It is amazing how long it is taking some people to understand how the Constitution of Kenya 2010 works. Some have chosen not to understand it because it affected their powers in fundamental ways. And when they want to understand it, they do so for self-interests. They only look for provisions that they think are preventing them from advancing certain positions.
But there are others who are simply ignorant about the various provision of the Constitution and especially provisions on devolution. They are ignorant about the fundamental changes that devolution has introduced as a tool for both economic development and democratic change in the country. Among the many who are ignorant about these changes are the very people who are charged with the responsibility of driving change through devolution. These are the Members of the County Assemblies (MCAs), and the County Executive Committee Members (CEC). To this group that play ignorance on how devolution should work, one can also add some elected Members of Parliament and senior bureaucrats who still wish the centralised government to be in place.
The failure of various players to understand how devolution as a tool for economic change and democracy should work has given rise to a set of problems. These problems in turn prevent devolution delivering services in an effective manner.
WARD REPRESENTATIVES IGNORANT AND CORRUPT
The first problem in this regard is the ignorance of MCAs and the high levels of corruption accompanying the engagement of MCAs in county operations. Their ignorance about the role of the County Assembly in advancing devolution has resulted in them becoming an obstacle in implementing devolution in some of the counties.
The MCAs have three roles combined into one single mandate. The mandate is single and simple. They are required to “keep an eye” on how their counties are spending resources. They are also required to make laws that guide use of these resources. And finally they represent, in the Assembly, the views of their voters. But the last four years has clearly shown that some MCAs in a majority of counties have deliberately overstretched this mandate to include actual implementation of development projects. They not only represent people and make laws but also demand resources to implement projects in their own wards.
The projects they implement also become the basis of corruption. They use the projects reward allies with contracts and other favours. They inflate the cost of materials and provide poor quality products in order to make more manner. In the end, citizens get poor quality services at high prices. This is quite common in roads and infrastructure projects undertaken in some of the counties.
This is happening because in some counties, the county executive has compromised the MCAs. Of course this happens because the MCAs threaten the governors with impeachment if they fail to give them the resources they require to satisfy their hunger for public funds. What we have then are MCAs with a double problem: Ignorance of their mandate; and a huge appetite for public resources.
COUNTY EXECUTIVES DO NOT UNDERSTAND THE CONSTITUTION
The CECs in some counties have a slightly different problem but based on their ignorance too. They do not understand the Constitution. They have no idea that the Constitution also envisages them having collective powers as members of the county executive.
Many CECs behave as employees of the governor. They fear their governors because they are accountable to the governor. Many are not aware of Article 179 of the Constitution and the role it gives the CECs as members of the executive. This articles provides that the powers of the County Executive is vested in, and exercised by, the County Executive comprising the governor, the deputy, and CECs who are appointed with the approval of the county assembly.
This means that the CECs hold collective powers with the governor. The Constitution requires they work in collaboration with the governor. They are not supposed to work on orders of the governor but on orders collectively agreed upon in the county executive meetings. The county executive therefore is a “cooperative government”. The powers are collective. They are not rolled and centralised in the hands of just only the governor.
Many CECs are ignorant of their powers. This is in spite the Constitution giving them more powers than what Cabinet Secretaries in national government enjoy. The governors in some counties have exploited this ignorance and have centralised powers in their offices. In some instances, the governors have rolled all the powers of the county executive in their hands to be exercised only by themselves. Some of them do not give any duties to their governors. In the last four years, there have been media stories of governors who lock out their deputies from offices. Others fail to give them resources to carry out any county functions.
Centralisation of powers in the governor and exclusion of their deputies and MCAs in exercising the collaborative powers of the county executive has had one negative consequence. It has cowed the deputies and CECs. With MCAs compromised and in turn compromising some of the governors, there is no one strong enough at the county to check on the powers of the governors. In fact, before the threats of impeachment, the governors in some counties would run the county without bothering to account to anyone.
DEVOLUTION A TOOL FOR ECONOMIC AND POLITICAL DEVELOPMENT
The Constitution provides for constitution as a tool for economic development and promoting democracy at the local level. The MPs in the National Assembly and the Senate have a singular mandate of ensuring that the devolution delivers on this role. They determine how much resources should be equitably shared between the National government and the county governments. They also oversee the performance of the national government and the county governments. But they are yet to come to terms with the meaning of their mandate. They all want to have resources for carrying out development. They have not bothered to explain to their constituencies that they have no role any more in carrying out development functions. They can only oversee what is being done to ensure that it is done in a manner that addresses the needs of their people. Their mandate does not include execution of government projects. Their mandate concerns ensuring that the national executive performs duties in line with the Constitution.
Their failure to understand the very meaning of their mandate has meant increased conflicts between the Senators and the governors in their respective counties; and conflict between MPs and some of the governors too. With regard to the Senate, it is quite evident that many members are yet to appreciate their role in defending devolution and overseeing their operations of the county government. The Senators are yet to actualise the meaning of “representing people” of their counties in the Senate. In fact, in the last four years, the Council of Governors has taken up the role of representing “views of the counties”. The Council of Governors has been more articulate in putting the demands of the counties in public view than the Senate. This cannot be blamed on lack of resources. It can only be blamed on the failure to seize the moment of the transition to stamp their authority on devolution.
MPs have not pressured the counties to fulfil county role in economic development and political development at the local level. They have not been diligent in ensuring that the counties spend more resources on development than on recurrent expenditure. Lack of support by the Senate and the National Assembly in addressing the problem of huge wage bill at the counties has meant that the counties spend more wages than on development. This has been a major challenge and a constraint on devolution.
The county governments have a problem too. Public participation in some counties has been poor yet devolution is about increasing the engagement of citizens in making critical decisions in their counties. The county governments have a responsibility in promoting self-governance and democratising the process of local development but few, if any, have managed to achieve this objective. In many instances, public engagement is confined to endorsement of budgets rather than the whole process of development.
These challenges can only be corrected by attention to the August 2017 elections. The County Assemblies and Parliament will be critical to strengthening local development at the counties. For this reason, there is a need to pay attention to who gets elected at all the levels.
Only by paying attention to leaders who can promote democratic culture in development will Kenya realise the full benefits of devolution. This is precisely because devolution is a tool for both economic development and democratisation of development.
Prof Karuti Kanyinga teaches at the Institute for Development Studies at the University of Nairobi.