Ask your Question: Prof Kivutha Kibwana

1. As a prominent lawyer, why can’t you advise Nasa leader Raila Odinga that swearing himself in as the president is not anchored in the Constitution?

Cyprian Muchina, Garissa

According to Nasa, the Supreme Court nullified the election of August 8, 2017 and over 70 per cent of the voters boycotted the October 26 election. Nasa does not, therefore, recognise the legitimacy of the latter presidential vote. However, the Supreme Court upheld the outcome of the October polls on the basis of which the Chief Justice swore in Uhuru Kenyatta as president.

Nasa’s proposed assumption of office of the president and deputy president is not envisaged under Article 141 of the Constitution under which swearing takes place before the Chief Justice or, in his absence, the deputy Chief Justice.  Nasa’s’s swearing of the two flag bearers is premised on Article 1 (1) and (2) of the Constitution which provide for the exercise of sovereign power of the people directly.

The push for the swearing is currently being driven by Nasa supporters who believe the moment it takes place their leaders will take over the official leadership of the country.

Swearing into office has become a political act which has taken a life of its own. If a million or more Kenyans match into the capital city, it may not be practical to subject them en masse to charges of treason.

Swearing-in will confirm the country is sharply divided. Depending on the nature of State response, debilitating civil strife is likely to ensue. Only the onset of genuine national dialogue can avert the looming crisis.

2. From a legal scholar, Cabinet Minister to a Governor: what lesson have you learnt from these scenarios?

Francis Njuguna, Kibichoi

As legal scholars, we focus on studying and teaching the law. From the discipline of law, I understood the rule of law was sacrosanct. 

Often, African-or even worldwide-politics defy law and logic. When you insist on ethical behaviour, some colleagues don’t trust you. I was recruited into the Cabinet in 2006.

Collective responsibility in cabinet can also stifle creativity and innovation although it is a constitutional imperative.

For about 17 months, I served as a double minister for environment and natural resources as well as lands. It was not easy to focus on service delivery in either ministry.

As a governor, one has significant leeway to innovate. When the national government concedes space to devolved units, Kenya will be on the highway to a middle economy status.

3. President Uhuru Kenyatta recently said that the purpose of the county government funds is to address the priorities of wananchi. How do we ensure tehre is no confusion  in the counties?

Githuku Mungai

We have set our development priorities, in line with this distribution, in the county’s Vision 2025 and the five year County Integrated Development Plan. 

Each year our population, through participatory budget-making, identifies the development projects for implementation in their respective wards.

For each project there is a project management committee formed by the beneficiaries which supervises delivery alongside technical officers, our county administration and now a special service delivery unit. The county assembly is responsible for oversight.  We therefore endeavour to minimise confusion in our development projects delivery.

4. Congratulations Mr Governor for curbing sand harvesting in Makueni.  However, there are many gulleys that need gabions and sand dams. What’s your plan for us about this? 

Peter Mutisya, Kilome

We decided to ban sand harvesting save for domestic use. We thought we could conserve sand to guarantee water security as we developed non- sand water sources. Simultaneously we hoped to develop sustainable sand harvesting with the assistance of the National Environment Management Authority.

However, sand cartels have continued to illegally harvest our sand resource. The national security and administration often do not assist us to enforce our sand law. Our officers have been attacked and several vehicles burned as we tried to curb illegal harvesting. Currently Kibwezi East where most of the sand was harvested from is hard hit by drought.

We have adopted a community strategy to enforce our sand legislation. We have also partnered with NGOs to build sand dams. Kilome constituency is our pilot area. In 2017/18, we shall continue to rehabilitate rivers previously destroyed by massive sand harvesting.

5. Congratulations for being re-elected. What plans do you have in terms of development for Kaiti constituency?

 Jacob Kyalo, Kitengela

Our development model requires that citizens, within participatory budgeting, decide the development projects they wish to see initiated in their area. In 2017/2018, Kaiti’s four wards have a development budget of about Sh120 million. In the recent past, Kaiti residents have prioritised development of water sources since dams and boreholes are problematic due to the overly hilly land terrain.

Water to Nunguni market and irrigated agriculture are also other areas of focus. Avocado development is key. Residents have also prioritised development of the road network which is extremely poor.

6. What plans do you have to address  perennial food shortage in the county? For example, there is Mzuri Growers Limited selling over 500 acres of arable land with water for irrigation — Can the Governor buy that land for growing food for Makueni people?

Benjamin Mutua, Makindu

Our agriculture minister has visited Mzuri. We are scouting for a field school to train our farmers on the practice of irrigation. We have a development partner who wishes to fund us develop such a school. We are planning to expand the ATC at Kwa Kathoka, Wote.

7. Does your government suffer from excess staff, is so when do you intend to put your foot down?

Githuku Mungai

We have about 3,500 county members of staff most of whom are Early Childhood Development and Education workers and health personnel. We inherited some from the national government and local authorities. Only county governments and the national government can together review the size and performance of the public sector work-force. This challenge is likely to be addressed.

8. As a Governor and a professor who is focused for both our county and entire Kenyan nation, what legacy do you intend top leave  in areas of youth employment/empowerment as well as the unity restoration of a country left in tatters by political and tribal divisions?  

Sollomon M.Mutia, Makueni

My primary career was teaching law at the University of Nairobi for 25 years; my secondary career pro-democracy work from 1988 to 2002; and my final career politics ending, God willing, in 2022.

I taught and mentored a large number of today’s senior people who serve as Kenya’s legal fraternity. I was one of the key participants in catalysing Kenya’s constitutional rebirth.

This journey is incomplete. Within the devolution era, the people of Makueni are working on a legacy of creating a model for public participation; confronting the real problem of climate change; establishing a Universal Healthcare System;  founding a county youth service; addressing water and food security in a substantive manner, among other flagship projects.

Together in Makueni we would like to work on the four major issues of healthcare; water and food security; youth empowerment and economic independence for all our 180,000-200,000 households.

We intend to formulate, with our people, a county Constitution which of course does not contradict the country’s constitution and ordinary laws.

9.Mortality and morbidity among under five year-old children is a major health issue. How is the county health sector dealing with this challenge?

 Dr Patrick Mutua, Kibwezi

In Makueni drugs for all population segments including under five years olds are well stocked. We have a good working relationship with the suppliers, that is KEMSA and MEDS because we promptly pay for the drugs. We therefore usually don’t experience stock-outs of essential drugs and commodities.

Since 2013 we have increased recommended mother four ante-natal clinic visits from 26 per cent to 40 per cent, skilled hospital delivery from 19 per cent to 58 per cent, immunization of children from 78 per cent to 92 per cent by among other things, establishing 60 new immunisation centres and introduced growth monitoring in ECDE institutions. Children are also taking advantage of our universal healthcare and school feeding program.

10. I would like to congratulate you for the signs you have been showing to tackle water shortage in the county. However, the October-December rains have just failed and people and animals risk starving, what workable plan do you have in place already? Sometime during last year we met concerning rain water harvesting in the county for each homestead. Since we met you, we have never heard from you as you promised. Can you please put in place measures to execute such even in our absence? 

S. K Mualuko, Kisau 

The county water docket has an ambitious water agenda.2017/18 revised budget stands at Sh1,270,181,813. Most of these funds are committed to harvesting water especially for household based irrigation through farm ponds. We are working with development partners to implement a One Billion Dollar Government-Development Partners-Private Sector Alliance to address the chronic water and food insecurity.

We are working with local NGOs to help us deliver the water agenda. We shall renew our engagement with you. We therefore invite you to visit us at Wote. We foresee serious drought and famine due to the recent failure of the October – December rains. We are proactively working alongside the national government, development partners and the communities to avert the looming disaster. Of course resources are a challenge.

11. Why does a place like Senda village not have any reliable source of water and why are homesteads  not connected to electricity?

 Joshua Kivondo, Nairobi

We have done considerable development work in Muvau/Kikumini ward where Senda market is located. In 2017/2018 there is an allocation of over Sh30 million for ward specific projects.

The county has done the Ngalaliki earth dam in 2016/17; the road passing through the market from Beach to Mandoi had been rehabilitated by the National Government Constituency Development Fund but it is now in disrepair. Electricity is connected within the Senda market by the national government.

12.  Mr Governor, when are you going to give us title deeds here at Mukameni village.  Even our primary and secondary schools have none.

Isaac Ndolo, Kibwezi East

Titling of land is a national government function. However we have helped about 20,000 residents of Makueni to access titles free of charge. Currently we have a budget to assist another 15,000.  When I was minister for Land, I assisted the Mbitini area among other locations, to get free titles. However some people did not go for the titles at Wote and the offer lapsed after 2007.

I have asked our lands officials to check on the titling status of Mukameni location.

13.  I did some work for Makueni County in the first days of its formation as per the attached documents which was never paid nor my complaint replied to. My question to the Governor is will this matter be ever resolved or do I accept that there will never be a solution and move on? I appreciate the good work being done in that County. I am writing to seek closure on the issue of my payment for my  engagement by Makueni County to restructure, re-conceptualize and refine the original document of ‘’A Handbook for  Civic  Education County Governance and citizen’s’ participation Volume 1.

Paul Mwaura, Nairobi

Mr Mwaura, you were one of the persons invited to a review/editing workshop consisting of non-state actors, educationists and civic education providers to fine tune the handbook. The county paid them for seven days’ worth of work. We believe in remunerating our service providers according to agreements entered with them. For that reason many contractors cherish doing business with us. If there is an outstanding bill, please personally forward it to our finance chief officer and inform the governor.

14.  Prof, during your previous term, most parts of the county didn’t develop due to incessant political wrangles within your administration. Some projects which were commissioned didn’t take off as anticipated. For instance, Kali-Kikima-Kitundu-Mbumbuni road project which is under annuity funding has not commenced since it was inaugurated. The security flood lights installed at Kikima town market haven’t been functioning for a couple of months after disconnected from the grid due to soaring debt with the power utility company. What are you going to do ensure these projects run smoothly and timely?

Martin Muia, Mombasa

It is true the first three years of our administration were characterised by a deep schism between the county executive and the county assembly.

Even some members of the national assembly joined the assembly side to impede development. During my inauguration I promised that I would run a corruption-free county.

Some of the leaders felt I had declared war against patronage. I refused to play ball. I was subsequently denied timely passage of the annual budgets. I almost got killed at the premises of the county assembly.

Impeachment proceedings were commenced against me. Later I learned there was a plot to make the county ungovernable so that a civilian coup spearheaded by the MCAs would get me out of office.

However, the turning point occurred when the county citizens petitioned President Kenyatta for dissolution of the county government. The MCAs realized that the citizens held the political ace card.

This made MCAs country wide minimize their avarice and sabotage of the executive’s development efforts. Fortunately during the last years of the first term, the MCAs gave us space to do people’s development work. We were able to lay the foundation of our county’s future progress. We moved to establish a Rapid Results Delivery Unit.

By end of June 2017 the county was able to productively absorb 88 percent of our total budget for the first devolution cycle.  Only one popular MCA was re-elected from the 30 initial MCAs. After the president declined to dissolve the county assembly fearing a citizen run on all county assemblies, the people of Makueni postponed the day of reckoning to 2017.

We now have an excellent relationship with the new assembly. I am also in the same party as majority of the MCAs who are able to oversight the executive in good faith.

There are no delays in passing necessary legislative and other enabling measures. This accounts for the recent rapid progress. The Kali-Kikima-Kitundu-Mbumbuni road is a national road. We are in dialogue with the national government for all roads earmarked for tarmacking to be completed within the contract period. The Kikima flood lights have been off for some time. One has been repaired; the second had a challenge which is being addressed. The county is currently procuring a service provider who will be responsible for the maintenance of all county flood and other lights. We invite Hon Lesrma to visit our county. We desire to partner with scholars so that they can conduct research into our devolution story.

15. When will you resolve the border dispute at Mtito Andei between Taita Taveta and Makueni since each county claims share of it?

 John Mwakoma Kisombe,  Taita.

 Before independence, the administrative boundary between the coast and lower eastern was the Tsavo River. During constituency boundaries review around 1962, the electoral boundary between Makueni constituency and the adjacent Taita-Taveta district was adjusted to extend the proximate coastal constituency to near Mtito Andei.

However the provincial boundary was not altered. Machakos district continued to levy taxes in all tourism facilities within the Tsavo national parks.

The controversy has been whether a provincial boundary can be altered by an electoral body in the absence of the participation of political leaders from the affected regions.

Both counties in the last cycle of county governments resolved to refer the matter to a special boundary commission. Makueni and Machakos counties have also boundary conflicts at Konza/Malili and Kalama wards which will similarly have to be resolved.