talked of minerals, and Kilifi of seaweed. A recent World Bank-Kenya Country Office study found that regional infrastructure differentials adversely affect rural poverty and. Consequently, it is important that attention be paid to the infrastructure differentials such as are illustrated in Table 6.2, which have significant implications for the rela-tive capacities of the counties to generate own revenues, as

well as to contribute to the national revenue pool. It is not ac-cidental that the own revenue performance of the counties of the former White Highlands is good while that of for example, the former Northern Frontier Districts is invariably dismal: besides the prejudices of nature and colonialism, the policies inherent in Kenyatta’s SP10/1965 midwifed the exacerbation of such inequalities.

Table 6.2: County Differentials in Access to Selected Infrastructure

County District Poverty rate

Piped water

Road density

Bitumen cover

Bitumen density

Good roads

Arable land

Baringo Koibatek 48 27 83 10 9 18.6 65

Baringo 46 33.5 15 16 2 12.6 29

Bomet Bomet 52 2.9 37 33 12 9.3 85

Bungoma Mt. Elgon 55 15.7 37 - - 7 31

Bungoma 58 32.7 56 14 8 20.8 88.9

Busia Teso 50 5.3 58 5 3 7.5 79

Busia 69 23 46 10 5 12.1 73.3

Embu Mbeere 63 23.1 37 10 4 3.6 80.8

Embu 56 60 80 9 7 5.9 65.5

Garissa Garissa 62 12.1 5 11 1 0.8 0.9

Homa Bay Homabay 72 3 44 11 5 6.5 84.2

Isiolo Isiolo 48 43.5 7 0 0 7.2 0.3

Kajiado Kajiado 44 27.3 - - - 7.5 7.7

Kakamega Butere- Mumias

62 2 59 11 7 14.3 71.4

Lugari 64 8.1 66 - - 10.8 72.2

Kakamega 63 9.9 55 10 5 5.7 84.2

Kericho Bureti 50 35.6 - - 3 19.2 79.5

Kericho 47 30.7 39 - - 16.6 80.5

Kiambu Thika 36 43.9 112 32 36 20.5 74.7

Kiambu 18 49.1 88 44 39 5.7 90.3

Kilifi Malindi 64 51.5 9 18 1 11.8 55.1

Kilifi 74 7.8 21 14 3 10.8 19

Kirinyaga Kirinyaga 36 31 62 17 10 11.4 79.2

Kisii Gucha 62 6.1 98 5 5 6.3 80

Kisii Central 63 19.4 74 15 11 16 78.1

Kisumu Rachuonyo 72 0.6 192 - - 11.9 51.8

Nyando 62 17 96 14 14 7.9 95.7

Kisumu 46 30.2 50 29 15 14.7 39.2

Kitui Mwingi 60 11.3 - - - 9.3 45

Kitui 71 6.1 9 4 0 12.9 40

Kwale Kwale 64 24.9 18 9 2 13.1 1.5

Laikipia Laikipia 44 28.4 11 13 1 11.2 20.5

Lamu Lamu 52 10 10 1 0 13.5 89.5

Machakos Machakos 60 6.2 28 23 7 10.8 31.6

Makueni Makueni 62 10.3 20 16 3 10.2 78.4

Mandera Mandera 65 10.7 8 - - 3.9 4.9

Marakwet Keiyo 39 10.7 63 10 6 20.4 61.4

Marakwet 42 8.4 43 - - 7.8 81.1

Marsabit Moyale 58 1 6 - - 0.4 2

Marsabit 50 21 6 - - 11.7 20.4


Meru Meru Central

33 15.8 30 17 5 3.8 56.3

Meru North

52 46 17 9 1 2.3 46.5

Meru South

34 26.1 35 9 3 2.2 50.3

Migori Kuria 81 47.7 152 2 3 4.5 94.7

Suba 67 6.4 37 - - 2.6 50.2

Migori 47 0 - - - 16.6 87.2

Mombasa Mombasa 44 89.3 152 - - 14.7 0

Murang’a Maragua 35 16.3 78 17 13 6.1 64.6

Murang’a 29 9.1 85 19 16 9.3 63.8

Nakuru Nakuru 41 42.3 28 - - 6.8 72.8

Nandi Nandi - 3.1 59 9 5 8.3 81.5

Narok Trans Mara 59 16.4 16 2 0 17.6 53.9

Narok 52 8.9 29 - - 12 29.8

Nyamira Nyamira 68 4.6 74 8 6 16.2 91.3

Nyandarua Nyandarua 35 5 30 14 4 7.7 60.9

Nyeri Nyeri 30 73.1 39 - - 8.8 71.9

Samburu Samburu 48 13.3 7 - - 11.6 6.6

Siaya Bondo 72 23.6 28 8 2 10.2 40.4

Siaya 66 5 52 12 6 8 83.1

Taita-Taveta

Taita-Taveta

59 63.8 6 16 1 13.6 12

Tana River Tana River 33 4.7 2 35 1 10.9 22.9

Tharaka Tharaka 71 7.1 100 - - 0.4 49

Trans Nzoia

Trans Nzoia 48 15 45 15 7 10.8 79.6

Turkana Turkana 61 18.9 4 16 1 14.3 32.5

Uasin Gishu

Uasin Gishu 49 30.4 37 25 9 13 90

Vihiga Vihiga 59 11.4 142 14 21 19.2 72.7

Wajir Wajir 71 0.1 10 - - 1.8 70

West PokotWest Pokot 52 11.3 11 10 1 7.5 14.4

Source: various sources

Physical and social-economic infrastructure differentials have two mutually reinforcing consequences. Good infrastructure attracts investments, which enhances the further scope for taxation and revenues. Conversely, poor infrastructure discourages inflows of investment while at the same time instigating disinvestment. Critically, poor infrastructure has been associated with high rates of rural-to-urban migration, depleting the ‘exporting’ county of the cream of its labour force32. While remittances have emerged as a viable source of domestic investments, this only applies where the host economy is vibrant, enabling migrants to make money. For most Kenyan migrants to the urban areas, however, their des-tination is an already over-subscribed informal sector whose average earnings consequently decline, This exposes informal sectors operators on the fringes to the risk of falling below the poverty line, consequently being barely able to remit anything to their home counties.

Consequently, it is imperative that public spending create a context in which physical and socio-economic infrastructure can be improved to attract surplus (underemployed) urban labour back to the rural counties with idle potential. To this end, the land reforms intended by Chapter Five of the Consti-tution will be critical, such as Article 60 (1)’s invocation of the resource’s “equitable, efficient, productive and sustainable tenure, use and management.” Article 66 (1)’s provision that “(t)he State may regulate the use of any land, or any interest in or right over any land...” means it should now be possible to address the persisting tendency of rich people to hold large tracts of land for speculative purposes. Such speculative holding is bad because it takes arable land out of the produc-tion cycle, undermining the generation of taxable revenues, as well as production for food security. In these respects, the intention is significant of the Equalisation Fund “to provide basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible.”

The need to balance the financing of these new county invest-ment considerations with the county provision of on-going services underscores the importance of qualified business management expertise at the helm of CG. Such expertise will be aware that infrastructure investment will also lower the cost of delivering everyday services.

6.4 The Equitable Sharing of RevenuesCGs will have multiple potential sources of revenues, viz. Article 209 (2)’s own-revenues, Article 203 (2)’s 15 per cent plus, Article 202 (2)’s additional conditional or unconditional allocations from the national government, Article 204’s Equalisation Fund, and approved commercial borrowing (Article 212). The scope for own-revenues has been discussed in Section 6.3, while that for the additional grants remains ad hoc, and subject to the extent to which merit is instrumental-ised in their management.

The Equalisation Fund is likely to be controversial because of its conditions for eligibility, and its small size. Article 204 (2) declares that the fund will only be used to bring ‘basic services to the level generally enjoyed by the rest of the na-tion.’ However, access to the named basic services is quite divergent across counties, as illustrated in Table 6.2. Yet, the fund is reserved for “marginalized areas” – which is defined in Article 260 to exclude a county like Kakamega with a piped water access of 5 per cent, compared to Kiambu’s average 46 per cent. Indeed, the Constitution only defines a


marginalised group and community, not area. This suggests the fund could be used in parts of, rather than the whole of, a county. Whatever the geographic spending focus of the fund, it seems too small to make much impact on the differentials illustrated in Table 6.2.

However, the most significant funding source across all coun-ties – notwithstanding their independent capacities reflected in Table 6.1 and appendix Table A–6.1 – is Article 203’s 15 per cent plus. The FGDs wondered how the 15 per cent floor was arrived at, an interesting factor that COE (2010) does not explain. One FGD suggested the floor should be raised to between 40 and 45 per cent, suggesting it is unfair for the government to extract 100 per cent taxes from wananchi, while only allowing them a 15 per cent share. Of course, this argument ignores the fiscal implications of the division of labour – role assignation – between the national government and CGs reflected in the Fourth Schedule. It also ignores the fact that the national government must reserve national rev-enue resources for pre-determined obligations, including the national debt, the Consolidated Fund expenditures and public service salaries.

However, the FGDs felt strongly that for the equity to be real-ized, the government should undertake a baseline for each county, against which ‘need’ would be gauged. This baseline would provide some indication of respective counties’ readi-ness to assume control under devolution – meaning that the roll out would be staggered. Some FGD participants also de-manded that consideration should be taken of past injustices in sharing public resources, which would lead to a compensa-tory component in the allocations to previously disadvan-taged counties. Finally, the FGDs expressed apprehension that sub-county service delivery levels could suffer the same tyranny the district sector heads suffered at the hands of min-istries, resulting in erratic funding flows. Consequently, they proposed that sub-county funding flows should be mandated along the lines of Article 203 and 219.

A further idea was for CRA to consider the comparative coun-ty potentials to attract direct investment and borrowing. This capacity would be factored into allocations, to the advantage of the objectively determined weaker performers in the form of affirmative action. In effect, counties that had over the independence years been favoured with good infrastructure would have a head start over the rest in attracting indigenous and outsider private investors, a factor which should be re-flected in comparative allocations. It was further pointed out that parochial concerns could influence the patterns of poten-

tial investment, such as northern Kenya attracting Middle East investors in the name of religion. Indeed, it was noted that the construction and other business booms ascribed to the Somali community could probably be the case of Mogadishu investors fleeing insecurity, and finding a haven in Nairobi. In terms of borrowing, the more developed counties will have a vast head start on other counties that cannot even consider this option, such as those of the arid and semi-arid lands.

As noted in Section 6.2, CDF was the bone of much conten-tion with some arguing against its continuation as a stand-alone fund, while others argued for its continuation as such. The same concerns were expressed about all the other decentralized funds, such as LATF and RMLF. On the balance, the perception was that the participatory essence of devolu-tion substitutes for the need for ad hoc decentralized funding. Indeed, the abolition of such funds would be consistent with TFDK’s (2011) proposal of an Integrated County Development Plan from which any financiers would have to draw projects for implementation. Further, as noted above, Section 115 of the Devolved Government Bill requires that counties have CA-approved integrated plans that bind upwards to the national level and downwards to the sub-county level, without which no resources will be disbursed from the County Revenue Fund.

The foregoing concerns in allocating Article 203’s resources show the way forward for CRA in two respects. Firstly, the counties will need a lot more money than the (at least) 15.5 per cent implied by Articles 203, 204, 209 and 212, which is why provision is made for further non-specific grants (Article 202). Instead of this patchwork of funding, and especially in order to enhance efficiency in managing the funds, given like-ly county capacity constraints, it might be more efficacious to ‘basket fund’ the county Treasury, having taken cognizance of the likely resource needs for bringing all counties to a level of development generally enjoyed by all others. Indeed, as Sec-tion 20 of the County Government Financial Management Bill declares, “funds must match and follow functions.” Secondly, these concerns point CRA to a formula-based allocation of re-sources across the counties, based on the equity principle of treating equals equally, and unequals appropriately unequally. In this respect, the CDF experience provides a poignant lesson on how not to share out the money: the CDF formula merely deepened regional development inequalities rather than narrowing them, by sharing 75 per cent of the fund equally across all 210 constituencies, and only 25 per cent equitably. For justice to be upheld, the share allocated equitably should have been greater than that allocated equally.


While equity underlies many constitutional concerns, it has not been elaborated on. Specifically for resource alloca-tion, there are many lessons to be gleaned from the health economics literature which emphasizes both vertical equity – treating unequals appropriately unequally – and horizon-tal equity which treats equals equally. The attainment of absolute fairness within a population requires a focus on the conditions of individuals in the (national) population. Since this is not practicable, the next-best option is to focus on the smallest feasible group of individuals and/or house-holds, an approach referred to as ‘small area’ analysis. Under the UK’s National Health Service, for example, small area analysis focuses resource allocation – need and delivery – on the postcode (area). Vertical equity is aspired to by treating unequals within the small area appropriately unequally, while horizontal equity is strived for by treating equals within the small areas equally. Aggregating allocations to such small area within a region determines the total allocation for the region.

To date, poverty analysis in Kenya has focused on the district and constituency, with some basic analysis at the location level. However, these units remain too large for effective small area analysis. Kenya’s last household welfare analysis was the Kenya Integrated Household Budget Survey 2005/06. Some household status data was also collected during the controversial 2009 national census33. Since these data are inappropriate for one reason or another for a current small area analysis, the government would do well to undertake a new household welfare survey based on small areas, such as

the wards provided for by Section 44 of the Devolved Gov-ernment Bill. Estimates of need and service delivery would then be based on the ward, and then aggregated upwards to establish a county’s total allocation. Basing allocations on the ward would enable the accurate estimation of the resource needs for delivering the basic services guaranteed by the Bill of Rights, notably health care, food, education, housing and safe water (Article 43). Ward-based small area analysis would also facilitate attention to the needs of children (Article 53), persons with disabilities (Article 54), minorities and the mar-ginalized (Article 56) and older people (Article 57). Indeed, the approach would also enable the effective operationalisa-tion of the Equalisation Fund.

In order to undertake the foregoing concerns, Article 215 of the Constitution establishes CRA which oversees the equi-table sharing of national revenues between the national and county governments, and among CGs (Articles 202 and 203). The equitable share for counties is deposited – alongside any other county financial resources – in the County Revenue Fund created by Section 28 of the County Government Fiscal Management Bill. As provided by Section 16 of the Inter-Governmental Fiscal Relations Bill, CRA’s recommendations on the sharing of national revenues is discussed in, amongst other fora, the Inter-government Budget Council established under Section 4 of the same bill. This role of CRA somewhat duplicates, but certainly augments, the functions of the Tran-sition Authority enumerated at Section 9 of the Transition to Devolved Government Bill.

6.5 Contradictions between the New and Old Systems


The Local Government Act will stand repealed after the first elections under the New Constitution that will usher in the new devolved system of governance. This implies that there will no longer be Local Authorities. However, the current LA councilors’ wards will likely be the basis for the new wards under devolution, even though Section 28 of the Devolved Government Bill provides a baseline of 25 wards. The other two controversial areas of the debate between the old and new dispensation have been touched on above, the Provincial Administration [PA] and decentralized funds. A key problem for PA is its baggage, notwithstanding FGD suggestions that its lower ranks are and have been the most efficient in resolv-ing community-based issues, as well as managing broader security issues. However, some FGD participants lamented the low levels of education of the PA, many of whom they alleged had been promoted from the ranks of the Administration Police. That such a background in the uniformed cadre would dispose such officers to taking orders, rather than addressing issues objectively is not a characteristic of the lowest ranks alone: all PA officers undertake paramilitary training, which is rooted in taking and carrying out orders. This role of PA during colonialism and the Kenyatta and Moi years had led to NARC’s 2002-election manifesto undertaking to disband the PA on at-tainment of power. However, the PA’s salvation came from the fact that key Kibaki advisors had been in PA operatives and knew of its potential for containing political rebellion.

However, PA officers are also not suited to the business envi-ronment envisaged for devolution. Their oversight of substan-tial resources for harambee, the District Development Com-mittee and famine relief, was subjected to little or no scrutiny, causing such resources to often disappear. Furthermore, PA’s para-militiary fundaments – of unquestioned commands from the Office of the President down to the grassroots – would be inconsistent with an underlying objective of the Constitu-tion – to increase grassroots participation in designing and implementing development. In any case, it is necessary that individuals offering themselves for county positions be more mature and to have a more varied work experience.

Nonetheless, the FGD feeling was that the chiefs and their assistants should be retained, but be popularly elected, rather than being appointed by individuals who consequently de-mand for allegiance. Along the same security concerns, it was not clear how the Governor would relate to the police, which was previously under a security meeting chaired by the PA at all levels. In these respects, Sections 46 to 49 of the Devolved Government Bill provides for a hierarchy of sub-county civil servant administrators cascading to the five village elders at

the base. On PA’s previous co-ordination of security issues, Section 35 of the Devolved Government Bill provides that the Governor will chair county security arrangements, in line with Article 239 (5) of the Constitution, which requires the national security apparatus to operate under civilian authority.

Besides prospective governors having basic university educa-tion and business experience, the FGDs felt that the candi-dates should be natives of the county and have a personal development record of accomplishment illustrating their own private entrepreneurial capacities. The feeling was that the governors should hire department/sector heads from within the county even if the rest of the personnel will come from elsewhere, to ensure allegiance to the plight of the county. Yet, Kenya’s experience with corruption shows that parochial loyalties fare badly in the face of financial and other tempta-tions. One suggestion was the recruitment of CEC members from a national Public Service Commission [PSC] pool of former civil servants and another that the governors pro-pose candidates to the PSC for vetting and absorption. The maximum CEC membership imposed by Article 179 (3) means that CGs could rely on consultants for some aspects of service delivery. Alternatively, incisive governors could collaborate strategically across counties to ensure they jointly have an ad-equate stock of profiled specialists. Given the resources that are likely to flow through CEC members’ hands – compared to amounts such officers handled as civil servants – it is neces-sary to provide them with an adequate remuneration package to ensure diligence. Some civil servants grumbled at the fact that the teachers’ future had been secured through the inclu-sion of their service commission employer in the Constitution (Article 237).

On the constitution of the county public service, Sections 54 and 55 of the Devolved Government Bill provide for the es-tablishment of a County Public Service Board of professionals recruited competitively, with the good governance provisions of the Constitution’s Chapter 6 given due weight. The Bill pro-vides that the Board may create offices (Section 57) or abolish them (Section 58), and make appointments (Section 60) after widely publicising vacancies (Section 63). The bill also establishes the County Public Service Advisory Authority – the Advisory Authority (Section 84) which is mandated to oversee the espousal of national values of Articles 10 and 232 of the Constitution in the management of county public services, and to report annually on the same to the Senate. These measures provide a framework for the objective recruitment of county public services.


Concern was also expressed over co-ordination between the national and county governments, and across CGs and urban areas, as well as over transitional issues. Section 9 of the Inter-Governmental Relations Bill creates a Council of County Governors whose representatives sit on the National and County Governments Co-ordinating Council created by Section 5 of the same bill, chaired by the President. These arrangements will enable resolution of national-county, as well as county-county conflicts. Section 4 of the Transition to Devolved Government Bill provides for an eight-member County Transition Authority headed by an individual quali-fied to be a judge of the Supreme Court (Section 6). Section 10 of the same bill provides that the Authority will audit the prospective capacities of county governance during the period to the first election under the New Constitution. It will subsequently oversee the transfer of functions to CG over a three-year period after the first election. Section 46 of the Urban Areas and Cities Bill also provides for an Inter-Urban and Cities Forum.

Finally, Section 129 of the Devolved Government Bill allows for shared services between the national and county govern-ments, across counties, as well as private/public partnerships. Similarly, Section 42 of the Urban Areas and Cities Bill allows for collaboration across urban authorities. Besides the various platforms mentioned above for the resolution of disputes across the various boundaries, such as the Council of County Governors, Section 21 of the Inter-Governmental Relations Bill establishes an ad hoc Inter-Governmental Disputes Resolution Tribunal whose findings can be challenged up to the Supreme Court and in the Senate, should litigants find this necessary.

6.6 Management of Shared and Exclusive Natural ResourcesThe critical issue in the management of shared resources is the context provided by Chapter Five of the Constitution on Land and Environment, which the FGDs were not aware of. As discussed in Section 6.2 of this paper, Article 60 provides the principles for managing land to include equity, security of rights, sustainability and productivity, amongst other aspects, while Article 61 classifies land as either, public, community or private. In the context of the issues raised in the FGDs, ‘land’ includes ‘earth’, water body’ and ‘natural resources’, the latter being defined as “the physical non-human factors and compo-nents, whether renewable or non-renewable.” The distinc-tions between public, community and private land are further provided in Articles 62 to 64. The perception during the FGDs was that these distinctions do not exist, meaning that all land within a county belonged exclusively to that county; hence

the Embu FGD complaint about the lack of access to Kiambere Dam resources. However, the demand for a quid pro quo over the waters, or the suggestions elsewhere that counties should have the first option over home-based resources seems both unsustainable in general and unconstitutional.

However, an example has been set in returning revenues from wildlife to the hosting LAs, which explains the own revenue performances of the likes of Narok and Samburu in Table 6.1(see annex). Consequently, it is understandable that other counties would look at any of their natural resources in the same way that wildlife has been considered in some host-ing counties. Of course, the good revenues from the wildlife might be a reflection of the good management of revenue collection and remittance by the Kenya Wildlife Services, rather than the commodity itself. It might well be that if existing revenue collection was to be improved in some of the other counties, their own revenues could also rise substan-tially. However, there are reasons for some grievance over land, arguably: fertile Kitale’s agriculture incomes belong to individual landowners; yet, arid Kitui’s coal yields belong to the state. This inconsistency provides an even stronger ground for collecting the main taxes nationally and sharing their revenues equitably.

However, the FGDs agreed on the need for counties to develop memoranda of understanding amongst themselves to guide their mutual exploitation of shared or exclusive resources. Such a measure could be among those under-taken in the context of the Integrated County Development Plans, as well as the Inter-Governmental Relations Bill, these frameworks also facilitating the shared personnel proposed in Section 6.5 of this paper. The FGDs also felt that in providing livelihood and improving county-based resources, the county government’s focus should initially be on the home county before moving outwards, even if only in terms of providing such hosting counties’ youths with employment. This would reduce the extent to which a host county feels it is losing out on its natural resource endowment to ‘outsiders’.

6.7 Citizen Participation and Oversight Among the governance values and principles provided in Article 10 (2) of the Constitution are ‘sharing and devolu-tion of power’, ‘democracy and participation of the people’, ‘inclusiveness’, and ‘transparency and accountability’. Pursued to their logical conclusions, these provisions should ensure citizen participation, which however, invariably sits uncom-fortably with the elite. The FGD participants were however, keen on the institution of effective participation and oversight frameworks and made several suggestions towards that end.


Several FGDs mentioned safe whistle blowing as a means of deterring mismanagement of public finances. Kenya has enacted the Witness Protection Act, but has not fully opera-tionalised it, meaning that whistle blowers in major crimes might remain at risk. However, the FGDs supported the es-tablishment of frameworks that provide capacities for whistle blowers to operate. The FGDs also recommended some recognition for whistleblowers, such as material rewards, which would induce more people into the practice. However, conclusive action against suspects would also vindicate the risk taken by citizens in identifying culprits, a conclusion that has been sorely lacking hitherto, deterring further whistle blowing34.

Several articles in the Constitution provide the framework within which to regulate public finances and the procurement of goods and services. These are, Articles 226, 227, 228 and 229. These provisions are to be read alongside related legisla-tion, including the Government Financial Management Act, the Fiscal Management Act, the Public Procurement and Dis-posal Act, the Public Officers Ethics Act, the Anti-Corruption and Economic Crimes Act and the Public Audit Act, amongst various others. Citizens need some familiarity with the provi-sions in these pieces of legislation if they are to recognize indiscretions as they arise.

Meanwhile, investment in capacity building is imperative; and various initiatives have been undertaken with varying out-comes. Organisations like the National Tax Payers Association, the Kenya Alliance of Resident Associations and the Africa Centre for Open Governance are just a few among the many such organizations which have generated people-friendly publications elaborating on the oversight frameworks above, as well as the effects of their invocation. More such work needs to be undertaken, with the focus shifting decidedly to the sub-county level where the indiscre-tions are likely to shift to in the era of devolution. Institutions like KACC and the Kenya National Human Rights and Equality Commission should similarly decentralise to be near to the citizens. Grassroots organizations should be trained in the use of citizen audits and the development of citizen scorecards. This would require other training enabling such grassroots organizations to understand the whole development plan-ning, budgeting and implementation cycle so as to monitor the work of the CEC officers.

Specifically, the FGDs argued that corruption had acquired a cultural status in Kenya and must therefore be addressed from an early age. They pointed out the need for the issue to be incorporated in early education curricula. They also


lauded the proposed local recruitment of CG officers, arguing that this would promote accountable use of public resources. These measures could be greatly strengthened through the enactment of the Freedom of Information Bill, which would enhance access to public information on finances and other public resources that are susceptible to missmanagement. A good example is the manner in which budgets and budget flows in Uganda are posted on the notice boards outside the offices of the receiving institutions.

One FGD suggested legislation for mandatory citizen partici-pation. However, participation that transforms into a burden for citizens is unlikely to achieve desired outcomes. Some FGDs also objected to on-going initiatives by urban-based professionals whose objectives are to produce a development strategy for respective counties. One way of enhancing volun-tary participation is by involving the citizens in the develop-ment of their own strategic plans, which should incorporate a people-friendly monitoring and evaluation [M&E] framework. Already, the Local Authority Service Delivery Action Plan pro-vides a very elaborate framework for such participatory plan-ning and strategizing, which has however, not been deployed effectively. People also look to their faith leaders extensively for guidance, as was evident in the 2005 and 2010 referenda on the Proposed Constitution. TFDG (2011) has already proposed the Integrated County Development Plan whose production could be include an M&E framework based on an annual work plan, which the democratically elected citizen

oversight committees proposed by the FGDs could employ in keeping CECs and CAs accountable. This would be in line with Article 183 (3)’s requirement that, CECs provide CAs “with full and regular reports on matters relating to the county”.

Along these lines, Part X of the Devolved Government Bill is devoted wholly to civic education in CGs. The objective is “to have an informed citizenry that actively participates in governance affairs of the society on the basis of enhanced knowledge, understanding and ownership of the Constitu-tion (Section 107 (1).” As show in Figure 5.1, each of the four levels of county governance will have its own civic education committee. Further, Part VIII of the Bill is devoted to citizen participation, with Section 94 requiring CGs to facilitate necessary structures including: information communication technology based platforms; town hall meetings; and budget validation. Others include: notice boards (announcing jobs, appointments, procurement, awards and other important announcements of public interest); development project sites; or avenues for the participation of peoples’ representa-tives including but not limited to members of the national assembly and senate. Section 95 requires the establishment of Citizen Participation Forums at all CG levels whose outputs the Governor shall report to CA (Section 98). While the Bill provides multiple avenues for citizen participation, it is impor-tant that these are well mapped against need, to deter them from becoming an impediment to other activities.


7. Conclusions and the Way Forward Besides curtailing presidential powers, the Constitution also raised the profile of Parliament to which many of the powers previously vested in the President have been transferred. Thus, hopefully, the new bi-cameral Parliament will revert to its traditional functions of legislation, and oversight of public finances. Finally, the Constitution has provided the basis for a truly independent Judiciary whose performance will be critical for stemming impunity at all levels of the government. This development is very significant for the success of devolution in that the new judicial framework should be able to punish without fear or favour, deterring misappropriation of public resources. To this end, it will be important for the government to bring to some closure matters surrounding the instances of mega-corruption, such as Goldenberg and Anglo-Leasing, as the continued inaction on such past crimes perpetuates the culture of impunity.

On devolution specifically, the COE the 47 constitutionally legitimate districts into counties and provided a channel through which to review boundaries. Critically for equal op-portunities for development, devolution provisions require an independent CRA to equitably share revenues between the national and sub-national levels, with the latter’s dues being dispatched without delay. The Constitution also recognises the existence of marginalized areas, even if the resulting Equalisation Fund is rather modest, and also provides for grants from Treasury and for loans guaranteed by Treasury. An elected Governor will be at the centre of the operations of the CG, which will work in tandem with its CA, while having a senator as a liaison with Senate. The Governor will also employ individuals to the CEC using modalities specified in various proposed legislations.

It is significant that legislation governing CRA and urban areas and cities have been enacted. Various other legal and institutional instruments also await finalization, including five devolution bills by the TFDG. In this respect, it is important that the Transition to Devolved Government Bill be enacted to enable the establishment of the County Transition Authority (Section 4) which will then determine the current resource status of each county and its consequent readiness to assume the roles attendant on devolution (Section 9). Meanwhile, government departments, such as the Directorate of Person-nel Management and the Kenya Institute of Administration, are busy preparing syllabi for the training of county managers.

An underlying governance problem in Kenya undermining the emergence of a cohesive nation-state has been impunity by successive presidents. Kenya now has a New Constitution, which respected analysts have described as being exemplary when compared to other constitutions across the continent. Various events in the recent past point to a hopeful future for Kenya in respect to the issues discussed in Chapter Six of the Constitution on leadership and integrity. The FGDs conducted for this study however, indicated that there was limited un-derstanding of the Constitution by the public. .

Kenyans – and indeed, people all over the world – can never be equal. However, the literature on equity argues convinc-ingly that authorities are obliged to provide equal opportuni-ties for attaining optimal self-actualisation and development. Thus, Kenya’s independence development blue-print, SP 10/1965, in spite of its rhetoric on equality, set the country off on the wrong path in advocating preferential treatment for the parts of the country which had the greatest absorp-tive capacity – precisely because these had been favoured by colonial socio-economic and physical infrastructure invest-ments. This policy had the effect of laying the foundations for the inequalities and much of the poverty that had led to the simmering political tensions culminating in the unfortunate events in the wake of the mismanaged 2007 general elec-tions.

At a general level, the Constitution has made great strides against impunity by curtailing the basis of the country’s hith-erto ‘imperial presidency’, which had been entitled to make unilateral but critical national decisions. Parochial decisions fuelled patron-client relations, which undermined the checks and balances inherent in the principle of the separation of powers that had underlain the old Constitution. In that con-text, Parliament increasingly abandoned its functions of legis-lation and oversight of the generation and spending of public revenue. Increasingly, parliamentarians became ‘development officers’ in search of harambee funds for the construction of the most mundane of projects, such as churches or cattle dips. The emasculation of Parliament also undermined people participation in development. Despite the cosmetic reforms allowed by successive presidents since 1991, socio-economic development dithered in most parts of the country alongside the emergence of extensive mismanagement of available public finances. Demands for devolution therefore persisted as a possible means for reclaiming people’s participation in governance.


In terms of the way forward for civil society, there are two di-rections of engagement: upwards with the legislative process; and downwards with wananchi.

It is likely that Parliament will hasten the passage of the devolution bills, meaning any inputs into that process should be fast-tracked. Thus, it might be necessary to assume the bills reflect the outputs of the TFDG’s deliberations with wananchi, diminishing the need for further consultations with them. With respect to the upwards engagement, the flag has been raised by the dispute between Treasury and TFDG on the revenue split between the national and county levels, and Treasury’s covert attempt to retain control of budget funds. This suggests the need for civil society to sponsor urgent deliberations to ensure that opportunities provided by the Constitution and devolution bills are not lost. Consequently, civil society should:

• Review devolution bills to improve on the content • Identify individual parliamentarians who can form a cau-

cus to ensure that popular rather than elitist perceptions on devolution carry into law.

• Prepare to take advantage of Articles 118 and 119 of the Constitution, to put the people’s position directly before Parliament on issues of devolution, where this is necessary.

With respect to downwards engagement, civil society can contribute in two important areas. These are civic education and citizen participation. On civic education, it is impor-tant that a much more focused round is undertaken on the Constitution in general, and devolution and public financial management in particular. This would enhance the capacity of wananchi to exploit the participatory governance opportuni-ties offered by Articles 10, 118, 174, 184, 196 and 201, and Parts VIII and X of the Devolved Government Bill. To this end non-state actors such as KCSSP could sponsor:

• The un-packaging of the Constitution and selected pieces of legislation to ensure that citizens fully understand the provisions therein including the significance of those legislations to their lives

• Training of resource persons on devolution and gover-nance related issues. The resource persons will then become reference points within their communities

• Media related activities on the Constitution, devolution and related governance issues

• School-based competitions enhancing awareness of the Constitution and governance issues, such as through competitions involving essay writing, poster painting, debates and quizzes35.

• Inter-community quizzes on the Constitution and gov-ernance issues with Wanjiku as the participant. Attain-ments should be rewarded by investments in community amenities, such as improvements to the Community Information and Documentation Centres.

The initial focus of these outreaches could include the following:

• Political and socio-economic history of Kenya • Leadership and National Values• Public service delivery• Equity and equality• Separation of Powers between the Executive, Legislature

and Judiciary• Legislations on devolution• Taxation and Revenue Sharing• Security Structures• Natural Resource Management• International Laws

Besides on-going education and capacity building, non-state actors need to promote the capacity for citizen participation. This is especially important as the country approaches the eve of the first elections under the New Constitution, which will usher in devolution. Thus, among the areas of focus for the development of participation capacity will include:

• Registration of voters• Interaction with political parties• Finalisation of electoral boundaries (constituencies

and wards)• Elections – voting and monitoring• Nominations into parliament and county assemblies• Development planning• Budgeting and implementation• Auditing development interventions: whistle-blowing;

citizens’ report cards; etc • Legislation both in parliament and in county assemblies


Notes1. For example, an inter-school quiz starting from the sub-county levels upwards would disseminate much information at the grassroots.

The final stages could be televised, such as is done with Zain inter-schools challenge, and attainments appropriately rewarded with books and school equipment.

2. The current report was commissioned as TFDK was producing its first draft report. Since then, TFDK has not only finalised its report, but has also produced six bills designed to operationalise the Constitution’s Chapters 11 (Devolution) and 12 (Public Finance). The bills include the following: County Government Financial Management Bill, Devolved Government Bill, Inter-Government Fiscal Relations Bill, Inter-government Relations Bill, Transition to Devolved Government Bill, and Urban Areas and Cities Bill. The current report remains faithful to its original terms of reference sum-marised in Table 2.1, but incorporates pertinent issues from the six bills.

3. Jimbo is Kiswahili for region (sing.), the ma– prefix rendering the plural form.

4. The principle of equity recognises that people or regions cannot be equal. Thus, it is the responsibility of the government to provide equal oppor-tunities which enable all peoples and regions to maximise their potential.

5. HDI compares a region’s attainments in income per head, education enrolment and adult literacy. Scores tending towards zero (0) reflect poor welfare attainments, while those tending towards 1.00 reflect good attainments. Norway had the highest global 2009 HDI score 0.938, while Gabon’s score of 0.648 was highest for sub-Saharan Africa, placing it in position 95 globally.

6. In urban areas, for example, Europeans occupied the higher ground (Milimani), the Asians lived on the middle ground, while the Africans occupied the lower grounds towards which sewage flowed and garbage was dumped. In public transport, the races traveled ‘first’, ‘second’ and ‘third’ class respectively.

7. Other factors also influenced the location of white settlement: for example, mosquitoes (malaria) and tse tse flies (sleeping sickness) discouraged European occupation of the Lake Victoria region.

8. Africans of age became ‘target labourers’ on European farms to enable them to earn enough money with which to pay such taxes as the poll, hut and wife taxes.

9. Chaiken (1998) illustrates how missionary initiatives overcame resource constraints in providing health care for the neglected African population.

10. The ‘big tribes’ in KANU included Kenyatta’s Kikuyu people and Oginga Odinga’s Luo people. The ‘small tribes’ included the Luhya, Kalenjins, Miji Kenda, amongst others.

11. The policy proved quite controversial for becoming an ‘Africanisation’ scheme, which ignored the existence non-black Africans.

12. Such sources included the Industrial Development Bank, Industrial and Commercial Development Corporation, Agriculture Finance Corporation and Agriculture Development Corporation. Anecdotal information suggests that many of the businesses in Nairobi’s Central Business District went to Muranga investors who happened to come from the then Commerce minister’s home district.

13. For example, delays emerged in the finalisation of the annual public audit of government spending, and little attention was paid to the irregu-larities unearthed by such audits.

14. Under SAPs, donors provided loans or grants on condition that receiving countries undertake specified public management reforms to reduce government provisioning of goods and services.

15. Mbugua’s Kibwezi research for example, established an abrupt 40% decline in the use of public health services.

16. The development of LASDAP was designed to be mandatorily participatory. In practice, however, participation of intended beneficiaries was highly constrained. For the design of the process, see http://www.

17. In practice, parliamentarians have perceived CDF as a substitute private source of harambee funds, notwithstanding the fact that the Fund’s launch coincided with a ban on harambee fund-raising.

18. Israel’s 2009 HDI score of 0.872 ranks it 12th globally, while Libya’s 0.755 is the highest on the African continent and ranks it 55th globally.

19. ‘Net enrolment’ refers to the share of a school-going age cohort which is in school, as opposed to the ‘gross enrolment’ which includes all children in school, whether under- or over-age.

20. The National Accord that resolved the post-2007/08 violence resulted in constitutional changes that created a prime minister whom the presi-dent must consult on various key decisions.

21. ‘Wanjiku’ was former President Moi’s exasperated characterization of the average Kenyan whose potential contribution to the comprehensive constitutional review process he was highly dismissive of in the face of persistent demands by oppositionists and civil society for a people-driven review process.

22. Among the few African countries not colonized ahead of the First World War were Ethiopia and Liberia. In sub-Saharan Africa, Ghana’s 1957 ac-cession to independence opened the floodgates, with most of the countries on the continent getting independence between 1960 and 1965.


23. The political decentralization index measures the levels of SNGs/LAs elected in free and fair elections. Administrative decentralization is gauged by extent to which statutes define roles between authorities, including the right to hire and fire, while fiscal decentralization is reflected in the extent of certainty over fiscal transfers (formula-based vs. ad hoc), and the share of national resources controlled by SNGs.

24. Moi unconstitutionally decreed 24 politically identified districts into existence. By 2010, Kibaki’s additional unconstitutional districts mapped just about each parliamentary constituency. It is conceivable that most parliamentarians would have demanded their constituencies to become counties under devolution.

25. During the 2005 referendum on the Proposed Constitution – the Wako Draft, the presiding Electoral Commission of Kenya decided that the symbol of support would be a banana, while that of opposition would be an orange.

26. As noted in the Introduction and in Section 3, the independence constitution’s jimbos were ethnic enclaves designed to protect the ‘small tribes’ against being geographically over-run by the ‘big tribes’.

27. The forests exclude those held under community or ancestral tenure, or those held in trust by counties.

28. Thus, the genuinely poor Somalis will be treated like the genuinely poor Kenyans anywhere else, while the rich Somalis are treated like other rich Kenyans everywhere.

29. The Kenya Demographic and Health Survey 2008/09 shows for example, that child mortality among mothers without complete primary education was 112 per thousand compared to 86 for those who have.

30. Appendix Box 5.1 provides the international laws and conventions to which Kenya is a signatory.

31. The management of harambee fund-raising was entirely ad hoc, meaning it was never clear who contributed how much, and how the money was subsequently spent, as there was no audit of the resources.

32. The argument is that the ‘bright city lights’ (amenities) attract the youth away from rural hardships.

33. ‘Controversial’ because the census returns for the whole of North Eastern Province were cancelled over suspected inflation of the numbers of people.

34. The most celebrated failure to act on whistle blowing is that of former Ethics czar, John Githongo, whose elaborate revelations on the ‘Anglo-Leasing scam’ are well documented in Wrong (2008).

35. For example, an inter-school quiz starting from the sub-county levels upwards would disseminate much information at the grassroots. The final stages could be televised, such as is done with Zain inter-schools challenge, and attainments appropriately rewarded with books and school equipment.


GLOSSARYBudgeting – involves estimating the financing needs of particular interventions over a specific time-period, normally one year. The process identifying the core sources of the estimated financing needs, as well as probable supplementary sources of financing.

Equity – refers essentially to justice (in managing issues). Equity recognises that, for example, people cannot be equal. It therefore calls for a treatment of people in a way that reflects recognition of their inherent inequalities of person or opportunities. Thus, for example, affirmative action measures promote equity.

Human Development Index – HDI is a composite, multifaceted, measure of human welfare. It is a UNDP framework for comparing human welfare across countries and regions, and over time. The traditional measure of welfare was (national) income per head, which was deceptive in assuming that each individual had access to that income. HDI combines an income measure with aspects of welfare, such as life expectancy, adult literacy, gross enrolment, amongst others.

Majimbo – is the plural form of the Kiswahili word, jimbo, meaning province or region. During the 1961/62 Lancaster House talks for Kenya’s independence, the KADU party successfully lobbied for the country to be divided into semi-autonomous majimbos to ensure Kenya larger ethnic groups did not dominate the many smaller ones in national affairs. The independence constitution was consequently dubbed the Majimbo Constitution. During the comprehensive constitutional review (2000-2010) detractors of the devolution model argued it would create ethnic enclaves as at independence from which ‘foreigners’ would be expelled.

Nation – refers to a united people, often occupying a specific area/region, but may also have been scattered while retaining a strong sense of belonging to their roots.Nation-state – a country whose people have espoused a common identity despite belonging to diverse ethnic groups. Thus, Tanza-nia is arguably a stronger nation-state than Kenya.

Planning – this refers to the identification of a strategy over a specific timeframe for addressing an existing problem or issue. It involves clarifying elements of the strategy, sequencing and costing them, and developing a framework for monitoring and evaluat-ing proposed interventions.

Policy – refers to a statement of intentions with respect to managing a particular problem or issue. A policy document contains the identification and conceptualization of the problem or issue, outlining of strategies for addressing the problem/issue, allocation of roles for the various stakeholders who might address the problem or issue. It can also address issues such as the sources of financ-ing for selected interventions, the framework needs for the interventions, such as legislation, and the inherent risks in the strategies adopted.

State – the set of instruments that create a country, and cause it to be recognized by other countries. These include the Constitu-tion, laws, national flag, national anthem, membership to international organizations, amongst others. Ordinarily, the state does not refer to the people.

Wananchi – plural for mawananchi, the Kiswahili word for citizen

Wanjiku – Frustration at the persistent demands for a people-driven constitutional review process, Wanjiku was former president Moi’s dismissive characterization of the ordinary Kenyan who he argued could add no value to the review process


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APPENDICESApendix 1: List of FGD Participants Bungoma Daudi Saransora - District Development Officer, BungomaCrescentia Nanjala - Librarian, WebuyeFlorence Lukosi - Cultural OfficerAnne Bwisa - Maendeleo ya WanawakeTeresa Nyachwa - Female RepresentativeFerdinand Otemaka - Youth RepresentativeMr Opondi - ACE Africa DirectorPastor Nyongesa - Christian RepresentativeKassim Ratore - Muslim RepresentativeFlorence Lyambila - CACC Kanduyi

Embu Pravin Shah Martin Wachira Anne Muthamia Sicily Mureithi Joshua Mwangi Purity Wawira Caroline Ngendo Rev. Joyce Njiru L.M. Nzioka Garissa Zahara al Shurie - Meandeleo ya WanawakeSheikh Ismaili Maalim Isaack - Young MuslimsAbdikadir Aden - Garissa Youth Environment MovementOsman Mohamed Ali - Physically Disabled, GarissaKhatra Iman Sigat - Maendeleo ya Wanawake, FafiHabiba Ibrahim Adon - Garissa YouthKeneth Ruteere - Provincial Planning OfficerSilas Oure - District Development OfficerDeputy Mayor, Garissa

Kilifi Catherine Shigoli - Coastal FisherfolkBilkis Nassir - Amazon Community Integrated ProjectKalama Karima - Rafiki Participatory Development PartnersMartha Karisa Ezra Koi - Positive Attitude YouthFaruk Lali - Youth AllianceWalker Mwandoto - CBO, Sokoni WardLydia Kasina - Moving the Goal PostZarina Mwatsahu - Amazon Community Integrated ProjectSimon Mwakisha Laikipia Joseph Ndegwa Mawnagi Paul Leringato Alex Nzau Joel Kamau Raphael Mumbiko Clinton Maina Harunb Njuguna Adan N. Guracha Helen W. Kurutu Charles Nderitu Muranga Josphat Kanyingi Ephraim Maina Isaac Maina Manyeki Ephraim Nderu Thomas Njoroge Kimani Jane Kamwaga Michael Mwnagi Jecinta Nganga Purity Njuguna George Natembya


Apendix 2: Kenya’s Adherence to International Law

Box A–5.1: Kenya’s Adherence to International Law

Regional Conventions

• 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (Ratified by Kenya on 23.06.92) • 1977 Convention for the Elimination of Mercenaries in Africa (Signature only on 17.12.03) • 1981 African Charter on Human and Peoples’ Rights (Ratified on 23.01.92) • 1990 African Charter on the Rights and Welfare of the Child (Ratified on 25.07.00)• 1995 African Nuclear Weapon Free Zone Treaty (Ratified on 15.11.00) • 1998 Protocol to the African Charter on Human and Peoples’ Rights, establishing an African Court on Human and Peoples’

Rights (Ratified on 04.02.04) • 1999 OAU Convention on the Prevention and Combating of Terrorism (Ratified on 28.11.01) • 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Signature only on

17.12.03)

International Conventions/Treaties

• 1951 Refugee Convention (1966)• 1965 International Convention on the Elimination of All Forms of Racial Discrimination (2001)• 1966 International Convention on Civil and Political Rights (1972)• 1966 International Convention on Economic, Social and Cultural Rights (1972)• 1967 Refugee Protocol (1981)• 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1972)• 1979 Convention on the Elimination of All Forms of Discrimination against Women (1984)• 1984 Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment and Punishment (1997)• 1989 Convention on the Rights of the Child (2000)• 1998 ICC Rome Statute (2005)• Convention on the rights of Persons with Disabilities (2008)• International Convention for Protecting All Persons from Enforced Disappearance (2007)


Apendix 3: Summarised County Revenue and Expenditure Status FY 2008/2009

County Status County Status County Status County Status

Nairobi Embu Elgeyo Marak-wet

Mandera

1 118.4% 1 75.5% 1 58.0% 1 46.4%

2 5,677,267,207 2 196,199,225 2 83,489,394 2 77,894,529

3 3,894,654,432 3 46,922,677 3 33,513,341 3 50,183,620

Kisumu Garissa Kirinyaga Samburu

1 73.8% 1 33.9% 1 63.7% 1 82.2%

2 477,132,010 2 105,436,459 2 318,631,724 2 161,229,700

3 244,594,402 3 64,051,055 3 71,188,560 3 24,692,303

Migori Kisii Kiambu Marsabit

1 68.5% 1 53.3% 1 90.7% 1 81.5%

2 218,049,746 2 291,386,457 2 843,985,874 2 64,973,847

3 141,568,593 3 132,869,506 3 339,603,626 3 44,567,756

Bomet Homa Bay Kilifi Nakuru

1 47.9% 1 30.3% 1 75.8% 1 74.6%

2 78,959,729 2 187,809,533 2 362,723,512 2 835,667,374

3 41,191,699 3 73,138,450 3 160,420,740 3 332,624,616

Siaya Isiolo Trans Nzoia Mombasa

1 47.8% 1 77.6% 1 105.1% 1 84.1%

2 190,650,986 2 138,477,205 2 83,155,667 2 1,454,383,320

3 85,437,769 3 10,389,982 3 83,155,667 3 616,539,897

Bungoma Baringo Kitui Narok

1 53.1% 1 52.2% 1 57.1% 1 100.2%

2 407,019,380 2 155,173,162 2 247,771,891 2 580,964,004

3 191,391,244 3 37,336,957 3 87,210,327 3 106,468,545

Kericho Kajiado Kajiado Nyandarua

1 79.3% 1 71.9% 1 70.7% 1 64.7%

2 336,849,790 2 263,428,946 2 158,301,451 2 151,941,537

3 138,280,336 3 63,026,847 3 96,607,135 3 44,888,150

Uasin Gishu Murang’a Laikipia Taita/Taveta

1 102.4% 1 73.3% 1 86.5% 1 90.9%

2 405,580,675 2 207,294,074 2 315,233,153 2 130,485,749

3 277,758,568 3 53,574,610 3 102,356,471 3 50,652,010

Busia Machakos Lamu Tana River

1 79.4% 1 96.7% 1 62.5% 1 90.3%

2 205,885,731 2 468,708,038 2 39,765,085 2 31,054,615

3 128,982,484 3 229,270,559 3 12,491,969 3 45,628,084

Kakamega Nandi Turkana Tharaka-Nithi

1 63.1% 1 55.1% 1 31.4% 1 71.7%

2 321,349,525 2 208,920,812 2 108,147,887 2 24,910,296

3 230,305,711 3 72,940,052 3 44,296,554 3 18,056,197


West Pokot Nyeri Vihiga Meru

1 23.3% 1 88.7% 1 66.3% 1 69.2%

2 128,966,479 2 320,946,582 2 74,575,155 2 349,444,421

3 74,673,475 3 155,554,344 3 31,927,549 3 216,922,280

Nyamira Makueni

1 30.7% 1 37.1%

2 84,437,895 2 188,795,983

3 56,181,934 3 54,114,951Source: Kenya Local Authority Reform Programme

Key: 1–Own revenue/total expenditure (%); 2–Total Expenditure; 3–Revenue surplus/deficit.


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