Devolution: Is the drinking glass half full or half empty?

Despite depressing scenes pitting the Senate against Parliament, the Executive against Judicary, and governors against MCAs and senators, devolution has had many positives five years on, writes NZAMBA KITONGA.

One of the most radical paradigm shifts that the 2010 Constitution introduced is devolution. But five years later, is the glass of devolution half empty or half full?

If one wants the negatives of devolution, they are many. It started in Embu where the bid to remove Governor Martin Wambora ended up with the Senate and the county assembly being taken to court.

The stand-off in Makueni County between the executive and the county assembly, which turned violent, has also been well-publicised. The Commission of Inquiry formed to consider the dissolution of the County Government will soon present its report.

The attempts to impeach governors have failed, but there are continuing threats.

The Constitution contemplates a situation where such impeachment would involve serious grounds of misconduct. But members of the county assembly appear to invoke impeachment at the slightest provocation.

These include perceived madharau, failure to allocate funds and refusal to provide perks and to pay allowances. Indeed, it is only in Embu County where the grounds of impeachment involve alleged mismanagement of resources and breach of procurement rules that there was an attempt to meet the constitutional threshold.

However, voters cannot run away from the responsibility — as voters who elected the governors and the MCAs — by crying foul and saying “it is the Constitution”. It is not. We get the leaders we deserve.

The tragic comedy in some counties represents the “new wine in old bottles” challenge. The Constitution is new but the leaders are the very old same ones.

In Nakuru and Nairobi county assemblies, fistfights and throwing of chairs have been witnessed, lest we forget that the old kanjura is the new MCA. Their seniors in the National Assembly could not be left out of the action. And so in December 2014 a great battle took place over the Security Amendments Bill.

POSITIVES

Despite these depressing scenes, there are many positives in devolution and indeed the glass is half full.

I was almost moved to tears when the residents of Wajir proudly proclaimed that they have, for the first time since independence, seen a tarmac road.

Indeed, most counties have undertaken the repair of rural murram roads, schools, dispensaries and other local amenities. Recruitment of “home boys and girls” in the counties has made the residents happy. However such recruitment is skewed within the counties as some groups complain of exclusion.

The business community within the counties is also happy as commercial activities have greatly improved.

The elite of Nairobi and other urban areas have started investing in the capitals of their home counties. One, therefore, notices a lot of construction activities within these capitals.

The relationship between governors and senators started on a very hostile note, just like that of the Senate and the National Assembly. Both of these confrontations have culminated in court proceedings.
Governors have resisted appearing before committees of the Senate.

The truth is that the committees exercise a constitutional oversight mandate and governors are legally bound to appear before them. By the same token, senators cannot purport to make legislation which confers upon them executive authority at county level. Happily, the courts have pronounced themselves abundantly over these disputes.

Not so with the persistent confrontations between the Senate and the National Assembly. Admittedly, the famous Naivasha Parliamentary Committee greatly distorted and disharmonised the relationship between the two. Nevertheless, the Committee of Experts was able to craft some clauses which provide a mechanism for a harmonious co-existence.

The problem is, therefore, not the law. It is egocentrism, misguided machismo, belligerence and arrogance within the membership of the two houses. The National Assembly is particularly intolerant and recklessly condescending of the Senate. The height of this intolerance was when it denied the Senate the funds for its oversight activities.

And last Wednesday, MPs questioned the jurisdiction of the Senate to probe Kenya Airways, with some throwing epithets and barbs at the Senate in an undignified and capricious manner. We may have to learn to live with this endless hostility.

The executive appears to have abandoned its previous ambivalence in the implementation of the Constitution. Last year, the President swore-in the remaining batch of judges recommended to him for appointment.

He also abided by court orders and the recruitment of new police officers commenced afresh. Some of the provisions of the Security Laws (Amendment) Act were struck out by the High Court. The government should avoid needless confrontations by consulting widely on controversial legislation, including the proposed amendments to the Kenya Defence Forces Act and those relating to the Office of the Auditor-General.

The courts have continued to burn the midnight oil in interpreting and breathing life into the Constitution.

The major constitutional milestones attained by the courts were the judgment relating to the Security Laws (Amendment) Act, the decree making the Constituency Development Fund Act unconstitutional, the decisions declaring that governors must appear before committees of the Senate and that senators cannot have executive authority over county governments.

The most depressing news was contained in the Auditor-General’s report. Government officials should not fool the public. They know that the Auditor-General operates within a tight constitutional timeframe. They must provide all the required information to him before the expiry of this timeframe.

That aside, the report outlines a litany of misuse and mismanagement of public funds. At the county level, there seems to be an obsession with how to extract more allowances and perks from the public till. At national level, the sad story is the same. Not surprisingly, insecurity, tribalism and corruption emerge as the continuing major challenges to our nation.

EXTREMELY SENSITIVE

The war against corruption faced obstacles primarily because the legislation which was enacted to implement Chapter Six of the Constitution on integrity is weak.

Moves are afoot to strengthen this legislation through further enactments and these are welcome. However, the proposal to make commissioners of the Ethics and Anti-Corruption Commission (EACC) part-time may in actual fact weaken it. Part-time commissioners will not be accountable. The mandates of EACC and the Independent Electoral and Boundaries Commission are extremely sensitive. They require full-time commissioners.

Once again, both the Executive and Parliament have failed to finish the enactment of pending Bills required to complete the implementation of the Constitution. We have been treated to the usual merry-go-round where every office blames the other for the delay.

We know that Parliament acts in record time when it so wishes. It dealt with the matter of Monica Juma with supersonic speed!

Parliament should convert this negative energy into positive energy by completing the enactment of constitutional implementation legislation.

Kenyans knew that because of the partisan nature of our politics, implementation of the Constitution was not going to be a walk in the park. For what we have so far achieved, we must thank ourselves and God. Let us cheer-up and celebrate the fifth year of our implementation of the Constitution.

The writer is the former chairman of the Committee of Experts