Referendum debate founded on distorted understanding of devolution


The push for referendum by some Opposition politicians and a section of Governors has ignited healthy national discourse on devolution in our country. But there is need to take this debate to a slightly higher level.

I have read about, listened to and watched some analysts giving the distorted impression that devolution is equivalent to counties or county governments.

Others have even erroneously argued that devolution can only take place once a function is transferred to the counties.

We have been fed with arguments that any function considered national is not devolved!

We have also been told that we can overcome any challenges faced by the nation in the implementation of devolution if we fixed a percentage of the national budget to go to service delivery in the 47 counties.

We have been told that there is an imaginary place in Nairobi where the money for devolution lies!

The truth is that devolution as spelt out in Article 10 of the Constitution is a governance principle that permeates both national and county levels of government

In fact, Article 6(3) of the Constitution requires that national State organs must ensure reasonable access to their services to all parts of the country. This means the national government should also devolve functions closer to the people.

Article 174 (h) of the Constitution is clear on the objects of devolution: to facilitate the decentralisation of State organs, their functions and their services from the capital.

When Kenyans overwhelmingly voted for the Constitution in 2010, they knew that devolution as a stronger form of decentralisation guaranteed their access to services from both national and county governments.

In fact, county governments have to further decentralise their services to the village level. Even the City County of Nairobi has to devolve its services to the up market and slum areas of the city besides shouldering the extra burden of hosting the capital.

Likewise the national government is expected to devolve its functions such as education, immigration, security, courts, consumer protection and roads to the village level The Huduma Centre role out is a clear example.

One should not live under the illusion that county governments have to run a function for it to be considered devolved.

The argument that the county government functions are more important than those of national government to devolution is a fallacy, as they are not listed in their order of significance in the Fourth Schedule of the Constitution.

No level of government owns devolution more than the other.

How are the national and county functions financed? Both national and county government functions are expected to be funded as provided for in the Constitution through revenue raised nationally and loans.

In addition, each county government raises its own revenue from property rates and levies. It is important to note that the money raised by a county government is not shared with any other county or national government.

Unfortunately the current debate has not focused on the efficient collection, usage and accountability of this locally raised resources.

The argument by some people that we need to fix a percentage of our national budget to go the counties is, in my view, simplistic and ill-advised.

First, in all countries that exercise devolved system of government, other than Kenya, there is no constitutional minimum to be allocated to either level of government.

The Philippines, Mexico, South Africa, Nigeria and Ethiopia implement devolution similar to the Kenyan model but they do not have such constitutional minimums.

The 15 percent minimum included in our Constitution emanates from our history of political mistrust.

Secondly, a fixed figure of say 40 or 45 percent of the budget going to counties negates the constitutional flexibility of Parliament to negotiate allocation of funds to both levels of government.

Granted that resources are scarce and needs are unlimited, Article 203 provides that the criteria for sharing the funds include national interest, public debt and other national obligations, functions of both levels of government, fiscal capacity and efficiency of county governments among others.

Besides providing oversight, the Senate negotiates the allocations with the National Assembly on the basis of these indicators and not an arbitrary mathematical figure or percentage.

In the financial year 2014/2015, for example, the projected revenue is Sh1.02 trillion. The national interest which includes defence, national intelligence, Parliament, the Judiciary, the Presidency, the Director of Public Prosecutions, foreign affairs, policing services, the Teachers Service Commission, elections and constitutional commissions was allocated Sh479 billion.

Of the budget, a total of Sh415 billion went to national debt, county governments Sh228 billion.

All these allocations were negotiated by both Houses of Parliament. Even with these negotiations the budget still had a deficit of Sh477 billion. The deficit includes allocations to other national government obligations like education, health, transport, infrastructure, energy and prison services with budget estimates of Sh105 billion.

I now pose a question. If Kenyans were to fix an arbitrary mathematical figure of say 45 percent of the budget, where will the extra resources to fill the budget deficit come from?

Will the national debt be ‘shared’ between the two levels of government?

Will county governments with inadequate fiscal capacity and lower efficiency levels be forced to absorb more money in blatant disregard of Article 203 of the Constitution?

Will the revenue allocated equally to the counties and will all national government functions be given equal share of the national government allocation?

Thirdly, a fixed mathematical figure will render the Bi-Cameral legislature redundant, as its main duty is to negotiate division of revenue between the two levels of government.

Which is why I urge Kenyans to re-think the current referendum debate.

(Murkomen is the Elgeyo Marakwet Senator and Chairman of Senate Committee on Devolved Governments)

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