Senator Kipchumba Murkomen cannot and will not be ignored by the Executive or the National Assembly. For either by fate, or by dint of his duty as chair of the Senate Committee on Devolution, Murkomen is forcing on the table an issue that we inevitably have to face: the power balance between the Counties and the national government.
The National Assembly has told the Senate to only involve itself in matters to do with counties and leave national affairs to MPs.
That may be true: But what is the magnitude of county matters and which between the two levels of government is likely to see its responsibilities grow relative to the other?
Thomas Jefferson, the third president of the United States held the view that the different states confederated to form a common position against foreign nations but domestically, each oversaw its own affairs.
"My general plan would be, to make the states one as to everything connected with foreign nations, and several as to everything purely domestic." --Thomas Jefferson to Edward Carrington, 1787.
In Kenya’s case, the process is reverse. Since counties did not exist when we wrote the constitution but were created by it, they did not have representatives to sit with national government and discuss how power would be shared.
Now they have come of age: they want negotiations.
The trigger it seems was the dismissive way in which the National Assembly ignored the Senate’s input into the Division of Revenue Bill which President Kenyatta signed into law.
Murkomen with the support of the Senate and county governors wants the Supreme Court to rule as to whether the Executive and the National Assembly were right in bypassing the Senate.
Practically, this matter should not end in court for determination. If government institutions and the officials who man them have been working the last two years, they would have known this issue would come up and scheduled meetings to iron out differences between national and county government positions.
In this, I have in mind Treasury and the former Local government first and foremost for they have been fighting over the same issues now being raised for the better of the past two years.
Support institutions such the Transition Authority, CIC and Commission on Revenue Allocation have all also been party to this territorial battle and should have by now counseled a way forward.
The issue first exploded in public in May, 2011.
Then, I attended a meeting held at the Kenya School of Government to discuss how government cash would be managed and allocated between national and county governments.
Present were most government officials who would potentially be involved in the issue.
Treasury, Local Government, (importantly, these two fell on either side of the Grand Coalition), Ministry of Planning and Ministry of Public Works were all there. CIC, CRA and other government officials were also present.
Trouble started when Treasury and Local Government presented differing views.
Treasury’s position was fronted by the Working Group on Fiscal Decentralization which was headed by current deputy governor of the Central Bank Dr. Harun Sirima, and new Principal Secretary for the Treasury, Dr. Kamau Thugge.
Local Government on the other hand, had different ideas and had formed its own team: The Taskforce on Devolution, headed by Mutakha Kangu.
Kipchumba Murkomen, was a member of this taskforce.
“You can’t implement what you don’t understand. Proper implementation of the constitution needs holistic civic education from top to village,” Murkomen is quoted to have written on his Facebook page recently.
At the time of the battles between the Treasury and Local Government, the Kangu taskforce felt that bureaucrats at Ministry of Finance wanted to dilute devolution by retaining too much power over resources at the top.
Treasury on the other hand, felt Kangu and team were overreaching themselves. Their task, PS Kinyua felt, was merely to study and recommend a working arrangement for the two levels of government not to get into details of how each would be financed and from where.
The battle dragged out until last year when the compromise Public Finance Management Bill was passed by parliament although it heavily borrowed from the Treasury Working Group’s views as opposed to the Local Government’s Taskforce one.
Now Kipchumba Murkomen finds himself with the baton, in the same race. He and his fellow senators as well as county governors feel devolution is being undermined while the National Assembly feels either the Senate should confine itself to county matters or be abolished altogether.
The time has now come for National and State representatives to sit down as equals in law and determine how power will be shared between the two. It is only right, that an entity that is party to division of power or resources, be present when negotiations for this division take place.
As it stands, the county was absent when laws were made to determine its position relative to the national government, and now, the National Assembly, wants it to be absent during division of revenues and only take what it is told to take.