Governance in Devolved Kenya i

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GOVERNANCE IN THE DEVOLVED KENYA: PROSPECTSFOR PUBLIC PARTICIPATION AND DEMOCRACY

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Abbreviations and Acronyms

Constitution Implementation Oversight Committee (CIOC)

Commission for the Implementation of the Constitution (CIC)

Committee of Experts (CoE)

Inter-Parties Parliamentary Group (IPPG)

Constitution of Kenya Review Commission (CKRC)

District Focus for Rural Development (DFRD)

United Nations (UN)

Kenya Human Rights Commission (KHRC)

United Nations Declaration on Human Rights (UDHR)

Non-governmental organizations (NGOs)

Constituency Development Fund (CDF)

Local Authority Transfer Fund (LATF)

National Rainbow Coalition (NARC)

Party of National Unity (PNU)

United Nations Development Programme (UNDP)

U.S. Agency for International Development (USAID)

Kenya African Democratic Union (KADU)

Kenya African National Union (KANU).

District Focus for Rural Development Strategy (DFRD)


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CHAPTER ONE:

INTRODUCTION AND RESEARCH METHODOLOGY

1.1 Introduction

Kenya has been governed under a highly centralized system of government since 1964. This

situation was created by the abolition of the post of Prime Minister and the creation of the office

of the Presidency vide a constitutional amendment in 1964. 1) It has been argued that the highly

centralized government in the Kenyatta, Moi and Kibaki regimes and the bureaucracies built

around them dealt a major blow to effective public participation in the governance process in

Kenya. Democracy suffered during the one-party state regime under Kenyatta and Moi. Further,

the immense powers bestowed upon the presidency had the effect of making such presidents to

be authoritarian and dictatorial further impacting negatively on democracy, public participation,

the rule of law and governance.

Little democratic space was restored after the re-introduction of multi party politics in 1992 2) but

it soon became apparent that more needed to be done. This was so because power and public

institutions had been personalized, the public who were directly affected by decisions were being

left out and ignored on important decision making process, the presidency was too powerful and

authoritarian, there was poor governance in government departments and public officials and

leaders were unaccountable for their actions. These and many other reasons informed the

advocacy and fight for a new Constitution.

The search for a new constitutional dispensation was a long and bumpy one. It was characterized

by lack of consensus on contentious issues, allegations of political sabotage, and frustrations of

1)Constitutional Amendment Act No. 28 of November 24, 1964.2)Multi-partism was restored in Kenya in 1991 vide a constitutional amendment that repealed section 2A of the

Constitution. This happened due to pressure from civil society groups, donor organization and the public w hodemandeddem ocracy.


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the process at times. 3) This long search for a new Constitution ended on August 4, 2010

referendum vote where over 67% of Kenyans ratified new supreme laws for Kenya.

Currently, the implementation phase is in progress. The implementation phase is poised to take

up to five years and shall be characterized by building of the relevant legislative, structural and

institutional framework in order for the new Constitution (herein referred to as the "2010

Constitution") to become fully operational. Only Articles of the 2010 Constitution that do not

require supportive legislation or creation of structures and special institutions are operational.

Two crucial implementation institutions 4) empowered to guide and drive the process of

implementation have been set up. These are the Constitution Implementation Oversight

Committee (CIOC) and Commission for the Implementation of the Constitution (CIC) 5). The

Constitution Implementation Oversight Committee is composed of Members of Parliament while

the Implementation Commission is made up of experts drawn from various fields. These two

institutions shall be responsible for steering forward the implementation process with the bulk of

workload being on the Implementation Commission. The Judicial Service Commission has also

been constituted for the crucial role of judicial reforms as per the 2010 Constitution.

The 2010 Constitution introduces many and far reaching changes in Kenya. This is evidenced bythe long implementation period, 6) numerous legislations to be enacted, 7) and a huge proportion of

structural and institutional changes to be undertaken in the five year implementation phase.

3)Collins Odote (2002) notes, "President Moi had continuously expressed his disinterest, nay strong opposition to

the Review Process, even to the extent of refusing to present his views to CKRC e ven after a date had been set for

him to give his views. It therefor e came as no surprise whe n he dissolved parliamen t at the same time that theNational Constitutional Conference was set to commence deliberations on the draft Constitution." see Collins

Odote (2002) Too Near Yet Too Far: The State of Constitutional Development in Kenya available athttp://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=20&Itemid=27 (last

accessed on June 28, 2011)4)The institutions are created by the Sixth Schedule of the Constitution of Kenya 2010.5)The CIC is chaired by Mr Charles Nyachae, a Nairobicity lawyer.6)The implementation of the Constitution is to span up to a period of five years.7)The fifth schedule to the Constitution of Kenya 2010 lists more than 49 legislations that parliament is supposed toenact within a period of five years.


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This study looks in to the devolved system of government as entrenched in the 2010 Constitution.

Devolution as a system of government is a major shift from the highly centralized system that

Kenya has interacted with since 1964. This study interrogates the impact that devolution willhave on the governance process in Kenya especially as regards to public participation and

democracy.

Article 174 of the 2010 Constitution spells out the objects of devolution. One such object of

devolution is that it will aim to promote democratic and accountable exercise of power. 8) Another

objective of devolution is that it aims to give powers of self-governance to the people and

enhance the participation of the people in the exercise of the powers of the State and in making

decisions affecting them. 9) This study focuses on these particular objectives of devolution and

whether they are likely to be achieved.

Interrelated questions answered by this study include: will devolution promote and enhance

public participation in the governance process of the devolved government? Will such

participation be effective and meaningful? What of democracy: How will it be affected in the

devolved government structure?

1.2 Background of the study"In line with the global trend toward democratization, the issue of citizen participation in

governance has gained increasing significance in both practical politics and academic

disciplines. The provision of such citizen participation in governance is essential for

enhancing public confidence in governing institutions, formulating state policies based on

people's needs, and receiving necessary feedback on people's reactions to such policies." 10)

Public participation has become a very crucial instrument in ensuring that good governance and

accountability is achieved at all levels of governance of public institutions. Public participation

8)Article 174 (a) Constitution of Kenya 2010.9)Article 174 (c) Constitution of Kenya 201010) M. Shamsul Haque (2003) "Citizen Participation in Governance through Representation: Issue of Gender in EastAsia," International Journal of Public Administration Vol. 26, No. 5, pp. 569-590.


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stems from the basic principle that since the public is directly or indirectly affected by decisions

made by the government, public institutions and authorities, then it should be allowed to

participate in the decision making process.

In Kenya, a critical look at the history of public participation reveals institutional, legislative and

policy barriers to its effective achievement. The legislative and policy framework for public

participation in Kenya has not been comprehensive and authoritative. Public institutions have

over the years been personalized making it virtually impossible for the public to have a say in

decision making. The highly centralized government with a powerful presidency established

bureaucracies and systems that were impenetrable to those outside the system.

Kenya's Independence Constitution (also known as the Lancaster Constitution) provided for a

devolved system of government popularly referred to as the majimbo system. The system was

characterized by establishment of seven regional governments in Kenya. 11) Devolution as a

system of government in the world is often associated with the prospects of democratic self-

governance, public participation, nation and nationhood building, equalization and efficient and

effective delivery of services. 12) Therefore, hypothetically, the majimbo system at independence,

being a devolved system, provided what seemed to be an appropriate design to promote public

participation in governance. Whether the system if it had fully been implemented would have

encouraged and promoted public participation is a matter of determination.

The majimbo system was soon abolished vide a Constitutional Amendment in 1964. Other

constitutional amendments were effected between 1964 and 1969 which had the effect of

creating a highly centralized system of government. By 1969, amendments to the Constitution

had consolidated immense powers on the institution of the presidency, powers which were solely

exercised by the president. Dictatorship and authoritarianism were the natural consequence of

such immense powers bestowed upon a single person. In an authoritarian regime the public has

11) Section 91 of the Independence Constitution lists the regional governments as Coast Region, E astern Region,

Central Region, Rift Valley Region, Nyanza Region, Western Regions and North-Eastern Region.12) Dan Juma "Devolution of power as constitutionalism: The constitutional debate and beyond," International Comm ission of Jurists (Kenya-Section) and Konrad Adenauer Stiftung


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no say, other institutions suffer and decisions emanate from one center. Scholars have expressed

the opinion that it is the 1964 amendment making Kenya a Republic that paved way for tyranny

and dictatorial rule by President Jomo Kenyatta and later by President Moi. 13) Charles Hornsby(1989) thus notes that both under President Kenyatta and President Moi, Kenya was increasingly

dominated by the institution of the Presidency and the authorities of the other organs of

government were seriously weakened. 14)

Prof Anyang' Nyong'o (1989) gives an insight as to how presidential authoritarianism emerged in

independent Kenya. He notes that:

"Presidential authoritarianism is born when political power is so concentrated in the office of the

president that no major decision is taken within the bureaucratic or political process without

reference to this office, or when the legitimacy of bureaucratic decisions is derived from their

claim to have the blessing or backing of the president. The presidency becomes the biggest bureau

in terms of administration and policy-making; all other organs of government gradually begin to

bend to it and politicians stand in awe of the power of the president." 15)

Such centralization of power had the effect of distorting public participation, democracy, and the

authority of other institutions.

Unaccountability and abuse of power by the sitting president and his close cronies and buddies

who held senior positions in government became the order of the day. The public was reduced to

being spectators in the governance process, participating albeit ineffectively during elections and

barazas. 16) It is during such times that many historical injustices were committed to the Kenyan

people. For example, an injustice like unequal distribution of resources leading to

13) See Ben Sihanya (2010) "Reconstructing the Kenyan Constitution and State, 1963-2009: Lessons from German

and American Constitutionalism," L aw Society of Kenya (LSK) Journal, Nairobi.14) See Charles Hornsby (1989) "The Social Structure of the National Assembly in Kenya, 1963-83," in The Journal of Modern African Studies, Vol. 27, No. 2, at p. 275.15) P. Anyang' Nyong'o(1989) "State and society in Ke nya: The disintegration of the nationalist coalitions and the r ise

of presidential authoritarianism," Afr ican Affairs, London , Vol. 88 No. 351.16) Barazas were informal meeting convened by officials of the provincial administration at the lower level especiallythe chief, sub-chief and village elder. These sessions were mainly used to communicate government policies to the

people rather than the people participating in decisions making.


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underdevelopment of certain regions is blamed on the highly centralized system of government.

Distribution of resources, planning of development, implementation of policies and important

decisions were made by the central government with the president almost having veto power. 17)

Therefore, bulks of the resources were directed to the president's home turf or "politically

correct" 18) regions.

The Kenyatta and Moi regimes made various attempts to decentralize the Kenyan government.

Most of these attempts failed and ended up strengthening centralization. Measures to decentralize

and encourage public participation included establishment of Local Authorities, implementation

of policies like the District Focus for Rural Development, among others. The policy and

legislative blueprints for these programs still maintained central authority for key decisions.

The one party system of government did not help the democratic situation of Kenya.

Participation of the public in elections was only to legitimize the government in power. Elections

manipulation ensured the public did not determine who won elections. Further, systems like

mlolongo 19) were seriously defective and encouraged commission of election irregularities.

Even after the introduction of multi party politics the situation did not change much. The multi

party democracy still could not help facilitate and promote public participation in governance.Gyimah-Boadi thus notes:

"On the whole, A frican parliamentary systems have yet to marry multi partism (which stresses the

representative elements of liberal democracy) with the grassroots participation and engagement

that all-inclusive single parties or mass movements sought to stimulate in an earlier era. The

multiparty legislatures of A frica today suffer from inadequate links to rural society and inadequate

17) Relevant ministers who were presidential appointees made important decisions regarding distribution of key

resources in the country. This was as per the budgetary allocations to the ministries. But Ministers in the Kenyattaand Moi regimes had to be very loyal to the president in order to continue serving. Therefore, their decisions hadto be approved by the president especially on development issues. Parliament as an institution was weakened by

the existence of sycophants of the president. Also, the one-party system ensured there was no opposition in

parliament.18) "Politically correct" regions were regions that had supported the president in the elections or where his closecronies and buddies hailed from.19) Mlolongo system entailed voters queuing behind the candidate that they supported. Voting was in the open.


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citizen involvement in the period between general elections. But legislatures in no-party, single-

party, or "movement"-based systems suffer from a crippling lack of engagement with city

dwellers and the well-educated, including the professional classes." 20)

It is for these and many other reasons that Kenyans started advocating for constitutional change.

The issues of concern included: the highly centralized system of government, excessive powers

of the presidency, continued abuse of citizens' rights, lack of public participation in governance,

unaccountability of public officers, among others. Thus the beginning of a long constitutional

making process that finally ended in August 2010.

On August 27, 2010 a new Constitution of the Republic of Kenya was promulgated by His

Excellency President Mwai Kibaki 21) at the historic Uhuru Park Grounds. This came after

Kenyans had overwhelmingly 22) voted for the then Proposed Constitution of Kenya prepared by

the Committee of Experts 23) (CoE) and published by the Attorney General (AG) of Kenya, then

Amos Wako. The promulgation ended the long struggle and search for a new constitutional order

for Kenya. The struggle started with calls for re-introduction of multi-partism. This was realized

in 1991 following the repealing of section 2A of the then Constitution. 24) This was followed by

calls for minimum reforms prior to the 1997 general elections. This was to ensure level playing

field for opposition candidates and the incumbent in the general elections. The calls led to thesigning of the Inter-Parties Parliamentary Group (IPPG) in 1997 between the then President Moi

and the opposition. In 2000, the Constitution of Kenya Review Commission (CKRC) was

established which was mandated with collecting views from the public and drafting a proposed

20) E. Gyimah-Boadi (1998) "The Rebirth of African Liberalism," Journal of Democracy 18-3121) Mwai Kibaki is the third president of the Republic of Kenya who was elected in 2002 and r e-elected in the

controversial December 27, 2007 general elections.22) According to the final tally of the Interim Independent Electoral Commission (IIEC) 6,092,593 Kenyans voted forthe new Constitution representing over 67% of the total valid votes cast. The document was also supported by at

least 25% of the votes cast in all the eight Provinces in Kenya. (Source: http://www.iiec.or.ke/archives/201008 ; last

accessed on November 22, 2010)23) The Committee of Experts was mandated by Constitution of Kenya Review Act to draft a new Constitution for

Kenya. A new Constitution was the 4 th Agenda agreed by the Mediation team formed to mediate the post-election

stalemate in Kenya following the disputed 2007 General Election.24) The repealing was effected by the Constitution of Kenya Amendment Act. No. 12 of 1991


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A notable feature of the 2010 Constitution is that it introduces or rather re-introduces devolution

in Kenya. The devolved system of government entrenched in the 2010 Constitution is

characterized by creation of forty seven county government in the country. A nationalgovernment to perform such functions as stipulated will remain in place.

Therefore, Kenya is faced with a typically new system of government. The expectations of every

person are that this new system of government will work out much better than the previous and

eliminate all problems associated with the 1969 Constitution. The question is will it? Will this

new system of government promote public participation? Will it enhance democracy? Will

governance improve due to the vigilance of the governed? This and other interrelated questions

are explored in depth in this study.

1.3 Objectives of the Study

The main aim of this study is to examine the extent in which devolution in Kenya promotes and

enhances democracy and public participation. The study further examines the effect of

devolution on governance. Devolution brings the government closer to the people. It is believed

that in a devolved system of government, the public has a more realistic chance of participating

in decision making. Public participation is important given the fact that decisions made by public

institutions and authorities directly or indirectly affect the public. With public participation and

vigilance, leaders are bound to be more accountable. Democratic space alsoincreases and

democratic and accountable exercise of power then follows. This improves governance of public

institutions, authorities and the government.

This study thus looks at how the Kenyan devolution structures would be able to achieve all these

and ultimately promote democratic and accountable exercise of power in governance. In

particular, the study analyzes the relevant institutional, legislative and policy framework that

should be put in place to ensure democratic exercise of power and public participation is

achieved.


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1.4 Rese arch Ques tions

The research questions of this study are as follows:

a) What are the prospects for democracy and public participation in devolved Kenya?

b) What will be the effect of devolution on governance in the devolved system of

government in Kenya?

c) How suitable is the Kenyan devolution structure designed to create a public participation

environment that will actively be involved in affairs of governance at all levels?

1.5 Justi fication of the s tudyA new Constitution has been promulgated and is in the implementation phase. The 2010

Constitution introduces a devolved system of government that Kenya interacted with vaguely at

independence. It is largely expected that this new system of government will enhance democratic

and accountable exercise of power. Citizens expect to have more access to the devolved

governments and participate more to the governance of the county.

This study is important in informing the formulation of policies, crafting action plans, proposing

of legislations, creation of structures and building of institutions of the devolved government soas to ensure the devolved government is more democratic, accountable and participation of the

public encouraged and promoted.

This study examines the failures of the Independence (Lancaster) Constitution as subsequently

amended regarding public participation and democracy and examines how devolution can be

used to achieve the desired results. This will be important in informing the implementation team

and officials of the county governments to make more informed decisions when it comes to

creation of requisite mechanisms and structures for public participation at the county level andnational level.

It should be remembered that the system of government to be adopted was a very contentious

issue in the constitution making process. Whereas it appeared that majority of Kenyans seemed


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This study uses the following literature in interrogating the main research questions. The listed

literatures are only but a selection of other numerous materials on the concept of devolution,

democracy and public participation.

a) Devolution in Kenya: Prospects, Challenges and the Future 28)

The book is a very relevant and useful resource to this study. It is of fairly recent publication

having been published in 2010 and thus the writers had a chance of analyzing the provisions of

the 2010 Constitution on devolution. The book looks at Kenya's devolution as entrenched in the

2010 Constitution and analyses the prospects, challenges and the future of this new system of

government in Kenya.

A contributor in the book, Annette Omolo, looks at the history of devolution and decentralization

in Kenya since independence. She assesses Kenya's efforts at devolution since independence with

particular focus on the majimbo system and the current local government system.

Another contributor gives a comparative study of devolution. He seeks to draw lessons for

Kenya's devolution from countries with varying forms of devolution. He particularly focuses on

South Africa, Nigeria, India, Papua New Guinea and Bolivia.

Finally, the book looks at the issue of fiscal decentralization and tries to answer the question

whether such decentralization fosters or retards national development in Kenya. The contributor

in this chapter examines the policy, constitutional and legal framework providing for

decentralized funds, including local capacity to handle the decentralized funds.

This study greatly benefits from the critical analysis provided in the book. The study particularly

benefits from the historical analysis, the comparative approach to the question and an analysis of

fiscal decentralization.

b) Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective by Walter Oyugi 29) :

28) Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future Institute of Economic


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Walter Oyugi in the Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective analyses devolution as was proposed by the "Bomas Draft 30) ." Although

his chapter focuses on the Bomas Draft, it is relevant and authoritative. This study benefits fromOyugi's historical analysis of decentralization to provide a clearer perspective on the history

behind the entrenchment of devolution in the 2010 Constitution.

Further, the new Constitution borrows heavily from the Bomas Draft. It should be recalled that

the Bomas process was a people driven process and thus the draft appeared to be acceptable to

Kenyans and the changes that were made to it by the Attorney General Amos Wako in Kilifi are

said to have contributed to the draft's rejection in the November 21, 2005 referendum vote.

Walter Oyugi's discussion on the independence Constitution or majimbo Constitution is in depth

and analytical and will be very helpful to this study. He analyzes the reasons why the majimbo

system failed at independence and blames the Kenyatta regime of prematurely killing the

majimbo system in order to consolidate powers to the president. He wonders whether the system

would have been desirable for Kenya had it been allowed to take shape.

On current devolution, Walter Oyugi is of the strong opinion that proper devolution is discernible

only where the devolved units have legislative power, financial independence and control of human resources. He terms the Bomas Draft as nothing short of a reinforced local government

system. His study aids this dissertation in providing the background politics that have been

associated with the search of decentralization design and thus understand how the current one

was arrived at.

c) Devolution: Reconstructing the Kenyan State by Yash Pal Ghai 31) :

Affairs Research Paper Series No. 24, Nairobi.29) Walter Oyugi (2005) "The Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective," in Kithure Kindiki's & Osogo Ambani's (eds) The A natomy of Bomas: Selected analysesof the 2004 Draft Constitution of Kenya Claripress Limited, Nairobi.30) The Bomas Draft was the Draft Constitution that had been prepared by the Yash Pal Ghai led Constitution of

Kenya Review Commission (CKRC) and discussed at the National Constitutional Conference at Bomas of Kenya.31) Yash Ghai (2007) "Devolution: Restructuring the Kenyan State," Lecture at the African Research and ResourceForum (ARRF) at the Kenya International Conference Center (KICC) Nairobi, 23 November 2007


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Thus, Dele Olowu (2001) states that decentralization takes many forms e.g. the delegation of

responsibility and authority to field units of the same department or level of government referred

to as deconcentration or the devolution of authority to locally constituted units of government orspecial-purpose authorities. 35)

1.8.3 Dimension s of decen tralization

There are three fundamental dimensions of devolution namely administrative, political and fiscal

decentralization.

a) Administrative decentralization is the transfer of responsibility for the planning, financing

and management of certain functions from the central government and its agencies tofield units of government agencies, subordinate units or levels of government, semi-

autonomous public authorities or corporations or regional or functional authorities. 36)

b) Political decentralization entails a movement away from a monocentric to polycentric

structure of political power and takes two forms, horizontal, where institutions that

promote separation of powers and accountability of the executive for its actions such as

the legislature and the courts are strengthened and vertical decentralization involving

assigning powers to local government structures. The main objective of politicaldecentralization is to promote greater citizen participation and higher levels of

accountability to citizens. 37)

c) Fiscal decentralization is the transfer of financial resources from the central government

to autonomous local agencies. This is done through the assignment of tax powers to

facilitate decentralized agencies implement their responsibilities. 38)

35) See Dele Olowu (2001) "Decentralization Policies and Practices under Structural Adjustment and

Democratization in Africa," Democracy, Governance and Human Rights Programme Paper Number 4 July 2001;

United Nations Research Institute for Social Development.


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Generally, decentralization is of four types: devolution, delegation, delocalization and

deconcentration. Therefore, use of decentralization and devolution interchangeably as if they

were one and the same might be misleading.

1.8.4 Forms of decentralization

a) Deconcentration

Deconcentration refers to the process of administrative decentralization whereby the central

government designs a structure that enables its field agents and offices to work in close

proximity to the local people. 39) The District Focus for Rural Development (DFRD) is a good

example of deconcentration.40)

b) Delegation

Delegation on the other hand is the transfer of responsibilities from central government to semi-

autonomous bodies that are directly accountable to the central government. 41) Examples in Kenya

include the local authorities, parastatals etc. 42)

c) Delocalization

Delocalization is defined as the spatial distribution of central government socio-economic

development facilities and activities such as schools, hospitals, etc. in peripheral regions. 43)

d) Devolution

Devolution is a form of decentralization. It is simply defined as the process of transferring

decision-making and implementation powers, functions, responsibilities and resources to legally36) Oloo A (2006) Devolution and Democratic Governance: Options for Kenya. Nairobi IPAR37) Ibid.38) Ibid.39) See John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," DiscussionPaper for Division for Public Administration and Development Management United Nations Department of

Economic and Social Affairs.40) Albert K. Mwenda (eds) (2010) Devolution in Kenya: Prospects, Challenges and the Future Institute of EconomicAffairs Research Paper Series No. 24, Nairobi.41) Ibid.42) Ibid.43) Ibid.


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constituted, and popularly elected local governments. 44) This is the popular meaning of the term.

Other definitions are as discussed below.

Political scientists define devolution as a process wherein a higher body confers powers upon a

lower body, but retains the right to retract the conferred powers. 45)

Prof. John W. Forje (2006) defines devolution or decentralization of power as to entails the

transfer of authority or responsibility for decision making from central to peripheral units within

an institution or organization. He describes it as a mechanism meant to boost participation of

recipients of public services. Prof Forje (2006) does not see the need to distinguish

decentralization from devolution but rather uses them to mean the same thing. 46)

Prof. Yash Pal Ghai (2007) on the other hand sees devolution as a way to disperse state powers

throughout the country. He sees a devolved system to the village level or grassroots as the best

form of devolution. 47)

Walter Oyugi (2005) describes devolution as to entail the transfer of power to elected sub-

national political entities. 48)

Dele Olowu (2001) states that it is through devolution that the central government confers self-governing capacities on local communities. 49) Critical attributes of local self-government include

44) Ibid.45) William D. Leach (2004) "Is Devolution Democratic?" Center for Collaborative Policy, California State University,

Sacramento46) John W. Forje (2006) " Rethinking Decentralization and Devolution of Power w ithin the African Context:

Challenges and Opportunities," paper presented to African Association for Public Administration and Management

(AAPAM) 28TH AAPAM Annual Roundtable Conference, Arusha, Tanzania 4 th - 8th December 200647) Yash Ghai (2007) "Devolution: Restructuring the Kenyan State," Lecture at the African Research and ResourceForum (ARRF) at the Kenya International Conference Center (KICC) Nairobi, 23 November 2007.48) Walter Oyugi (2005) "The Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective," in Kithure Kindiki's & Osogo Ambani's (eds) The A natomy of Bomas: Selected analyses

of the 2004 Draft Constitution of Kenya Claripress Limited, Nairobi49) Dele Olowu (2001) "Decentralization Policies and Practices under Structural Adjustment and Democratization in

Africa," Democracy, Governance and Human Rights Programme Paper Number 4 July 2001; United Nations

Research Institute for Soc ial Development.


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locality, representativeness, governmental character or responsibilities and institutional

autonomy.

Other scholars define devolution with an intention of distinguishing it from federalism. For

example, William Leach (2004) 50) defines devolution as to mean a formal or de facto transfer of

authority or influence from higher levels of government to lower levels or from the public sector

to the private sector. Thus, in this way devolution is distinct from federalism, which describes a

political system having a constitution that assigns different sets of powers to federal and state

governments.

Devolution as contextualized to Kenya's state of affairs has been understood as an agenda to

redesign government where power and resources are shared equitably; often confusingly referred

to as Majimbo or federalism. 51)

1.8.5 Characte ristics of a devolved government

Dr Adams Oloo (2006) 52) gives the following as the core characteristics of a devolved

government:

First, in a devolved government, the local units should have autonomy and independence from

the centre. This includes political autonomy, economical autonomy and functional autonomy.

Second, the units ought to have clear and legally recognized geographical boundaries over which

to exercise authority and perform public functions.

Third, the units should be accorded corporate status and the power to raise sufficient resources to

carry out their functions. Economic independence is a very important aspect of devolution.

Without resources, such a political unit cannot survive and therefore the devolved government

should have ways to raise sufficient resources to carry out its functions.

50) William D. Leach (2004) "Is Devolution Democratic?" ibid.51) Caleb Opon (2007) "Towards an Integrated Decentralization Policy in Kenya," Study to review the policy

framework for Decentralization in Kenya; ActionAid International Kenya (AAIK) consultative meeting onDecentralization Policy52) Oloo A (2006) Devolution and Democratic Governance: Options for Kenya. Nairobi IPAR


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Lastly, the local governments should be perceived by the people as belonging to them.

1.8.6 Devolution versus Majimboism

The devolution debate in Kenya during the constitution making debate was always punctuated

with talks of majimboism. Majimboism is a feared concept in Kenya. Most politicians, church

leaders, activists and even some scholars have continually associated majimboism with

balkanization, ethnicity and disunity. People mistook the term devolution to mean majimboism

forgetting that devolution could be structured and designed in many different ways.

Majimboism is a form of decentralization or regionalism that was entrenched in the Kenyan

Independence Constitution. Debates revolving around majimboism during the constitutionmaking process (1990-2011) shaped the way the Kenyan devolution is structured in the 2010

Constitution.

Majimbo system has been defined as a form of regionalism where the government is structured to

permit the development of indigenous institutions and culture within different regions of the

same unitary state. It is said to involve delegation of political and legislative power to semi-

autonomous, regional or sub-national entities. Legal, political and fiscal powers are also

devolved to the subordinate entity yet at the same time the center maintains control over howthese powers are used. 53)

The majimbo Constitution was the product of the outgoing colonial authorities who believed that

such a Constitution would address some of the teething problems that would confront the

emergent independent state e.g. the land question, the future of immigrant communities and their

vested interest. 54) Also, some observers state that it was the push by the minorities who feared

dominance by the majorities that gave birth to the majimbo Constitution. All in all, the

independence government viewed the majimbo Constitution as an imposed Constitution and

53) Ibid 54) Walter Oyugi (2005) "The Search for an Appropriate Decentralization Design in Kenya: Historical and

Comparative Perspective," in Kithure Kindiki's & Osogo Ambani's (eds) The A natomy of Bomas: Selected analysesof the 2004 Draft Constitution of Kenya Claripress Limited, Nairobi


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worked extremely hard to do away with it within the shortest time possible. The "death" of the

majimbo Constitution came barely a year after independence.

Both majimbo and devolution as entrenched in the 2010 Constitution decentralize power and

resources yet majimbo is still unacceptable to the Kenyan society at the present moment. This

study reviews the history of the majimbo system and brings to an understanding why it is feared.

A comparison of the majimbo structure and devolution structure under the 2010 Constitution is

important to understand why the current devolution is acceptable and to analyze what should be

done to ensure that success is achieved in implementation.

1.8.7. Devolution versus federalism

Federalism refers to a principle of government that defines the relationship between the central

government at the national level and its constituent units at the regional, state, or local levels.

Under this principle of government, power and authority is allocated between the national and

local governmental units, such that each unit is delegated a sphere of power and authority only it

can exercise, while other powers must be shared.

The term federalism is derived from the Latin root foedus , which means "formal agreement or

covenant." It includes the interrelationships between the states as well as between the states andthe federal government. The main distinction between devolution and federalism is that

devolution can be done away with. Federalism is a permanent arrangement that altering is nearly

impossible.

1.8.8. Devolution under the 20 10 Constitution

Devolution as structured under the 2010 Constitution was a delicate balance of different ideas

proposed by Kenyans. There were those who were in support of a devolution similar to the

Majimbo Constitution, others wanted only devolution of resources or what came to be famouslyknown as ugatuzi 55) , while others supported complete or total devolution of political power

characterized by stripping the president of the enormous powers he had and bestowing it on

55) Ugatuzi was a term coined during the 2007 general elections campaigns to refer to decentralization of resources

to regions of the country.


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regional leaders. The Committee of Experts (CoE) had to delicately balance all this in coming up

with a structure acceptable to all. The Committee worked on the structure proposed at Bomas of

Kenya and as contained in the Bomas draft.

The government of Kenya is to have two levels: the national level and county level. Article 6 (1)

of the 2010 Constitution states that the territory of Kenya is to divided into the counties as

specified in the First Schedule. The first schedule lists a total of forty seven (47) counties.

Subsection 2 of article 6 states that the governments at the national and county levels are distinct

and inter-dependent and shall conduct their mutual relations on the basis of consultation and

cooperation.

This study focuses on how the structures and institutions operating in the county government

ensure that public participation and democracy is achieved.

1.9 Conceptual Framework

The keys concepts under study in this research are democracy and public participation. This

section briefly describes these two fundamental concepts.

1.9.1 Democracy

Among the 193 countries worldwide that are recognized by the United Nations (UN), 123 are

said to be democratic. 56) This might be taken to mean that more than half of those States have set

up a form of government that is viewed to be democratic by other states or regimes. 57) Does this

then mean that 70 countries recognized by the United Nations are undemocratic? It should be

noted that a leader of any of these 70 countries would strongly claim that he/she is leading a

democratic government. Then what is democracy?

George Orwell (1957) states that in the case of a word like democracy, not only is there no

agreed definition but the attempt to make one is resisted from all sides & the defenders of any kind of

regime (will) claim that it is democracy & 58)

56) Paula Becker and Dr. Jean-Aim A. Raveloson (2008) "What is Democracy," Friedrich-Ebert-Stiftung (FES) with

the collaboration of Friedel Daiber (University of Trier)


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Afrifa Gitonga (1987) 59) also believes that defining democracy is a hard task. He states that this is

due to the various meanings given to it by regimes around the world. Every regime will try as

much as possible to label itself democratic and non-whatsoever would admit that it isundemocratic. Thus, understanding democracy as a term and concept largely depends on a

regime or government one believes in or is in. But then this would mean democracy has no

generally acceptable definition and that all regimes are democratic. Allowing all definitions to

be right would give rise to a false assumption that as long as a regime claims it is democratic then

it is democratic.

The term "democracy" is literally translated from Greek to mean Government of the People or

Government of the Majority . Thus democracy is generally understood to simply mean "rule by

the people." 60) This understanding was further expanded by Abraham Lincoln who defined

democracy as "the rule of the people, by the people and for the people." This is the generally

acceptable definition of democracy and a regime that satisfies this definition is labeled

democratic.

The following have been identified as being elements of states that are organized under

democratic principles: fundamental freedom and fundamental rights, elections, rule of law,

separation of powers, parliament, democratic pluralism and freedom of the media. 61)

Devolution and democracy

Devolution is very useful for the consolidation of democratic structures. As earlier stated,

citizens become more accessible to the government and their level of participation in governance

increases. It also makes the access of the inhabitants to political decisions much easier. Further, it

increases the inhabitants' motivation to get involved in politics; and this political commitment is

probably greater than in countries with centralized organization.

57) Ibid 58) George Orwell (1957) Selected essays Baltimore p. 14959) Gitonga Afrifa ( 1987), "The Meaning and Foundations of Democracy" in Oyugi W.O. &Gitonga A. ( 1987)Democratic Theory and Practice in Africa Heinemann Kenya.60) Ibid


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Nevertheless, devolution does not mean that the central government is not important. It is exactly

the opposite that is true as the government must show enough political will and commitment to

be able to establish such a change. Devolution is not only an administration restructuring, butalso a political process of transformation. Apart from the administration, these changes affect all

the levels and all the sectors of society.

This is based on the premise that devolved governance provides a structural arrangement and a

level playing field for stakeholders and players to promote peace, democracy, and development.

Many countries are promoting devolution in governance as a measure for democratization,

people empowerment and poverty reduction. 62)

1.9.2. Conceptualizing public participation

In a recently published report, the Kenya Human Rights Commission (KHRC) notes that many

countries that are relatively more advanced and successful in the decentralization process than

Kenya, for instance Britain and China have succeeded in reducing regional inequalities through

better coordination, popular public participation and accountable and responsive governance. 63)

Public participation is thus viewed as an important element for development, improved

governance, and accountability. Further, public participation is said to be a key parameter inenhancing public confidence in governing institutions, formulating state policies based on

people's needs, and receiving necessary feedback on people's reactions to such policies. 64)

1.1.1.1 Defining public participation

61) Paula Becker and Dr. Jean-Aim A. Raveloson (2008) "What is Democracy," Friedrich-Ebert-Stiftung (FES) with

the collaboration of Friedel Daiber (University of Trier)62) John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," DiscussionPaper for Division for Public Administration and Development Management United Nations Department of

Economic and Social Affairs.63) Harmonization of Decentralized Development In Kenya: Towards Alignment, Citizen Engagement And Enhanced

Accountability A Collaborative Joint Research report by the Kenya Human Rights Commission (KHRC)and Socialand Public Accountability Network (SPAN) December 2010.64) John Gaventa and Camilo Valderrama (1999) Participation, Citizenship and Local Governance Background note


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Public participation is a concept that is widely recognized by both international and regional

legal instruments. For example, Article 21 of the United Nations Declaration on Human Rights

(UDHR) recognizes the concept of public participation as democratic participation,' Article 25of the International Covenant on Civil and Political rights provides for every citizen's rights to

take part in the conduct of public affairs and Article 13 (1) of the African Charter also provides

for public participation. 65)

Public Participation became fashionable following the failure of the top-down development

policies of the 1960s and 1970s. All over a sudden it was argued, in the 1980's, that development

could not be realized unless citizens participated in the politics of their countries. Non-

governmental organizations (NGOs) and donors woke up to the fact that their projects often

failed because people were either not consulted or did not participate in the formulation and

implementation of those projects. 66)

The World Bank Learning Group on Participation defines participation as a process through

which stakeholders influence and share control over development initiatives and the decisions

and resources which affect them. 67)

From this perspective, participation could be seen in the level of consultation or decision makingin all phases of a project cycle, from needs assessment, to appraisal, to implementation, to

monitoring and evaluation. While these participation projects could be funded by the state,

participation within them was seen not as related to broader issues of politics or governance, but

as a way of encouraging action outside the public sphere. Moreover, the focus was often on

direct participation of primary stakeholders, rather than indirect participation through elected

representatives. 68)

1.1.1.1 Role of public participation

65) V Hart (2003) Democratic Constitution Making available at http://www.usip.org66) Nyangabyaki Bazaara (2002) Legal and Policy Framework for Citizen Participation in East Africa: A Comparative

Analysis Regional Report Centre for Basic Research 14 th October 200267) World Bank (1995), World Bank Participation Sourcebook, Environment Department Papers Participation Series

Washington D.C. World Bank.68) John Gaventa and Camilo Valderrama (1999) Participation, Citizenship and Local Governance.Op. cite


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The role of public participation in economic and human development is enshrined in Article 7 of

the 1990 African Charter for Popular Participation in Development and Transformation . The

Article states:

"We affirm that nations cannot be built without the popular support and full participation of the

people, nor can the economic crisis be resolved and the human and economic conditions

improved without the full and effective contribution, creativity and popular enthusiasm of the vast

majority of the people. A fter all, it is to the people that the very benefits of development should

and must accrue. We are convinced that neither can A frica's perpetual economic crisis be

overcome, nor can a bright future for A frica and its people see the light of day unless the

structures, pattern and political contest of the process of socio-economic development are

appropriately altered." 69)

1.1.1.1 Modes of public participation

There are various forms or modes of public participation. These include: community-level

involvement in decision-making, opportunity to vote for or against major policy mandates, use of

informal means like the media to influence state policies, and direct representation of citizens in

politics and administration.

Community-level participation basically occurs at the lower level of state power. In Kenya a

good example is the village barazas.

Participation through electoral vote is an indirect way of participation whereby the people elect

representatives to represent them at the decision making level. Whereas these elected persons

might represent the wishes of the people, they might also make decisions for their own personal

benefit.

69) Article 7 of the 1990 African Charter for Popular Participation in Development and Transformation


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Expression of individual opinions through the media is also a way of participation. The only

concern is whether such participation is effective. Can such participation influence decision

making? Further participation through the media is quite fragmented.

Authentic public participation that is, participation that works for all parties and stimulates

interest and investment in both administrators and citizens, requires re-thinking the underlying

roles of, and relationships between administrators and citizens. 70) This study reviews public

participation under the new constitution to determine whether it will be adequate, effective and

efficient and also reviews structures that should be established to ensure that participation is

promoted.

1.10 Methodology

This study mainly employs desk research methodology whereby it analyzes the available

secondary data as found in books, articles, journals, news reports and on the internet.

1.11 Challenges

The major challenge in this study is access to materials that have examined devolution as

entrenched in the 2010 Constitution. Materials that I relied on generally analyzed various aspects

of decentralization. The Kenyan devolution is peculiar in nature and structured in a delicatebalance. Therefore, to understand this kind of devolution, one needs to interrogate literature on

devolution of the Kenyan case.

1.12 Chapter breakdown

This study is broken down in to four chapters.

Chapter One: Introduction and Research Methodology

70) Cheryl Simrell King, Kathryn M. Feltey, Bridget O'Neill Susel (1998) "The Question of Participation: Toward

Authentic Public Participation in Public Administration," Public Administration Review, Vol. 58 , No. 4

http://www.jstor.org/stable/977561


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Chapter one is the Introduction and Research Methodology of the study. The chapter introduces

the study in the form of the background to the problem, research questions, hypotheses, objective,

literature review, theoretical framework and methodology.

Chapter Two: Historical analysis of public participation and democracy in Kenya since

independence

This chapter analyzes the history of public participation in Kenya since independence.

The chapter looks into the Lancaster (Independence) Constitution and whether it provided for

public participation. In reviewing the Lancaster (Independence) Constitution, the chapter

analyzes regionalism or majimboism as was entrenched in the Independence Constitution. The

study reviews public participation in the period between 1963 and 1964 especially involving

events that culminated to the abolition of the majimbo system.

Various attempts by Kenya to decentralize are also reviewed and analyzed in light of whether the

various attempts promoted democracy and public participation in Kenya. The chapter thus looks

into various structures like regional governments at independence, the provincial administration,

the local government and whether public participation existed or was encouraged under these

structures. The chapter further reviews various policy instruments like Sessional Paper No. 10 of

1965 on African Socialism and its Application to Planning in Kenya, 71) the District Focus for

Rural Development, Development Plans of the 70's, 80's and 90's, Constituency Development

Fund (CDF), Local Authority Transfer Fund (LATF) etc.

The chapter concludes by reviewing public participation in the constitution making process. This

section reviews public participation in multi-party Kenya; participation under the Constitution of

Kenya Review Commission (CKRC) and Bomas Process; participation in the 2005 referendum;

and finally, participation under the Committee of Experts (CoE) process, and the August 2010

referendum.

71) Government of Kenya, African Socialism and Its Application to Planning in Kenya, Sessional Paper no. 10 of

1963/65 (Nairobi: Government Printer, 1965)


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Chapter Three: The concept of public participation & governance in a devolved government:

provisions of the 2010 constitution

This chapter discusses the specific provisions of the 2010 Constitution on public participation

and interrogates how such provisions will promote good governance. The interrelationship

between devolution, public participations and governance are looked into in light with the

provisions of the 2010 constitution.

The chapter discusses various aspects of participation. For example, citizen participation in

decision making, resource allocation and governance; and group participation whereby groups

such as the marginalized, the minorities, and gender based groups among others participate in

governance.

Public participation as a concept is dealt with in depth in this chapter.

Chapter Four: Formulating proper legal and institutional framework for public participation in

the devolved Kenya

This chapter gives the proposals and recommendations as to the appropriate legislative and

institutional framework that should be adopted to promote public participation and democracy indevolved Kenya.

Specifically, the chapter proposes factors to consider in formulating legislations and how

institutions should be built and structures established to ensure that participation and democracy

is achieved.

Governance in Devolved Kenya i

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