- Kenya achieved a lot by passing the 2010 Constitution. But much of this was because of the public involvement and the belief and enthusiasm it generated.
- It is an error to assume that just by changing a constitution you will solve a problem. Let’s try to make the one we have work.
Image: FILE
Certain “Let’s change the Constitution” themes crop up periodically as supposed solutions to supposed problems. Currently, not for the first time, one reads “Let’s change our expensive devolution system.” There have been suggestions of doing away with the existing counties and having eight regions instead.
Do we have a problem?
Arguably a smaller number of counties would be less expensive. But before 2010 Kenya had 175 local authorities. This suggests that you cannot simply reduce the number of units and automatically save money. You need to have structures and staff at local levels. Of course there are different ways of doing it.
Much of the expense of devolution is to do with exactly the sorts of issues we complain about at the national level: extravagance – stemming from exaggerated sense of self-importance among politicians - corruption (including ghost workers), wastefulness – like beginning projects (notably roads, stadiums and markets) and not completing them, or not planning them properly so even if finished they are white elephants because they are unused or even unusable.
In 2016 the Office of the Auditor General produced a report – through a Working Party - a Socio-Economic Audit of the Constitution. This was requested by parliamentarians who hoped it would criticise devolution especially. They would have been disappointed because the report – while by no means saying all was perfect – gave on balance a favourable account of devolution and did not identify it as a particular extra burden on the taxpayer.
The issue of course is not just cost but cost as against benefit. The Working Party said, “the Constitution is delivering better services through devolution. All the county governments have embarked on new development projects, often in line with the local needs. Some have provided services that have never been available to residents since independence in 1963. Also, citizens have access to relatively better services than in the past. The marginalised areas have resources for their own development as other parts of the country. Devolution is slowly achieving the promise of delivering equitable services in all corners of the country; it is addressing the challenges of imbalances in development in an unprecedented manner.”
Eight years on, would they say the same?
A little constitutional history
It was agreed that some system of devolution should be part of a new constitution even before the first stage of the official constitution making process began.
This didn’t of course mean any specific model. Some people remembered the system of regional government in the independence constitution - immediately done away with by President Jomo Kenyatta. But early ideas in the constitutional process were of something not far from local government but guaranteed in the constitution, so not under the control of the national government as the old local authorities tended to be. Certainly the Constitution of Kenya Review Commission did not imagine lots of governors with big cars and big egos and official residences etc. – though perhaps they made a mistake in introducing the term governor.
From that draft in 2002 until the first draft of the Committee of Experts the plan was to have a level of devolved government above districts (which became counties), initially the existing provinces of Nairobi, Central, Coast, Western, Nyanza, Eastern, North Eastern and Rift Valley. But the Bomas conference decided that this would fail to achieve greater involvement of the people because of the size and shape of the provinces. In the last three mentioned, particularly, the regional capital would be as remote from many people as Nairobi.
So the Bomas constitutional conference – after much discussion – recommended 14 regions. Within those there would have been 74 districts. This was the existing number of districts – though it was being constantly increased by vote-seeking presidents.
The first CoE draft was similar. But the roles of the proposed regional governments did not appear very clear or very significant. They were mainly planning, management and coordination of what would be carried out by the counties. It also went back to the old eight provinces to define that level.
The criticism of the powers and role of the regional governments in their first draft led the CoE to abolish them. Feeling that that would leave too many, too small, counties to exercise the powers proposed, their second draft proposed the current 47 –which were the only districts legitimately created, by law.
Possibly, if the adopted constitution had been more like earlier drafts, with two levels of devolution, not just the county level, and possibly more at the lower level, we would have avoided the pomposity and self-importance that so characterises much of county – like national - government. Perhaps the 14 regions of the Bomas draft would have had these characteristics and the lower levels, though many more, might have been simpler and less expensive.
Can things improve without constitutional change?
We now have arguably more MCAs than we ought to have. Does Nairobi really need 85 elected MCAs? (These were not fixed by the Constitution.)
True, in the US, Kentucky and Louisiana, for example, with around 4.5 million people have a house of representatives of about 100 (and a state Senate!). Saxony in Germany with about the same population has 120 members in its legislature.
Of course they have more responsibilities than Kenyan MCAs including far wider mandates and more money to spend .Nairobi’s budget for 2024-25 is Sh41,568,470,826 while Louisiana’s total budget for 2025 is Sh6,391,482,350,948. 153 times as much.
Nairobi’s county assembly is not just 85 people; there are 39 “nominated” members. Four of these are to represent persons with disability and other special categories. The other 35 are women to make up for the fact that Nairobi only elected four women for wards. Nationally about 559 women “top-up” members of county assemblies were needed in 2022. If parties nominated, and voters voted for, women in sufficient numbers we would save a good deal of money on MCAs!
Of course best would be if counties (and the national institutions) would become more efficient and less corrupt – and less overstaffed. As so often the issue is not with the constitution but with failure to do what the constitution and the law – and good administration - require.
If counties offered more services for which they charged reasonably and thus increased “own revenue” but not just by more taxes.
Murang'a Governor Irungu Kang'ata recently, and rightly, commented that the tendency to create authorities in so many statutes, with their boards, and their “perks and benefits” is a questionable drain on resources.
Other problems with the amendment idea
First is the reason the Bomas conference abandoned the eight province idea: for many people it would not bring government much closer or generally achieve the objectives of devolution in Article 174.
Governor Kang’ata also wrote that “it is never wise to align administrative units with ethnic boundaries” and the old provinces were colonial creations based on major ethnic divides. Of course the old districts (now counties) were also colonial and ethnic based. But they do avoid the error of large politically empowered, ethnic based, units (one of Nigeria’s motives for having 36 states plus its capital territory). (Something that some like our Deputy President try hard to reinvent).
Under Article 255, a constitutional amendment “relating to the objects, principles and structure of devolved government” needs support of a referendum. This proposal would need it. And how likely is it that Kenyans would vote their counties out of existence?
Kenya achieved a lot by passing the 2010 Constitution. But much of this was because of the public involvement and the belief and enthusiasm it generated, as well as the back history. It is an error to assume that just by changing a constitution you will solve a problem. Let’s try to make the one we have work.