In 1963, when Kenya got its Independence, the country had the Lancaster Constitution with clearly defined regions and with regional presidents, and also power of regional assemblies to make law and charge taxes.
All over a sudden, in less than five years, the framers of the Constitution, the Kenya African National Union and Kenya African Democratic Union were at loggerheads with each other.
From the foregoing, Kadu was a firm believer of decentralisation of the State, noting that the British colonial government had annexed more than half of the country from so-called ‘development’ supported decentralisation of the State and its apparatus or agencies.
Noting the above, Kanu won the 1963 elections, and through President Jomo Kenyatta, demolished the very edifice of the Lancaster Constitution severally.
First of all, the Kanu government literally destroyed that Constitution through frivolous, notorious and hurriedly agreed-upon amendments. The first amendment of 1964, read together with the third of 1967, mutilated the decentralised Constitution.
The first amendment made Kenyatta the only President to be talked of, which essentially meant that regional presidents became chairmen. The third amendment destroyed the Senate, which was the bastion of regional governments. Indeed, Tom Mboya, the effervescence protector of the Kanu regime and the President’s ‘blue-eyed boy’, said that regional governments are “dead woods Kenya could do without”.
FAST FORWARD TO TODAY
When the public saw governors ‘up in arms’ to protect the Division of Revenue Bill, this Commentator remembered the aforementioned. It is clear that devolution is under serious threat, and it has to be said from the rooftops.
First, the 2010 Constitution allowed county governments to have the independence of thought, practice and implementation, vide Article 6 and 174.
Unlike the Lancaster Constitution, the framers of the current supreme law, which includes yours truly, protected devolution through Article 255. That amendments of any Article on devolution must and shall include a referendum. In sub-Article (i), it is provided that we should protect “the objects, principles and structure of devolved government.”
In Article 174, it is evident that devolution was a reason why most Kenyans, and we accessed these files and presentations as early as July 2002, were envious of development in Nairobi, but the margins and the counties were left behind.
That is why, after a lot of negotiations in Nanyuki, Naivasha and Nairobi, among other towns, the Committee of Experts working with the Reference Group, agreed on 47 counties. The logic is as simple as this: First, Kenya had 41 districts at Independence. The other six were added into the provinces and districts Act of 1992. For those who do not understand the reason why Kenya has 47 counties, now you know.
Indeed, all those curved-out districts — over 150 by presidents Daniel Moi and Mwai Kibaki — were sideshows, and were only politically done to appease to Kenyans, that ‘government is getting closer to the people’. Nothing happened other than the raising of the national flag by some chief or some cop.
DEVOLUTION IS REAL
Albeit what is going on in regards to corruption, especially in the counties, devolution is a real game changer. This commentator has travelled and lived in 45 of the 47 Counties in Kenya, both before and after devolution. Machakos, Kisumu, Turkana, Meru, Makueni, Kakamega, Uasin Gishu, Lamu and many other Counties are recording real growth, not just ‘populist development’ of the past during the Kanu regime.
Further, whilst there are serious governance problems, including the notable corruption scandals, most county governments have made a difference to the local population, unlike the centralised government that had existed from Independence in 1963 to 2010.
Moreover, if some organisations were to do a survey on what the people think about their counties, this commentary without using a scientific process would argue that the devolution units have made a difference to their lives, whether or not there is corruption.
This commentator, in the various escapades in the counties, has witnessed new roads, new stadia, new hospitals, and other new infrastructures initiated by the counties. Although there are serious problems of strikes in hospitals, in schools, amongst most workers in the counties, we should and must protect devolution, as the last bastion of our country’s development.
PROTECT THE SENATE
The third amendment of the Lancaster Constitution was about demolishing the Senate. What transpired was unknown to constitutional democracies across the world. There were 41 senators at independence, representing not just the 41 districts, but also the regional governments then.
When that amendment was passed, the senators were requested to drop down to the lower chamber, without an election, to take seats in the National Assembly. That is when the 117 members of the National Assembly were increased to 158 members to accommodate the senators. Kenya had changed. It is written that Kanu and Kadu had merged.
However, what actually transpired is that Kenya became a defacto one party State, and with it, everybody knows what transpired in 1982 in the 19th amendment, which made KANU the sole party in the country by dejure. The rest is history.
PUNGUZA MIZIGO
The Punguza Mizigo initiative by Thirway Alliance has been eked in the past. It is about lying to Kenyans that the 2010 Constitution is expensive. It is my considered view that the Constitution is not expensive: Corruption is expensive. The amount of money stolen in this country, versus the costs of the Constitution, when implemented fully, are costly.
So when politicians lie to the public, regardless of whether they have gotten the requisite signatures, yet they were fully involved in drafting of the same Constitution, then we have a major problem. Why did they not make those views known during a 24 months process of the drafting? It seems just absurd.
FINAL WORD
From the foregoing, it is evident, that despite promulgation of the Constitution is 2010, the enemies of the so-called new order are regrouping. Those who supported the Constitution, to seem popular then, have re-engaged to oppose the same, to again seem popular. But also, those who opposed the same Constitution were elected to power and have since dethroned those values and principles of that order.
Kenya is at the cusp of some serious constitutional crisis. Similar to 1964, 1967, and also 1969, when the Lancaster Constitution was disfigured through the tenth amendment, some politicians are trying to again dismantle the Constitution of 2010. We should resist such attempts.
In conclusion, the Constitution is not perfect. None of the world’s constitutions is anyway. Indeed, as one of the framers, there are some regrets on the issue of the two-thirds gender principle; the structure of representation where it is still first-past-the-post; the issue of viability of Counties in terms of collecting revenue; matters pertaining to the representation of minorities in the assemblies; and finally, the transitional issues of the various State officers.
Whereas support for constitutional amendments has gone to the county assemblies, members of those assemblies should dissect each piece of the proposed amendments with serious scrutiny. The history of this country is tainted with weird and unwarranted amendments, and that is why Article 255 (j) reads as it does.
That is the difference between the Lancaster Constitution and the current Constitution. The provisions of the Amendment Chapter are seriously protected, because lessons were learnt from the history of this country.
Tom Kagwe, J.P.
DISCLAIMER: The contents of this Commentary are meant to inform, educate and initiate debates on the proposed constitutional amendments and also highlight historical issues about devolution, so that Kenyans debate within that prism. The writer is a political scientist who is well-versed with the constitutional history of Kenya, before and after independence.
