After reviewing a section of the Interim Report by the Task Force on Devolution, I am quizzical and yet sympathetic to the team tasked with shaping Kenya’s devolved governments or local governments. The team means well and I don’t doubt that they are wading in unfamiliar territory. This call for scrutiny of their work. It is incumbent upon us, particularly the ones who live in the United States in which our new constitution is modeled after, to provide as much assistance as we can.

“Devolution” is not a new concept in Kenya.We have always had local governments managed by the central government via the Ministry of Local Governments- the new constitution only enhances the capacity and participation of citizens in their own government at the local level - or so we thought- until this task force and its interim report happened. I think the report points to a perilous path being carted by these framers that not only threatens to reverse all the gains made since independence with respect to local governance but also frustrates the very purpose of remanding power to the people as originally intended in the new constitution.

The constitution was intended to strengthen the structures already in place, to enhance what we know works and improve what doesn’t and yet it appears the taskforce set out to do the exact opposite, that is, reinvent the wheel in its entirety, scrap the old which we know and are quite familiar with and replace it with one which we don’t know but portend to be experts. 

The devolved government in the new constitution is meant to hasten the pace of development by quickly and easily disbursing resources to the local level and to let the locals make their own decisions. Going by the report, it appears the taskforce has spent insurmountable resources focused on the “form” of local governments and less on the “substance.”

a) Local Governance: The report makes a complete mockery of the meaning of devolution in so far as it removes the existing fundamental structures the common citizen has known for so long and substitutes them with that which these framers obviously know very little about.

The existing local structures- (municipalities, town councils, etc.) alongside their elected leadership, with slight modifications and tweaks/reforms, are the best placed entities to address local governance issues. The new constitution was intended to evolve them, to properly fund and equip them so they can become better responsive to the needs of the citizens at the grassroots, NOT to scrap them altogether and start over. We need a limited government that is efficient, effective and responsive to the daily needs of its citizens. County Assemblies are NOT it; wards, councils and municipalities are the answer. We must therefore PRESERVE and IMPROVE them. The Taskforce report seems to elevate county assemblies in a manner that eliminates local governments and replicates multiple parallel central government structures across the country. 

b) Representation: The taskforce overlooks the critical role of the governed in their own affairs and instead prescribes to them what, how, when and in what form their government should be. This disenfranchises both the voters and would be elected officials by establishing archaic and unreasonable qualifications for representation which in-fact exclude and indeed render sections of the population “marginalized.” The most egregious of its provisions is the recommendation that small towns and villages/wards should not elect their leaders to manage their affairs but rather these managers will be “appointed” from above. This is counter to the task force and indeed the Constitution’s expressed intent to revert power to the people.

Citizens at all levels of government ought to choose their leaders at the ballot box. The taskforce also wants voters to essentially elect “parties” and let the party decide whom from their esteemed echelons fill those posts on a prorated share. Should voters be denied the right to choose candidates on account of party affiliation or lack thereof? Must each candidate belong to a party? No! This is not what articles 90 of the constitution says.  It would create, in my opinion, “elitism” in government, if such extreme academic and experience standards as prerequisites to run for county government were to become law;  prerequisites such as the requirement for one to be a degree holder are not even in place at the national level.

We want equal access and protection for ALL citizens under our constitution, not classism. Except for limited qualifications such as perhaps a high school diploma, the decision to elect leaders is an individual choice better exercised at the ballot box. We must not allow the few elite among us to prescribe to us, particularly at the local level, who amongst us is best equipped to lead us. Some of the worst judgments in our country have come from the “educated” elite amongst us.

c) County and Local Government Engagement in Business. Unless for practical purposes such as setting up utilities including Electric Grids and Water Supply plants, I cannot see any reason or justification for counties to engage in business and compete with private enterprise. Governments are extremely inefficient in business. This is not their province. Non-taxpaying government entities cannot fairly compete with taxpaying private enterprise in business, that is NOT a level playing field but most importantly it is not in the citizens’ best interests nor that of the government itself to engage in competitive private enterprise against its own citizens.

d) Administration of Justice: The Taskforce must address this very carefully. Local governments will invariably pass rules and laws by which the counties are governed. These laws are not acts of parliament but are as valid and constitutional unless declared otherwise. The Taskforce must therefore come with a mechanism and framework on local administration of justice. I think we can start by seconding the existing courts to hear and determine local violations and disputes for which there are no national laws. This will lessen the bottlenecks that currently clog the judiciary. I also think we need to let County Attorneys/ District Attorneys make most if not all prosecutorial decisions and move away from the current regime where “Consent” must come from above at the Attorney General’s office.

e) Revenue and Expenditures: The Taskforce should give some guidance on taxpayer funded expenditure variables and their corresponding caps. For example, the counties must not be allowed to spend more than say 31% of their revenues from whatever source derived on Overhead and Staff. Any expansion outside of these caps needs to be revenue and tax neutral. It must not be an undue or incremental burden on the citizens nor take away from what would otherwise be to the benefit of the local communities. Revenues must be expended for the purposes for which they are designated; otherwise, the consequences for any variances must be spelt out. The circumstances and purposes under which local governments  may borrow through such instruments as Bonds and the Tax Consequences attached to such borrowings must be discussed. Other issues of discussion are: levels of funding per capita necessary to fund development projects; county competition for outside business and any other incentives; Sales and other Tax revenue (VAT) retention rates between the state and the local governments; national resources such as parks and ports need to revert back to the state if they are not already.

I welcome your critiques, positive or otherwise- we can all learn from what you have to say and translate it into a better form of government, over to you now-your turn.

By David Ochwangi
The author can be reached at [email protected]