There is no doubt that implementation of devolution has exposed glaring weaknesses in the obligation of National Government to nurture devolved units; the operations of County Governments; and the place of the Senate and the National Assembly in the pecking order of governance. There is no doubt also that reinforcing devolution is popular. However, are we approaching the need for amendments realistically and with sincerity?
The Constitution of Kenya 2010 is a product of political negotiations. As we debate the place of devolution in practice, we must therefore never lose sight that negotiated documents are products of give-and-take. The outcome is inherent gaps that are tested at the implementation stage. If we intend to close the gaps, we must first be mindful of developing dialogue on the issues and the means for amendments before rushing into diatribe.
I can speak with authority that the Achilles’ heel in the Constitution or the 20pc of it due for amendment once the Constitution was in force, were known to us. I led a section of the Grand Coalition Government in Naivasha negotiations and know the concessions that were made in the lead up to the referendum campaigns. We made politically opinionated and not informed amendments to the draft by the Committee of Experts.
So it was that in the Naivasha talks, the pressure to have a new constitution within the life time of the Grand Coalition Government overrode diligent attention to structural detail and defects. The concessions made left the Senate hanging precariously against a powerful National Assembly; and County governments functioning, at least at inception, were left to the goodwill of National Government.
The bargains made at Naivasha were replicated in the formulation of laws to give life to devolution. As Minister for Local Government it was my responsibility to craft the laws that would implement devolution. Though I take pride in overseeing passage of five laws on devolution, it was no easy walk and the laws are in no measure perfect.
Because they were enacted in the context of the Grand Coalition politics, they are again products of compromise and will have to be reviewed. Many will recall the tussle between the Local Government and Treasury ministries over the Public Finance Management Bill.
However, the calls for referendum are clouded in lack of attention to processes provided for in the Constitution, lack of clarity on issues and political posturing. After CORD dropped the politically mischievous referendum for change to the parliamentary governance system, the referendum issues remaining on the table are strengthening the Senate and increasing the revenue allocations to county governments.
Strengthening the Senate will obviously require multiple amendments to the Constitution. Devolution permeates the whole Constitution and as the anchor for devolution, you cannot strengthen Senate without altering interwoven clauses in almost all the chapters in the Constitution. Before politics interrupted, the Senate had taken the sober approach of interrogating the Constitution to unbundle clauses that would require administrative implementation, legislative or referendum.
The Senate should not abandon this systematic and mature bipartisan deliberation because amending a constitution and laws is part of implementing the Constitution. But care must be taken to position the issue as further entrenching devolution rather than as part of the supremacy contest between the Senate and the National Assembly. The relationship between the houses requires administrative commitment and application of the constitutional provisions, not grandstanding.
The elephant in the room is the Governors call for an increase of monies to counties from 15pc to 40pc (or is it 45pc?). It is clear that Governors are suspicious of National Government commitment and goodwill to support the entrenchment of County Governments. We are faced with a crisis of confidence.
The Hansard report of the Naivasha Accord will show the coinage “not less than 15pc” of national revenue. Let me explain; it was deliberate to cap it at not less than 15pc with the knowledge that the Constitution provides for surrender by National Government of functions other than those in Fourth Schedule. Furthermore National Government has the constitutional responsibility to support counties with resources outside the 15pc. The constitution also requires National government to guarantee loans to counties where the need arises.