Governance in Devolved Kenya

8/9/2019 Governance in Devolved Kenya

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GOVERNANCE IN THE DEVOLVEDKENYA:PROSPECTSFORPUBLIC PARTICIPATION ANDDEMOCRACY

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GOVERNANCE IN THE DEVOLVED KENYA

PROSPECTS FOR PUBLIC PARTICIPATION AND DEMOCRACY

Wafula Makokha Timothy

Dissertation submitted to University of Nairobi in partial fulfillment of the degree of Bachelor of Laws

(LL.B)

Supervisor:


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Declaration


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Acknowledgement


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Dedication


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Abbreviations and Acronyms

CIOC &&&&&&&&&&&&&&Constitution Implementation Oversight Committee

CSO &&&&&&&&&&&&&&&.Civil Society Organization

MP &&&&&&&&&&&&&&&.Member of Parliament

CIC &&&&&&&&&&&&&.. &.Commission for the Implementation of the Constitution

CoE &&&&&&&&&&&...............Committee of Experts

KPP &&&&&&&&&&&&&&&Kenya People's Union

IPPG &&&&&&&&&&&&&&.Inter-Parties Parliamentary Group

CKRC &&&&&&&&&&&.... &...Constitution of Kenya Review Commission

DFRD &&&&&&&&&&&&. &..District Focus for Rural Development

UN &&&&&&&&&&&. &. &&..United Nations

KHRC &&&&&&&&&.. &&&.....Kenya Human Rights Commission

UDHR &&&&&&&&&. &&&&.United Nations Declaration on Human Rights

NGO &&&&&&&&&.. &&&. &Non-governmental organization

CDF &&&&&&&&&.. &&&&....Constituency Development Fund

LATF &&&&&&&&&.. &&&&..Local Authority Transfer Fund

NARC &&&&&&. &&&. &&&&National Rainbow Coalition

PNU &&&&&&&&&.. &&&........Party of National Unity

UNDP &&&&&&&&... &&&&...United Nations Development Programme

USAID &&&&&. &&. &&&&. &..U.S. Agency for International Development

KADU &&&&&&&. &&&&&&.Kenya African Democratic Union

KANU &&&&&&&&. &&&&&.Kenya African National Union


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1.12 Chapter breakdown.............................................................................................................................33

CHAPTER TWO: HISTORICAL ANALYSIS OF PUBLIC PARTICIPATION AND DEMOCRACY IN KENYA SINCE

INDEPENDENCE.............................................................................................................................................. 36

2.1 Introduction..........................................................................................................................................36

2.2 The concept of public participation and governance................................................................................ 39

2.2.1 Governance................................................................................................................................... 39

2.2.2 Public participation.........................................................................................................................40

2.3. Status of Public participation in Kenya................................................................................................... 43

2.4. P ublic participation during the pre-independence period........................................................................44

2.5. Regionalism at Independence............................................................................................................... 46

2.6 Decentralization attempts and public participation from 1964................................................................. 51

2.6.1 The Provincial administration.......................................................................................................... 52

2.6.2 Loc al Governments.........................................................................................................................53

2.6.3 The District Focus for Rural Development (DFRD) Strategy................................................................ 55

2.6.4 Constituency Development Fund (CDF)............................................................................................ 58

2.7. Participation in multi-party Kenya......................................................................................................... 59

2.8. Participation in the 2005 and 2010 referenda votes................................................................................61

2.9. Conclusion........................................................................................................................................... 62

CHAPTER THRE E: THE CONCEPT OF PUBLIC PARTICIPATION & GOVERNANCE IN A DEVOLVED GOVERNMENT:

PROVISIONS OF THE 2010 CONSTITUTION........................................................................................................ 63

3.1. Introduction.........................................................................................................................................63

3.2 Concepts of public participation and governance.....................................................................................64

3.2.1 Background....................................................................................................................................64

3.2.2. Definition......................................................................................................................................65


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3.2.3 Political participation......................................................................................................................66

3.2.4 Le vels of public participation...........................................................................................................67

3.2.5. Public participation methods..........................................................................................................73

3.2.6 E ffective public participation...........................................................................................................76

3.2.7 Barriers to effective public participation...........................................................................................78

3.2.8. Governance as a concept............................................................................................................... 80

3.2.9 Participation as a principle of good governance................................................................................ 81

3.3 Public participation under the Constitution of Kenya 2010....................................................................... 82

3.3.1. Public participation as a national value and principle of governance..................................................83

3.3.2. Public participation in the m anagement and maintenance of the environment..................................86

3.3.3 Public participation in political processes......................................................................................... 87

Freedom of expression............................................................................................................................89

Right to access information..................................................................................................................... 90

3.3.4 Participation in policy and decision making...................................................................................... 90

3.4. P ublic participation in the devolved government....................................................................................92

3.4.1 How devolution is likely to pr omote participation.............................................................................93

3.5 Participation by the m arginalized and minorities..................................................................................... 94

3.6 Enforcement of participation................................................................................................................. 95

3.7. Conclusion........................................................................................................................................... 96

CHAPTER FOUR: FORMULATING PROPER LEGAL AND INSTITUTIONAL FRAMEWORK FOR PUBLIC PARTICIPATION IN

THE DEVOLVED KENYA.................................................................................................................................... 97

4.1. Introduction.........................................................................................................................................97

4.2. Issues to consider in formulating the proper legislative and institutional framework for participation........ 98

4.3. Legal and institutional framework: key propositions............................................................................. 102


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4.4. Recommendations of the study...........................................................................................................106

BIBLIOGRAPHY............................................................................................................................................. 109

Abbreviations and Acronyms

CIOC &&&&&&&&&&&&&&Constitution Implementation Oversight Committee

CSO &&&&&&&&&&&&&&&.Civil Society Organization

MP &&&&&&&&&&&&&&..Member of Parliament

CIC &&&&&&&&&&&&&.. &.Commission for the Implementation of the Constitution

CoE &&&&&&&&&&&...............Committee of Experts

KPP &&&&&&&&&&&&&&&Kenya People's Union

IPPG &&&&&&&&&&&&&&.Inter-Parties Parliamentary Group

CKRC &&&&&&&&&&&.... &...Constitution of Kenya Review Commission

DFRD &&&&&&&&&&&&. &..District Focus for Rural Development

UN &&&&&&&&&&&. &. &&..United Nations

KHRC &&&&&&&&&.. &&&.....Kenya Human Rights Commission

UDHR &&&&&&&&&. &&&&.United Nations Declaration on Human Rights

NGO &&&&&&&&&.. &&&. &Non-governmental organization

CDF &&&&&&&&&.. &&&&....Constituency Development Fund

LATF &&&&&&&&&.. &&&&..Local Authority Transfer Fund

NARC &&&&&&. &&&. &&&&National Rainbow Coalition

PNU &&&&&&&&&.. &&&........Party of National Unity

UNDP &&&&&&&&... &&&&...United Nations Development Programme

USAID &&&&&. &&. &&&&. &..U.S. Agency for International Development

KADU &&&&&&&. &&&&&&.Kenya African Democratic Union


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KANU &&&&&&&&. &&&&&.Kenya African National Union

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 19922) 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 who

demanded democracy.


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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 institutions4) 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.

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

Review Process, even to the extent of refusing to present his views to CK RC even after a date had been set for him

to give his views. It therefore came as no surprise when he dissolved parliament at the same t ime that the N ational

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 at

http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=20&Itemid=27 (lastaccessed 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 Nairobi city 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 to

enact within a period of five years.


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The 2010 Constitution introduces many and far reaching changes in Kenya. This is evidenced by

the 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.

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 will

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

devolved government structure?

8)Article 174 (a) Constitution of Kenya 2010.

9)Article 174 (c) Constitution of Kenya 2010


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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

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.

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

and American Constitutionalism," Law 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 M odern A frican Studies,Vol. 27, No. 2, at p. 275.

15)P. Anyang'Nyong'o(1989) "State and society in Kenya: The disintegration of the nationalist coalitions and the rise

of presidential authoritarianism,"A frican Af fairs,London,Vol. 88 No. 351.16)Barazaswere informal meeting convened by officials of the provincial administration at the lower level especially

the 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.

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 Kenyatta

and Moi regimes had to be very loyal to the president in order to continue serving. Therefore, their decisions had to


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the Committee of Experts23) (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 the

signing 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

constitution for Kenya. The CKRC team collected views from across the country and then called

a National Constitutional Conference at Bomas of Kenya. President Moi, who had refused to

give his views to the CKRC team, purportedly disbanded it before the 2002 general elections. He

further frustrated the process when he dissolved parliament just before the National

Constitutional Conference kicked off. Parliamentarians were to form part of the delegates at the

conference. When president Kibaki took over power in 2003, he commissioned the CKRC to

continue with the National Constitutional Conference. The Conference was turbulent and

characterized by lack of consensus, claims of sabotage and even at some point walk-outs 25) by a

section of delegates. Moris Odhiambo (2004) writes:

"Though the National Constitutional Conference (NCC) continued its sittings during the f irst

three months of 2004 at the Bomas of Kenya (what was referred to as "Bomas III" in subsequence

to two earlier sittings), prospects for Kenyans enacting a new constitution arguably became

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

stalemate in Kenya following the disputed2007 General Election.

24)The repealing was effected by the Constitution of Kenya Amendment Act.No. 12 of 1991

25)On 16th March, 2004 a number of MPs and ministers, led by then Justice and Constitutional Affairs minister

Kiraitu Murungi, engineered a walkout from Bomas of Kenya. See News from Africa at

http://www.newsfromafrica.org/newsfromafrica/articles/art_8160.html(last accessed on July 12, 2011)


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dimmer on a backdrop of political squabbling and an elusive search for consensus on major

issues."26)

Despite all the challenges, CKRC succeeded in preparing a draft Constitution, famously known

as the Bomas Draft, which appeared to enjoy support from a majority of Kenyans. The Bomas

draft was subjected to changes by the then Attorney General Amos Wako at Kilifi. The changed

draft, popularly known as the "Wako draft" or "Kilifi draft", was then rejected in the 2005

referendum. The changes by Attorney General Amos Wako to the Bomas Draft are said to have

greatly contributed to the rejection of the Proposed Constitution at the 2005 referendum. The

Constitution making process was re-initiated in 2008 after the post-election violence that

followed the disputed 2007 general elections. This study reviews the constitution making

process especially the element of public participation in the two-decade long process.

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 national

government 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

26)Morris Odhiambo (2004) "Constitutionalism under A Reformist' Regime in Kenya: One Step Forward, Two

Steps Backwards?" in Lawrence M. Mute (2004) (ed)Constitutionalism in East A frica Progress, Challenges and

Prospects in 2004Kituo cha Katiba, Kampala & Fountain Publishers, Kampala


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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.

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 tudy

A 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.


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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 so

as 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 and

national 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

to be in support of devolution, disagreements arose as regarding the structure or design of

devolution to be adapted. Those who proposed the majimbosystem as was at independence to be

reintroduced were met with fierce resistance by others who believed a majimbo system or a

federal system was a recipe for disunity and a catalyst for tribal conflict and violence. 27) One

remote reason why devolution was highly contentious although desired by a majority was that it

was closely connected to presidential power politics. Devolution meant that the powers of the

president would be greatly reduced. Therefore, close cronies to the president opposed a

devolution structure that they saw was directed at weakening the presidency. This study thus

analyzes all the historical perspectives, intrigues, and debates to help the policy makers come up

with the best approach in implementing the chapter on devolution. This is to ensure its

implementation is not sabotaged by those who had contrary ideas as to the structure of

devolution.

27)See church leaders' comments on the subject. For example, John Cardinal Njue, Bishop Dr. David Gitari among

others.


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It is important that devolution does not sow seeds of negative ethnicity, cause ethnic strife, and

create inequality and regional polarization. Thus a historical consideration of the politics is

important in implementation to ensure unity is achieved and maintained.

1.6 Hypothesis

This dissertation tests the following hypotheses:

a) That devolution ensures public participation in the affairs of the government thus

ensuring improved governance and accountability.

b) That exercise of power is more democratic in a devolved system of government than a

unitary or centralized system of government.

1.7 Literature Review

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 Future28)

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 themajimbosystem and the current local government system.

28)Albert K. Mwenda (eds) (2010)Dev olution in Kenya: Prospects, Challenges and the FutureInstitute of Economic

Affairs Research Paper Series No. 24, Nairobi.


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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 Oyugi29):

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

Comparative Perspectiveanalyses devolution as was proposed by the "Bomas Draft30)." Although

his chapter focuses on the Bomas Draft, it is relevant and authoritative. This study benefits from

Oyugi's historical analysis of decentralization to provide a clearer perspective on the historybehind 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.

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 analyses

of 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.


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Walter Oyugi's discussion on the independence Constitution ormajimboConstitution 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

majimbosystem 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 Ghai31):

Yash Ghai in "Devolution: Restructuring the Kenyan State," seeks to dispel the falsehood that

was being circulated regardingmajimboism and devolution during the 2007 general elections

campaigns. Prof. Ghai's lecture is candid in that he raises issues with those he perceive as

peddling lies especially a fraction of church leaders, politicians and even a few scholars.32)

Further, it came at the height of the 2007 general elections campaigns.

Prof. Ghai, who was the chair of the Constitution of Kenya Review Commission (CKRC),

believes that the Bomas Draft had struck a reasonable balance between a federal and a purely

local government system and that it was the best mode of devolution that should have been

adopted by Kenya.

His idea of devolution is that it should start from the village or grassroots level. This he says

would increase participation of citizens in governance and their involvement in decision making.

31)Yash Ghai (2007) "Devolution: Restructuring the Kenyan State," Lecture at the African Research and Resource

Forum (ARRF) at the Kenya International ConferenceCenter (KICC) Nairobi, 23 November 2007

32)He particularly singles out Prof. Makau Mutua, John Cardinal Njue, and Bishop David Gitari


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Prof. Ghai's article also brings out an insightful analysis of Devolution and majimboism.

Although his point of reference was the Bomas draft, it is still very helpful and informative.

d) The Parliamentary Human Rights: Handbook on Devolution & Fiscal

Decentralization:

TheParliamentary Human Rights: Handbook on Devolution & Fiscal Decentralization33)is also

important in this study. Part One by Victor Odhiambo is entitled Legal Framework for

Devolution. The author looks at many interrelated aspects of devolution. He defines devolution,

looks at it as a limb of decentralization, analyzes its link to democracy and good governance,

looks at its relationship to elections and representation, points out its relationship to economic,

social and cultural rights and then goes further to give a brief analysis of devolution in Africa. Of

great importance to this study is the author's analysis on the link between devolution and

democracy. The author argues that devolution or decentralization provides a structured

arrangement for democratic government to be planned and executed at the community level. He

is also of the opinion that devolution enhances the concept of participatory governance.

Although, the publication is a handbook, the author's analysis on devolution is current and up to

date. That the analysis of devolution in the handbook is on the Constitution of Kenya 2010makes it more authoritative and useful when it comes to this study. The other literatures on

devolution discuss the topic in different contexts, as practiced in different jurisdictions, or

provide hypothetical discussions of possible scenarios, but the handbook analyses what is

contained in the Constitution of Kenya 2010 regarding devolution.

1.8 Theoretical Framework

1.8.1 The Concept and theo ry of Devolution

This study is premised on the basis that devolution of government is an appropriate ingredient for

citizen participation in governance.

33)Parliamentary Human Rights: Handbook on Devolution & Fiscal Decentralization Kenya section of the

International Commission of Jurists (ICJ Kenya), 2010.


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Devolution as a concept and theory has been subjected to various definitions by different

scholars. The variation in definitions can be attributed to the existence of different natures or

kinds or systems of devolution. Most devolved governments are structured differently hence

differing descriptions attributed to them. Sometimes the term devolution is used interchangeably

with decentralization although the terms are notper sesynonymous. In order for one to come to a

proper definition of devolution, it is imperative that one understands the term decentralization.

1.8.2 Defining decentralization

Decentralization is the transfer of powers from the central government to lower levels in a

political, administrative and territorial hierarchy.34) As such, in a decentralized system of

government power is transferred from the center usually the central or national government to the

regions or sub-national governments. The way in which such power is transferred differs. In one

form of decentralization power is transferred completely such that the regional governments

acquire power, in other forms of decentralization power is merely delegated with the central

government retaining control.

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 or

special-purpose authorities.35)

1.8.3 Dimension s of decen tralization

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

decentralization.

34)See Elizabeth Linda Yuliani (2004) "Decentralization, Deconcentration and Devolution: what do they

mean?"Compilation of definitions used in papers presented at the Interlaken Workshop on Decentralization, 27-30

April 2004, Interlaken,Switzerland

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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a) Administrative decentralizationis the transfer of responsibility for the planning, financing

and management of certain functions from the central government and its agencies to

field 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 political

decentralization is to promote greater citizen participation and higher levels of

accountability to citizens.37)

c) Fiscal decentralizationis 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)

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

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

36)Oloo A (2006) Devolution and Democratic Governance: Options for Kenya. Nairobi IPAR.

37)Ibid.

38)Ibid.

39)See John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," Discussion

Paper for Division for Public Administration and Development Management United Nations Department of


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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

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 asMajimboor federalism.51)

46)

John W. Forje (2006) "Rethinking Decentralization and Devolution of Power within the African Context:Challenges and Opportunities," paper presented to African Association for Public Administration and Management

(AAPAM) 28TH AAPAM Annual Roundtable Conference, Arusha, Tanzania 4th - 8th December 2006.

47)Supra note 31.

48)Supra note 29.

49) Supra note35.

50)Supra note 45.


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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.

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 ofmajimboism. Majimboism is a feared concept in Kenya. Most politicians, churchleaders, 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 constitution

making process (1990-2011) shaped the way the Kenyan devolution is structured in the 2010

Constitution.

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 on

Decentralization Policy.

52)Supra note 36.


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Majimbosystem 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 how

these powers are used.53)

ThemajimboConstitution 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

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

majimboConstitution came barely a year after independence.

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

resources yetmajimbois still unacceptable to the Kenyan society at the present moment. This

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

A comparison of themajimbostructure 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

53)Ibid

54)Supra note 29.


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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 and

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

MajimboConstitution, others wanted only devolution of resources or what came to be famously

known as ugatuzi55), 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

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.

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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The term "democracy" is literally translated from Greek to meanGovernment 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.

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, but

also 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.

60)Ibid

61)Supra note 56.


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

people empowerment and poverty reduction.62)

1.9.2. Conce ptualizing 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

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 25

of 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)

62)Supra note 39.

63)

Harmonization of Decentraliz ed Development In Kenya: Towards A lignment, Citizen Engagement A nd EnhancedA ccountabilityA Collaborative Joint Research report by the Kenya Human Rights Commission (KHRC) and Social

and Public AccountabilityNetwork (SPAN) December 2010.

64)John Gaventa and Camilo Valderrama (1999)Participation, Citizenship and Local GovernanceBackground note

prepared for workshop on strengthening participation in local governanceInstitute of Development Studies, June 21

-24, 1999.

65)V Hart (2003)Democratic Constitution Makingavailable ath ttp://www.usip.org


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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 making

in 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

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

66)Nyangabyaki Bazaara (2002) Legal and Policy Framework for Citizen Participation in East A frica: A

Comparative A nalysis Regional Report Centre for Basic Research 14th October 2002

67)World Bank (1995),World Bank Participation Sourcebook,Environment Department Papers Participation Series

Washington D.C. World Bank.

68)Supra note 64.


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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 beovercome, 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 villagebarazas.

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 personalbenefit.

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

69)Article7 of the 1990African Charter for Popular Participation in Development and Transformation

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

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


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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 delicate

balance. 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

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 ormajimboismas was entrenched in the Independence Constitution. Thehttp://www.jstor.org/stable/977561


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

events that culminated to the abolition of themajimbosystem.

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.

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

71)Government of Kenya,A frican Socialism and Its A pplication to Planning in Kenya,Sessional Paper no. 10 of

1963/65 (Nairobi: Government Printer, 1965)


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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 in

devolved 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.


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CHAPTER TWO: HISTORICAL ANALYSIS OF PUBLIC

PARTICIPATION AND DEMOCRACY IN KENYA SINCE

INDEPENDENCE

2.1 Introduction

Devolution as a system of government has been adopted in Kenya by the Constitution 2010.72)

Once the 2010 Constitution is fully implemented, Kenya will have a two-tier government

comprising of the national government and the county governments.

Two important reasons are advanced as to why devolution as a system of government is a

preferred model. First, devolution is viewed as a means of enacting self-governance, and an

efficient and effective system of government responsive to the needs of the local communities.

Second, devolution is considered a means of democratizing governance and accommodating

diverse ethnic, linguistic and religious identities. This leads to the prospect of self-rule, public

participation, accountability, good governance and equitable development.73)

In Kenya, the calls for a new constitution were initiated due to the perceived failure of the

existing highly centralized system of government to promote democratic governance,

accountability and citizen participation in governance. In demanding a new constitution, activists

in essence wanted new laws that would put in place a new system of government in Kenya most

preferably a decentralized system of government. Yash Ghai (2007) notes that in Bomas the

demand for devolution was for positive reasons which included: as a way of strengthening

national unity through the device of power sharing; creating more centres of decision making and

72)Chapter 11 of the 2010 Constitution is on devolved governments. It creates autonomous county governments that

will exist on the basis of mutual co-operation with the central government.

73)Dan Juma "Devolution of power as constitutionalism: The constitutional debate and beyond," International

Commission of Jurist s (Kenya-Section) and Konrad Adenauer S tiftung available at

http://ssrn.com/abstract=1382821 (last accessed on July 19, 2011)


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development (arresting the deepening poverty in many parts of the country and the migration to

urban centres); promoting local cultures and institutions, and above all, increasing people's

participation in public affairs and ensuring greater responsiveness and accountability to local

communities.74)

Eventually a new Constitution was ratified75) on August 4, 2010 by Kenyans and subsequently

promulgated on August 27, 2010 by His Excellency (H.E.) the President of the Republic of

Kenya, Mwai Kibaki.76) A notable feature of this new Constitution is that it introduces a devolved

system of government for Kenya. This is a system that Kenyans desired throughout the

Constitution making process although there were disagreements over its structure and design.

Devolution as entrenched in the 2010 Constitution is expected to achieve the following key

objectives: to promote democratic and accountable exercise of power; to foster national unity by

recognizing diversity; 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; to recognize the right of communities to manage their own affairs and to further

their development; to protect and promote the interests and rights of minorities and marginalized

communities; to promote social and economic development and the provision of proximate,

easily accessible services throughout Kenya; to ensure equitable sharing of national and local

resources throughout Kenya; to facilitate the decentralization of State organs, their functions and

services, from the capital of Kenya; and to enhance checks and balances and the separation of

powers.77)

74)Yash Ghai (2007)"Devolution: Restructuring the Kenyan State,"Lecture at the African Research and Resource

Forum (ARRF) at the Kenya International ConferenceCenter (KICC) Nairobi, 23 November 2007.75)Over 67% of voters representing 6,092,59 of Kenyans voted for the new Constitution. 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 April 20, 2011).

76)President Mwai Kibaki is the third president of the republic of Kenya having been elected in the December 2002

general elections on a National Rainbow Coalition (NARC) ticket and re-elected in the controversial December 27,

2007 general elections on a Party of National Unity (PNU) ticket.


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2.2 The concept of public participation and governance

"Underlying the litany of Africa'sdevelopment problems is a crisis of governance &by governance

is meant the exercise of political power to manage a nation's affairs. Because countervailing

power has been lacking, state off icials in many countries have served their own interests without

fear of being called to account &the leadership assumes broad discretionary authority and loses its

legitimacy. Information is controlled and voluntary associations are co-opted or disbanded."80)

2.2.1 Governance

Governance has been defined as the exercise of political authority and the use of institutional

resources to manage society's problems and affairs.81) It is also defined as the use of institutions

or structures of authority and evencollaborationto allocateresourcesand coordinate or control

activity in society or the economy.82)

Governance plays a crucial role in the development of a nation. The World Bank notes that good

governance pays a very large development dividend and that an improvement in governance of

one standard deviation can triple a nation's per capita income in the long run. Higher income also

correlates with better governance, but the causal relationship is mostly from governance to

income. 83)

The World Bank gives three aggregate indicators that capture the political, economic, and

institutional dimensions of governance. First, voice and accountability which connotes the extent

to which a country's citizens are able to participate in selecting their government, as well as

freedom of expression, freedom of association, and a free media. Second, political stability and

absence of violence which include perceptions of the likelihood that the government will be

destabilized or overthrown by unconstitutional or violent means, including domestic violence

80)World Bank Report (2006) "A Decade of Measuring the Quality of Governance: Governance Matters 2006

Worldwide Governance Indicators."

81)Ibid.

82)Bell, Stephen (2002)"Economic Governance and Institutional Dynamics,"Oxford University Press, Melbourne,

Australia.

83)Supra note 80.


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and terrorism. Third, government effectiveness, that is, the quality of public services, the quality

of the civil service and the degree of its independence from political pressures, the quality of

policy formulation and implementation, and the credibility of the government's commitment to

such policies.84)

2.2.2 Public participation

Public participation on the other hand is defined by the World Bank Learning Group on

Participation as a process through which stakeholders influence and share control over

development initiatives and the decisions and resources which affect them.85) The United Nations

Development Programme (UNDP) gives requirements of what should happen to constitute

participation. UNDP requires that participants must have "constant access to decision-making

and power" for them to be said to have participated.86)

The underlying principle of public participation stems from the fact that the modern state is an

evolved state. Citizens of this modern state have two important expectations of their state. Firstly,

the state is expected to be democratic and one that upholds democratic principles. Democracy

entails the participation of the citizens in the political process of the country. Secondly, the state

is expected to be one that is responsive to the need of its subjects. This will only be achieved if

such a state allows participation of the public in decision making. This is for obvious reason; I

will respond to my needs if I am allowed to participate in decision making affecting me. 87)

The concept of public participation seeks and facilitates the involvement of those potentially

affected by or interested in a decision. The principle of public participation holds that those who

are affected by a decision have a right to be involved in the decision-making process. Public

participation implies that the public's contribution will influence the decision. Thus, for

participation to be meaningful and to meet the threshold set for the concept of public

84)Ibid.

85)World Bank (1995)World Bank Participation Sourcebook,Environment Department Papers Participation Series,

Washington D.C.

86)Ibid.

87)Ibid.


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participation, it needs to be effective and not just mere ceremonial and technical involvement of

the people.

Democracy and public participation are closely interconnected concepts. Both are concepts of

participation. With democracy comes the right to vote and participate in the election of

representatives of the people. With public participation comes the right to participate in the

decision making of the government and its institutions.

Societies perceived to be democratic incorporate public participation rights into their laws. For

example, in the United States (US) the right to petition has been part of the first Amendment of

theConstitutionsince 1791.88)

Laws on public participation often deal with such issues like the right to know, access to

information andfreedom of information.89)The right to participation may also be advanced in the

context ofequalityandgroup rights, meant to ensure equal and full participation of a designated

group in society, for example, the disabled, the youth, marginalized communities etc. 90)

Access to information is a core element of participation. In a highly centralized system of

government access to information is constrained. This may be due to the following three reasons:

first, centralized systems have highly developed bureaucracies that are almost impenetrable to an

outsider; second, transmission of information in this bureaucratic system is always slow and at

times ineffective; and third, the decision makers are at a centralized place inaccessible to persons

in villages and at the grassroots.

A devolved system of government where there is devolution of the responsibility for

development planning, administration, and governance is considered essential for increasing

citizen participation. Such a system is a useful means for diversifying power centers, increasing

popular participation in local decision making, and improving service delivery, particularly to

outlying areas.91)As analysts within the U.S. Agency for International Development (USAID)

88)Ibid.

89)Ibid.


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have argued:

"Increased popular participation, to be sustained and effective, requires the mobilization of local

actors and the institutionalization of their activities. Decentralization is necessary to increase the

scope of decisions, and thus incentives available to participants, as well as to build institutions to

encourage, structure, focus and stabilize such participation."

Dele Olowu (2001) contends that the primary consideration of devolution is political-popular

participation and empowerment.92) Further, other advocates of decentralization also contend that

decentralization and widespread participation can offset the dominant influences or control over

development decision-making of local elites, who are often unsympathetic to national policies,

and insensitive to the needs of local residents, especially the poorest groups in rural areas. The

underlying assumption is that the process of decentralization facilitates greater participation of

communities in project identification, planning and implementation, which in turn increases

ownership, vigilance, accountability and the likelihood of sustainability.93)

With increased public participation governance improves. The reason being that leaders and

decision makers are constantly under the surveillance and scrutiny of the public and will thus

tend to govern in a manner that is consistent with the wishes of the public.

90)Ibid.

91)Ensuring an Effectiv e Dev olution of Power: A Comparative Case Study a Legal Memorandum by Public

InternationalLaw & Policy Group & Harvard University Law and InternationalDevelopment Society (2010).92)See Dele Olowu (2001) "Decentralization Policies and Practices under Structural Adjustment and

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

United Nations Research Institute for Social Development.

93)John-Mary Kauzya (2005) "Decentralization: Prospects for Peace, Democracy and Development," Discussion

Paper for Division for Public Administration and Development Management United Nations Department of

Economic and Social Affairs.


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2.3. Status of Public participation in Kenya

The concepts of public participation and democracy suffered during the highly centralized

system of government in Kenya from1964. Elected leaders and public officials made decisions,

formulated policies, implemented programmes and utilized public resources without effectively

involving the public. The centralization of authority was also a recipe for unaccountability,

corruption, mismanagement and misappropriation of resources. Maddick (1963) notes that over-

concentration of administrative authority stifles development, leads to waste and corruption,

delays action, and creates irrational and inefficient management practices, the costs of which

developing countries cannot afford.94)This overconcentration of authority had great negative

consequences to the state of public participation in Kenya. Centralization of authoritycharacterized with a powerful presidency was born with abolition of regional governments in

1964.95)

Noting that the highly centralized system was undermining public participation, various attempts

were made to decentralize governance. For example, the creation of local governments, the use

of the provincial administration and the crafting of various policies and strategies like the District

Focus for Rural Development (DFRD). These attempts only ended up strengthening central grip

on the local units.

Participation in the political process has existed since independence. Since 1963, the public has

been voting in elections in order to elect their representatives. Was this kind of participation

effective? Were elections upholding democratic principles? This and interrelated questions on

participation in political processes are reviewed in this chapter.

This study now embarks on reviewing the status of public participation in Kenya since

independence.

2.4. Public participation during the pre-indepe ndence period

94)Henry Maddick (1963)Democracy Decentralization and D

Governance in Devolved Kenya

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