Why referendum debate is founded on distorted understanding of devolution

Saturday October 11 2014

From left: Governors Prof Paul Chepkwony, (Kericho) Wycliffe Oparanya (Kakamega), Isaac Ruto (Bomet), Jack Ranguma (Kisumu) and James Ongwae (Kisii) during the launch of the Pesa Mashinani signature collection drive in Bomet on September 20, 2014. PHOTO | JEFF ANGOTE

From left: Governors Prof Paul Chepkwony, (Kericho) Wycliffe Oparanya (Kakamega), Isaac Ruto (Bomet), Jack Ranguma (Kisumu) and James Ongwae (Kisii) during the launch of the Pesa Mashinani signature collection drive in Bomet on September 20, 2014. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

By KIPCHUMBA MURKOMEN
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The push for a referendum by some opposition politicians and a section of governors has ignited a healthy national discourse on devolution in our country. But there is a need to take this debate to a slightly higher level.

I have read about, listened to and watched some analysts giving the distorted impression that devolution is equivalent to counties or county governments.

Others have even erroneously argued that devolution can only take place once a function is transferred to the counties.

We have been fed with arguments that any function considered national is not devolved.

We have also been told that we can overcome any challenges faced by the nation in the implementation of devolution if we fix a percentage of the national budget to go to service delivery in the 47 counties.

We have been told that there is an imaginary place in Nairobi where the money for devolution lies!

The truth is that devolution, as spelt out in Article 10 of the Constitution, is a governance principle that permeates both national and county levels of government.

In fact, Article 6(3) of the Constitution requires that national State organs must ensure reasonable access to their services to all parts of the country. This means the national government should also devolve functions closer to the people.

Article 174(h) of the Constitution is clear on the objects of devolution: To facilitate the decentralisation of State organs, their functions and their services from the capital.

ACCESS TO SERVICES

When Kenyans overwhelmingly voted for the Constitution in 2010, they knew that devolution, as a stronger form of decentralisation, guaranteed their access to services from both national and county governments.

In fact, county governments have to further decentralise their services to the village level. Even the Nairobi City County has to devolve its services to the upmarket and slum areas of the city, besides shouldering the extra burden of hosting the capital.

Likewise, the national government is expected to devolve its functions such as education, immigration, security, courts, consumer protection and roads to the village level. The Huduma Centre rollout is a clear example.

One should not live under the illusion that county governments have to run a function for it to be considered devolved.

The argument that the county government functions are more important than those of national government to devolution is a fallacy, as they are not listed in their order of significance in the Fourth Schedule of the Constitution.

No level of government owns devolution more than the other.

How are the national and county functions financed? Both national and county government functions are expected to be funded as provided for in the Constitution through revenue raised nationally and through loans.

In addition, each county government raises its own revenue from property rates and levies. It is important to note that the money raised by a county government is not shared with any other county or national government.

The argument by some people that we need to fix a percentage of our national budget to go the counties is, in my view, simplistic and ill-advised.

CONSTITUTIONAL FLEXIBILITY

First, in all countries that exercise a devolved system of government, other than Kenya, there is no constitutional minimum to be allocated to either level of government. The 15 per cent minimum included in our Constitution emanates from our history of political mistrust.

Secondly, a fixed figure of, say 40 or 45 per cent of the budget, going to counties negates the constitutional flexibility of Parliament to negotiate allocation of funds to both levels of government.

Granted that resources are scarce and needs are unlimited, Article 203 provides that the criteria for sharing the funds include national interest, public debt and other national obligations, functions of both levels of government, fiscal capacity and efficiency of county governments among others.

If Kenyans were to fix an arbitrary mathematical figure of, say 45 pc of the budget, where will the extra resources to fill the budget deficit come from?

Mr Murkomen is the Elgeyo Marakwet Senator and Chairman of Senate Committee on Devolved Governments

@KipMurkomen