KATIBA CORNER

Okoa Mombasa! Okoa Kiambu! Do the counties need saving?

It has been hard for elements of the national government to accept logic of devolution.

In Summary

• People in some counties, especially Mombasa, feel that what is within their boundaries ought to be “theirs” in the sense of belonging to the county or being controlled by the county.

•  In Nigeria, oil is a national asset, but states from which it is derived are entitled to a share of the revenue

Okoa Mombasa members outside the Technical University of Mombasa on Saturday
CANNOT BE SILENCED: Okoa Mombasa members outside the Technical University of Mombasa on Saturday
Image: BRIAN OTIENO

While the Okoa Mombasa movement wants to save the county from the national government, Okoa Kiambu wants to save Kiambu from its governor.

They raise interesting questions. Is this the beginning of what in the federations is called a “states’ rights” movement? Is it the beginning of a genuine stirring of the people of Kenya, taking up the challenges and opportunities presented by devolution?

Are they taking seriously the idea that devolution is to “give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; [and ] to recognise the right of communities to manage their own affairs and to further their development” to quote Article 174?

 

NATIONAL GOVERNMENT'S PROBLEM

It has been hard for most elements of the national government - the Executive, especially the Presidency, Parliament, and what used to be called “Provincial Administration”, the elite of the public service – to accept the logic of devolution. The central element of that logic is that Kenya now has 48 governments, not one government and 47 local authorities.

But we have seen repeated failures to include in new laws provisions that recognise counties’ functions – the Protection of Traditional Knowledge and Cultural Expressions Act, the Mining Act, and the Water Act, all of 2016, are examples.

In fact, this tendency has gone further, to wanting to tell counties how to do things. Senate Bills in 2018 included: the County Wards Development Equalisation Fund Bill, County Outdoor Advertising Control Bill, County Early Childhood Education Bill and County Hall of Fame Bill. When the Constitution says the Senate has the role of protecting counties and their governments, it does not mean directing them in detail how to do what the Constitution gives them the power to do.

The tendency to muscle in on county functions went further with the legislation creating County Development Boards including MPs and chaired by the relevant county Senator – fortunately, held unconstitutional by the courts.

 

And the devices used by the Treasury and Parliament to deprive counties of resources are also indicators of the efforts to minimise devolution.

Unfortunately, county assembly members also may have a poor sense of their distinctiveness as the Constitution puts it – as with MCAs who have invited the Senate to look into the enactment of a county Act.

 

CAN COUNTIES CONTROL THEIR RESOURCES?

People in some counties, especially Mombasa, feel that what is within their boundaries ought to be “theirs” in the sense of belonging to the county or being controlled by the county.

The Constitution supports this as far as land is concerned: Public land that is not in some way allocated or occupied to anyone (leased to an individual or company, occupied by any national “state organ”, and is not a government forest, game reserve, national park, national road, river or water body or the sea up to the high water mark) belongs to the county and the National Land Commission manages it.

You may realise that this does not leave much for some counties – though land that has been allocated to somebody for a number of years (leasehold land) will come back to the county when the lease ends.

For Mombasa – where some feel that the port ought to be theirs – the situation is complex. Kenya Ports Authority is a national state organ – at least is created by national law. Whether it ought to be national depends on whether a “harbour”, which is functions of counties, includes a port. This may ultimately have to be decided by a court.

And how about Mama Ngina Park? Why does it not belong to Mombasa? One of the responsible bodies is the National Museums of Kenya – responsible for national monuments –because there are historic remains there. But where does the county responsibility for cultural activities, county parks and recreational facilities come in (Schedule 4 (4) of the Constitution)? Why is it for the national Ministry of Tourism to appoint a Management Board for this park – as Balala has done?

But if this park had been a county responsibility, would it have been able to spend 460 million shillings on developing it?

Other counties have resources within their boundaries – like oil, water, coal, and precious or semi-precious stones. These belong to the people of Kenya as a whole and are held in trust by the national government of Kenya for all those people - not just of the county. There may be room for some intricate legal arguments about the interpretation of the Constitution and Acts of Parliament like the Petroleum (Exploration and Production) Act – passed in 1984 before we had devolution.

But if resources of this kind do not, by the Constitution and law, belong to the national government, they do not belong to the county unless they are in or under public land. They would belong to whoever owns the land - “up to heaven and down to hell”.

FINANCE AND FUNCTION

The Constitution guarantees limited functions to counties, not much more than old local authorities did. It makes little sense for counties to demand more resources, whether through ownership or through the allocation of national revenue if they cannot spend it.

People like to point to the US and Canada and other federal systems, where resources such as minerals do not belong to the national government. But we should remember that when their constitutions were drafted no-one understood the full importance of things like oil.

Second, these two countries were initially formed of independent units that came together, giving up only limited powers to their new national governments. In Canada also most oil is in public land (meaning mostly in provincial government land).

In Nigeria, oil is a national asset, but states from which it is derived are entitled to a share of the revenue – the share being a cause of constant political conflict.

Kenya’s relations between national and county levels need to be approached in the light of our whole national picture, rather than what happens in other very different countries or very different governmental structures.

COOPERATION AND PARTICIPATION

Though county governments have limited formal functions, they are in many ways closer to the people than the national government. And the Constitution is clear that while the national and county governments are distinct they are also dependent on each other, and that their relations must be based on “consultation and cooperation” (especially Articles 6 and 189).

Formal laws about who owns what and what level of government has what powers, while they may need sorting out, are not the end of the story. Perhaps we need some laws to clarify them, and also to make it clear how functions may be transferred from national to county levels of government, or the other way round.

Our foremost devolution expert, Dr Mutakha Kangu, wrote in a recent report that “Exclusive powers cannot be exercised in the absolute discretion of the level of the government concerned. They must, however, be exercised in cooperation and consultation with the other level of government.” Yet, he says, “The national government in Kenya is currently undertaking major infrastructure development projects. There is, however, no evidence that any attempt is made to involve the county governments in decisions about these projects.”

Further, the Constitution requires public participation in all decisions. If a court could decide that changes the name of a local post office required public participation, should not the naming of a park?

There is a Devolution Policy, adopted in 2016. But not only has much of what the government committed itself to not happen, but the policy itself is very disappointing in failing to analyse what “cooperative” relationships involve. The Inter-governmental Technical Committee is perhaps trying harder.

The first requirement for a cooperative relationship is surely first of all attitude: a willingness to work together, both between governments and with the people. This is needed to save not just counties, but the country.