• In the harmonised draft, the CoE proposed that the country gets devolved units - eight regional governments and 74 counties - based on defunct administrative boundaries.
• In Naivasha, the ODM wing of the then Grand Coalition Government attempted to reinstate the regional governments that Kenyans had rejected during the 2009 public participation.
Image: FILE
On November 17, 2009, the Committee of Experts on Constitutional Review published the harmonised draft constitution proposing three levels of government.
This draft was put together after looking at all the previous documents including the Draft Constitution compiled in 2002 by CKRC (Ghai draft), the National Constitutional Conference of 2004 (Bomas Draft); and the proposed new Constitution of 2005 (Wako Draft).
As the Building Bridges Initiative rallies continue, there has been a debate on the introduction of another tier of devolution known as regional governments.
This is not the first time that the country is grappling with this suggestion which was first introduced in the independence constitution through Majimbo but was never implemented.
The third level of devolution was also in the Ghai draft and the Bomas draft but dropped in the Wako draft which went to a referendum and rejected by Kenyans in 2005.
The most recent attempt to introduce three tiers of government was during the last Constitution-making process in 2009 and 2010 when the CoE published the harmonised draft for public debate.
Unlike in the previous cases where the suggestion was popular with the public, this time Kenyans said that having three levels of government would be too expensive for the country.
In the harmonised draft, the CoE proposed that the country gets devolved units - eight regional governments and 74 counties - based on defunct administrative boundaries.
The eight regions were based on the former provinces with the 74 counties being based on the then-existing districts.
The CoE, which was chaired by lawyer Nzamba Kitonga, was however forced to revise this position in the revised harmonised draft which was put together after public participation.
According to its January 8, 2010 report on the revised harmonised draft, the CoE said that Kenyans had rejected the huge devolved government proposal.
"In accordance with the majority’s preferences, the levels of government are reduced to two: national and county. This responds to concerns about the role of regional government and the cost of administration," the report stated.
It added that for county government, the Districts enacted in 1992 by The District and Provinces Act were provisionally adopted as proposed counties.
As a result, the number of counties went down from 74 to 47 as currently constituted.
This new proposal was put in the revised harmonised draft that was presented to the Parliamentary Select Committee on Constitutional Review on January 8, 2010, ahead of the MPs' Naivasha retreat.
The CoE in its report also said that the regional units had been conceived to be large units better posed to apply checks and balances to the exercise of power at the national level.
"Without the regional level, there is, therefore, need for units that can be effective for this purpose, while at the same time, they have the capacity to, and, are able to provide services close to the people," the CoE justified the adoption of the 47 counties.
In the revised harmonised draft, the CoE also put in place provision on the review of boundaries that it said should be carried out by a specialised committee or commission.
In Naivasha, the ODM wing of the then Grand Coalition Government attempted to reinstate the regional governments that Kenyans had rejected during the 2009 public participation.
On January 26, 2010, the 26-member PSC was tackling the Executive, Representation and Devolution chapters in the draft.
The previous week, the team had agreed that there would be two levels at government - National and Regional - with a total of 18 regions.
However, on this day, ODM cleverly reintroduced the debate on the number of tiers that were needed to anchor devolution in the Constitution.
During the discussion, ANC leader, Musalia Mudavadi, then a member of ODM and Deputy Prime Minister, asked that the session discusses clarity on the agreed 18 regions.
At this point, the MPs had not agreed on whether the devolved units would be referred to as regions or counties in the text.
Mudavadi suggests that they pose and agree if what they were approving was about counties or regions.
In his view, counties and cities would be units in the counties and thus should not be the reference in the text.
PSC chairman Abdikadir Mohammed at this point asked Mudavadi to remember that an agreement had already been made on 18 regions and two levels of government.
According to the Naivasha Hansard, this opened up the debate on the tiers of devolution that would be incorporated in the Constitution.
ODM MPs among them James Orengo (now Siaya Senator) and William Ruto (now Deputy President) insisted that there had to be another tier below the regions.
This debate went on into the night with the PNU side led by then Deputy Prime Minister Uhuru Kenyatta (now President) insisting that there should be only two levels.
At one point, there was a heated argument after Orengo was accused by then Minister for Foreign Affairs Moses Wetangula (now Bungoma Senator) of misrepresenting the reasons given by the CoE for dropping one tier that existed in the harmonised draft.
Orengo had suggested that the experts said that the three levels proposal was widely supported which was not the case in the CoE report where they said most Kenyans opposed a bloated system.
The debate went on into the night with no resolution and at around 11.50pm, Mudavadi suggested that they adjourn and discuss it the following day.
The following day, after several hours of debate, the PSC finally agree to retain the suggestion made by the Committee of Experts.
At the time, it also emerged that MPs rejected the creation of regional governments in the fear that there would bee too many people wielding control at the regional level.
There was however the suggestion that the regions should only be put in place as planning units that effectively locking them out of any financial control.
But the greatest motivation to reject the regional governments came from the fact that ODM and PNU could not agree on the number.
ODM had maintained that there should be 18 regions with 45 counties while PNU wanted 33 regions but with no other level of devolution.
PNU MPs also rejected reinstatement of the devolution chapter in the harmonised draft on the basis that the distribution would leave their strongholds disadvantaged.
If the 8 regions and 74 counties had been maintained, PNU could have 7 counties in the Central Region, 4 counties in Nairobi and about 8 of the 13 counties under Eastern.
ODM at the time would have had 19 in the Rift Valley region, 12 in Nyanza, 7 in the Coast region and 8 in the Western region.
The struggle for regional governments in Kenya dates back to independence and would have happened earlier if Kanu and Kadu would have agreed.
In 1963, Kenya had adopted the Westminister system with Jomo Kenyatta as the Prime Minister several regional governments then referred to as Majimbo.
Though mistrust between Kanu and Kadu killed devolution at the time, the so-called regional governments had not been allocated any money.
And with the death of Kadu, the Majimbo system became moribund and therefore died naturally and would not be revived under Moi as Kenya was a one-party state.
The Ghai Commission attempted to introduce devolution in its 2002 draft.
Here their proposal was to have four levels outside the Central government - Village, Location, District and Province.
In 2004, the National Constitutional Conference where the Bomas draft was born refined the Ghai proposal and set up three levels - Regional, District and Location.
When the Bomas draft went to a Parliamentary Select Committee and evolved into the Kilifi draft before getting to Parliament which gave birth to the Wako draft that proposed a single devolved unit - District - outside the national government.
The Wako draft was rejected at the 2005 referendum.