Constitution has changed Kenya, but some are still asleep

Friday January 2 2015

Council of Governors chairman Mr Peter Munya is taken through the new trauma and ICU centre at Meru Teaching and Referral Hospital.  Mr Munya has said the current free maternity service subsidy leaves a bigger burden to county governments.  FILE PHOTO | KENNEDY KIMANTHI |

Council of Governors chairman Mr Peter Munya is taken through the new trauma and ICU centre at Meru Teaching and Referral Hospital. Mr Munya has said the current free maternity service subsidy leaves a bigger burden to county governments. FILE PHOTO | KENNEDY KIMANTHI | NATION MEDIA GROUP

By DAVID NDII
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“One of the great liabilities of history is that all too many people fail to remain awake through great periods of social change. Every society has its protectors of status quo and its fraternities of the indifferent who are notorious for sleeping through revolutions. Today, our very survival depends on our ability to stay awake, to adjust to new ideas, to remain vigilant and face the challenge of change.”

Martin Luther King Jr.

I spent the better part of the year following the enactment of the new Constitution in workshops and seminars explaining its economic and public finance dimensions.

Several of these were to members of parliament.

In one of many memorable encounters, I completed my exposition and the chairman of the session, who was also a chairman of one of the “money committees” of parliament (money committees are those that deal with public finances notably Public Accounts, Public Investment, Budget, Estimates among others), opened the discussion as follows.

He started by asserting that many people were under the mistaken impression that the Constitution granted the counties complete budgetary autonomy, that they would be able to budget their money without any reference to the national government, a blank cheque so to speak.

He went on to explain that such misinformation was very dangerous as it would create unrealistic expectation that would not augur well for the Constitution when it became evident that this is not so.

When he was done, I calmly explained to him that those people were not mistaken. The counties would indeed have more or less complete autonomy over their budgets. They would be free to allocate 20 percent to agriculture and 40 percent to health or vice versa.

I explained that the national government, and in effect Parliament, would no longer be able to determine how much money goes to what sector, indeed even to know the amount would require tallying up all the county government budgets.

When I was done, the gentleman was visibly perplexed and disturbed. It was not that he disagreed with the changes, he was very much for devolution.

His consternation derived from the fact that such radical changes had been contemplated. It was fear of the unknown.

In another encounter, a senior official in the Housing ministry sought my opinion on the role of their ministry in the new dispensation.

I opined that the ministry was unlikely to continue to exist, given that the housing function was fully devolved and the Constitution limited the number of ministries to 22.

I also pointed out that housing was unlikely to be a priority in all but the three city counties since in the rest of them, over 95 percent of the population lived in their rural homesteads, outside the purview of housing policy, services and markets.

Evidently, this had not crossed their minds. As soon as the penny dropped, they began railing at the Constitution. They had slept through the revolution.

The Constitution is usually described as radical, one of the most progressive in the world, but somehow many people expect it not to rattle things too much, and most of us seem to want to see only change we agree with.

There are still a whole lot of us who need to come to terms with change. It’s here and it is irreversible.

When thinking about writing new laws, lawyers ask the following question. What mischief is the new law to cure? In my expositions, I enumerate three mischiefs that we have set out to cure with the Constitution.

These are the imperial presidency, distributional grievances and accountability failure.

I need not, I think, elaborate on the nature of these beasts. We can proceed to examine how the Constitution sets out to slay them, and what change this portends.

The imperial presidency: We addressed this by taking the powers hitherto enjoyed and abused by the president and slicing it up 48 times.

By my reckoning, between devolution and the Bill of Rights, we have reduced the president’s power by between 80 and 90 percent.

Beyond that, the Constitution also changes the nature of presidency from one that exercises power through authority, to one expected to exercise it through influence.

Previous presidents could issue virtually any order they wanted, which the provincial administration would enforce promptly anywhere in the country.

Today, if prezzo wants something to happen anywhere outside State House, he needs to persuade a lot of people.

This paradigm shift does not seem to have registered in the Jubilee administration.

President Uhuru Kenyatta and his deputy William Ruto continue to pronounce edicts ad infinitum. They do not seem to notice that most of the time, nothing happens. They slept through the revolution.

Distributional grievances: Now that devolution has unfolded, most people have an idea how the Constitution responds to distributional grievances.

One of the most radical innovations in the Constitution in my view is the transformation of the budget process, from a sector-spatial to spatial-sector process. What do I mean by this?

In the old system, the budget process began with determining sectoral priorities at the national level i.e. WHAT money would be spent on.

Technocrats and NGO wallahs would sit in endless workshops discussing whether food was more important than water.

But WHERE the money would be spent was left to discretion of ministers and bureaucrats. From there it would be a game of scratch my back I scratch yours — I give you a water project, you give me a road.

In the new system, the process is reversed. We first determine where the money will be spent. The residents of that place determine what the money will be spent on.

This makes resource allocation more transparent, comprehensible and amenable to public participation.

The old budgets expressed as they were in tens or hundreds of billions of shillings for this or that sector were not something that most of us could relate to. Is Sh30 billion for agriculture and Sh40 billion for health a good thing or would it be better the other way round?

One of the remarkable things is that once the distribution became transparent, the outcome itself seems to have become a non-issue.

Last financial year for instance, Isiolo got Sh15,600 per person, Turkana got Sh9,300 per person while Kiambu got only Sh3,300 per person. But every county seemed more or less content with their allocation.

This would seem to suggest the Constitution may have slayed one of the biggest political beasts in Kenya, the political mobilisation of distributional grievances.

It will be interesting to see how future tribal barons with presidential ambitions will mobilise their tribal bases as it dawns on more and more Kenyans that the President is no longer the fellow who wields the knife that divides the national cake.

Accountability failure: The unbridled rapaciousness of the Jubilee administration, spendthrift county assemblies and not a few sticky fingered governors, accountability is the domain where the Constitution has generated most doubt and disillusionment.

Yet this is where the Constitution is probably having the most impact. Two anecdotes will illustrate.

First example. I recently visited a scientist at the Department of Veterinary Services commonly known as Vetlabs.

We talked a little bit about the impact of devolution on the department.

The man gleefully looked out to the parking lot and explained that had I visited before the last election, it would have been full of expensive dark windowed SUVs — “tenderpreneurs.”

Once the national veterinary procurement budget was devolved, they vanished. We wondered where they’d gone as the county budgets would be probably too small to be worth their while.

Second example. Last year, I came across a procurement notice by Garissa County for construction of 21 maternity units.

Twenty-one maternity units in one year? My first reaction was that the county government was totally out of its mind.

But as I read it, I noticed two things. First, each unit was required to have only six beds.

Secondly, each was a separate tender, and the notice specified the location of each facility— Danyere, Jarajara, Saka, Bulla Mzuri and so on.

A six-bed maternity unit could not possible cost more than Sh5 million to build. There is a limit to how much can be “eaten” from a Sh5 million project.

Secondly, the fact that the locations were specified indicated that the beneficiaries were informed that they were entitled to a maternity unit.

What if this had been a national project? It would have been a Sh3 billion, five-year donor funded National Maternal Health Improvement Project to build 100 maternity units.

Each unit would have been budgeted at Sh20 million, the rest of the money going into vehicles, workshops and allowances.

The tender would have been split into four lots of 25 units each i.e. Sh500 million per tender.

The winning contractors would have paid an average of Sh50 million in kickbacks. At best only 75 percent of the units would have been completed.

We would never know since auditors do not have the time or resources to visit every little project, and the project information would not have been disseminated locally, so the potential beneficiaries would not have known that a maternity unit was coming to their village.

Far from being a symptom of the Constitution’s shortcoming, the rapaciousness of the Jubilee administration is an unintended and transient consequence of its effectiveness.

There just aren’t that many large carcasses for all the big ravenous hyenas in Nairobi. The cheese has moved. The rats have not. They slept through the revolution.