Devolution can work smoothly if we follow laws and respect Constitution

What you need to know:

  • The electorate must demand accountability.
  • We can learn valuable lessons from the US on how to establish balance and harmony.

In many jurisdictions where devolution is practised, processes have been perfected and refined through continued restructuring, enhancement, and streamlining to ensure efficiency and balance.

These undertakings have been driven by demand for public accountability and political goodwill.

In the Kenyan case, as we chart our future and practice of devolution, there is friction and conflict between different organs of county governments and between them and the National Government in addition to lack of accountability.

This trend is contrary to the principles espoused in Article 174 and 175 of the Constitution.

These principles call for public service based on the letter, spirit, and intent of the Constitution.

Many of the wrangles and conflicts between the different organs and levels of government have been attributed to failure by the different levels and organs of the national and county governments to respect these principles.

For their part, county governors are locked in a protracted conflict with the National Government on the issue of revenue allocation, with some of them calling for a constitutional referendum on the issue.

This is in addition to the governors’ unhealthy supremacy contest with the Senate, which is bent on stamping its authority and oversight over county governments.

Speaking of the Senate, its relationship with the National Assembly is undesirably acrimonious, something that has prompted the President, on at least one occasion, to step in to cool rising temperatures.

As if not to be outdone, profligate members of the county assemblies have been on an all-out mission of power play and theatrics against either governors in their counties or other members of the executive committees.

INCREASED LITIGATION

These conflicts and lack of internal institutional oversight have resulted in increased litigation to settle disputes and a sour relationship between national and county organs and the Judiciary, with many at one point or another expressing discontent with the latter’s handling of cases in which they are involved.

The situation is exacerbated by the fact that the Commission for the Implementation of the Constitution, the national oversight body charged with the mandate to work with other commissions and state organs to ensure respect for the Constitution, is in reality a toothless bulldog with no real enforcement powers.

For the most part, it has been relegated to issuing warnings and threats of litigation.

Relations between national and county governments and between their various organs cannot be managed through litigation, as seems to be the trend presently in Kenya, where many contests are pending in court.

Furthermore, we cannot expect the law, however elaborate, to address each and every potential conflict comprehensively.

There is a need for restraint based on generally accepted principles to help to promote and maintain harmony and balance in the relationship between the national and county governments and between other organs based on the intent of the Constitution as opposed to selfish self-interest.

LEARN LESSONS

In this regard, the electorate must demand accountability. Ambivalence by the electorate emboldens rogue elected representatives and encourages impunity.

We can learn valuable lessons from the US on how to establish balance and harmony in this system of governance.

The relationships within the federal system and other levels of governance are managed by rules of engagement, established principles, and laws.

This has helped to harmonise the relationship between the federal government and the state governments and other organs.

For example, the US County Government’s Association and the US National Governors Association have developed principles intended to manage the relationship between the federal and the state governments based on mutual respect and restraint.

And although American devolution is 200 years old, we can still learn from its positive attributes.

The argument that ours is a new system that cannot be compared to the US one is just an excuse.

It is precisely because our devolution is new that we should strive to learn from other systems around the world that work well.

There is nothing in the Constitution that prevents the National Assembly from passing laws to normalise and balance the role of devolved government units vis-à-vis each others as long as any such legislation adheres to the law.

As a last resort, the President should be ready to use his powers under Article 192 to force county assemblies to abide by the law.

Ms Njogu is attorney and counsellor at law in Maryland, United States. ([email protected])