Kenya - Challenges of Devolution

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Examining the challenges of decentralization in weak states, Goran Hyden points that they tend to be “imposed” (Hyden, 2007)and therefore “become messy and complex” (Vedeld, 2003)to implement. The process tends not to be holistic and does not target all institutions in society, private and voluntary included (Bratton, 1989). Further, weak African states operate on patronage rather than policy, and theirpolicy-making pronouncements are for theconsumption of donors, but not for implementation. Their ability to operate autonomously is therefore severely constrained by the limited revenue base(Hyden, 2007). What are the experiences of Kenya’s implementation of the devolved system of government? What are the challenges that the process in facing?

Kenya’s unique cooperative devolution

The CoK (2010) created a unique form of devolution in Kenya, with two levels of government: a national government and 47 county governments. The two levels of government are distinct, equal and independent. None is superior to the other, none can abolish the other and none can dictate to the other what to do or not to do. None can take away the functions of the other either. The two governmentsshould dialogue, exchange information, coordinate policies and even establish joint committees and authorities. The Constitution encourages the two levels of government, as well as the 47 county governments, to conduct their mutual relations through consultation and cooperation (Article 6(2), and to avoid actions that may lead to conflict between and among them since its success depends on the extent to which the two governments cooperate and consult each other.

Cooperative devolved government(Republic of Kenya, 2011)best describes Kenya’s devolution, which combines the principles of self-governance (at the local level) and shared governance (at the national level). While at the local level people are allowed self-governance,decisions-making at the national level is shared. Self-governance at the local level is vital for democracy at the national level. The 47 County governments are equal to each other and engage the national government through the Council of County Governors. The relationship between the national government and the county government was not hierarchical, but one of equality based on cooperation and consultation. The independence of the two governments is, however, not absolute but one that is driven by functional interdependence. That is, through cooperation, consultation and agreement each level can perform or assist in the performance of each other’s functions as long as the performing government has the capacity to do it well.

The Constitution of Kenya (2010)providesthe objectives of devolution: the promotion of ademocratic and accountable exercise of power; fosteringof national unity by recognizing diversity andgiving powers of self-governance to the people to enhance their participation in the exercise of the powers of the state and in making decisions affecting them. Others are therecognition of communities’ right to manage their own affairs,protection and promotion of the interests and rights of minorities and marginalized communities,promotion of social and economic development and the provision of proximate, easily accessible services. Nationaland local resources are to be equitably shared while decentralization of state organs, their functions and services, andenhancement of checks and balances and the separation of powers.

Kenya’s system of devolution came into existence after the March 4, 2013 General Elections, which were contested at six levels,the Presidency; Members of the National Assembly; Women Representatives; Members of County Assembly; Senators and Governors. Although data collected in five counties show that support for the devolved governments is still high, there are a number of challenges facing them.For effective implementation, and achievement of the above objectives, theConstitution gave each level of government functions and responsibilities that it could either perform separately or in collaboration with the other government. There are three categories of functions: those that are exclusive to either level of government, those that are shared (concurrent) and those that are residual. The distribution of functions between the national and the county governments is contained in Schedule Four of the Constitution and is captured in Boxes I and II below. The two levels of government can assign, transfer or delegate their powers and functions to each other or to joint committees and authorities provided in the law. Functions can also be transferred to decentralized units and to the urban and cities authorities. This must however be done in a manner that enhances service delivery and accountability. The transfer must be gazetted (in the Kenya Gazette and the County Gazette) and the two Chambers of Parliament (National Assembly and Senate) notified. Such transfer must also be in writing and be mutually agreed upon by the transferring and receiving level of government.

Challenges of Devolution

Kenya’s unique form of devolution is proving hard to implement

In 2010 Kenya adopted a unique form of cooperative devolution based on three principles: the principle of inter-dependence, the principle of distinctness and the principle of consultation and cooperation (Onyango, 2012). Inter government institutions were to be put in place to ensure proper functioning of the devolved system as well as to ensure smooth implementation. However, even though these institutions have been put in place, they are not functional or are not being utilized fully. As a result, the devolved system is proving too complex to easily implement.

Government’s unwillingness or reluctance to implement: Since the implementation of the CoK began in 2010, none of the two governments—the coalition government of President Kibaki and PM Odinga (2010-2013), and the Jubilee government (2013-present)) has been fully committed to implementation. Each of the two governments seems to have been captured or influenced by elements that stood to lose much if the Constitution was fully implemented. The political class that controlled the two governments were not strong champions of implementing the Constitution. The politics of the two governments sucked up a lot of steam from implementation. The initial stages of implementation under the coalition government, was slowed down by electioneering politics of 2013, and International Criminal Court (ICC) cases. Petty disagreements regarding consultations about those appointed to key government positions.

Others were based on interpretation of the Constitution, divisive coalition