The promise and the risks of devolution

The costs attributed to devolution are not new costs: we already have budgets for districts and for county councils

One of the key reforms of the Constitution is the establishment of devolution through county governments. Primarily, it is a response to the enormous centralisation of state power at the centre and in the presidency, accentuated by the attrition of local government.

For many people, the main contact with government has been with Provincial and District Commissioners and Chiefs, ultimately responsible to the President. On a more political level, the centralisation of power, generally exercised by a small coterie of people around the President, marginalised communities and regions that were perceived to be opposed to the regime.

Economically, enterprises and employment tended to concentrate in Nairobi, and led to migration from rural to urban areas.
For an understanding of the reasons for devolution, one cannot do better than read Article 174.

They include democratisation, accountability, increased checks and balances, national unity, recognising diversity and protecting minorities, economic development and access to services, and equitable sharing of national and local resources.

This is an ambitious agenda, carried over from the CKRC and Bomas drafts, but without the same institutional arrangements and devolved powers.
However, some of these goals can be achieved even within this more restricted framework if the right decisions are made about the structuring of counties and their relationship with the national government.

Devolution is partly a matter of law and partly of conventions and practice. It will come into effect only after the next General Elections, when the county assemblies and governors will be elected.

The complete implementation will take place gradually, but it is expected that devolution will be fully operational after five years.
As the system is new and we do have some time to work out the detailed legislative and administrative arrangements, it is critical that these are designed to achieve stipulated objectives.

There is enough flexibility as to the evolution and operation of the system. Powers and money will be transferred only when the capacity to handle them has been established in the county.

County governments could agree that the national government should do certain things for them, or the national government could agree that the counties, or those of them with the capacity, should take over certain national government functions.

Phased in gradually

Laws can be made to give new powers to the counties. The system is to be phased in so that functions are transferred gradually to counties that can handle them, and not all counties need get all the powers at the same time.

Although the national government can make laws about everything, including topics on which counties may make laws, national government law will take precedence only if there is good reason for having national rather than county laws.

Flexibility is undoubtedly a good thing, but it requires complex systems of negotiation and decision making.

The constitution recognizes this and provides for co-operation between the national and county governments, with a critical role for the Senate as a sort of negotiating forum at the same time as it protects the interests of counties.

There are also mechanisms for ensuring that counties observe the rights of all the residents and carry out administration consistent with the values of devolution.

On the other hand, it is important that the national government realises that devolution is an essential component of the new system of the state — and counties have constitutionally guaranteed status and powers — and resist the temptation to dictate to them.

Despite this positive framework, there are serious anxieties about devolution. Paradoxically, some are worried about too much powers being handed over to counties, others (like us) that too little power is guaranteed.

But we have noted above the flexibility in this regard. Some fear discrimination against minorities within the counties, and the tendency of the dominant ethnic group to appropriate all county offices and resources.