Most Kenyans now agree that, despite the teething problems it has faced, DEVOLUTION is the best thing that ever happened to Kenyans since Independence. “Because of why?” asked a young child recently.
I will give you a few reasons.
First, you only need to go to Lodwar to realise that, for the first time since Independence, the people have seen a tarmacked road. Travel to Wajir, Mandera and Garissa, where health facilities and water services have brought fresh life to the counties, something that eluded the colonial government and independent Kenya. For the first time the "people in the North" can truly begin to say they are Kenyans.
But that is not all. Some parts of Nyeri Town could not dream of waking up and finding street lights on one or two years ago: Now they can. In many rural markets floodlights now make it possible for people to trade late into the night without much fear. Access roads have opened remote parts of Kisii from where people can now access ultra modern health services at Kisii Teaching and Referral hospital.
Second, DEVOLUTION has brought government closer to the people, not in terms of "crown power" as in the provincial administration of yesteryear, but in terms of political participation and service delivery. Whoever heard, in the colonial government and in independent Kenya, that something called "public participation" is important in policy and law making?
I give you a dramatic example. In the Parliament of 2013 to 2017, Jakoyo Midiwo and I decided to take the government to court stopping it from going ahead with the privatisation of the sugar industries. Our reasoning was very simple. The law prepared to privatise our industries had not been subjected to public participation. On that score, and that score alone, the court gave us an injunction stopping the exercise until public participation was carried out. The participation then gave people the opportunity to bring up many good reasons regarding how inadequate the law was. And hence the need to rethink and retook at the whole process of revitalising the sugar industry.
us take that scenario to the level of DEVOLUTION where the counties are now more than aware that any policy or law proposed for execution must be subjected to public participation. This, no doubt, demonstrates very clearly that one of the major outcomes of DEVOLUTION is the political empowerment of the people. For the first time since independence the dictum democracy is "government by the people" is not a mere rhetoric: it has become a reality.
Fourth, it has made it possible for representative institutions of government to come nearer to the people. The county assemblies are truly grassroots representative institutions since they allocate local resources to the people by authorising the county governments to spend money in a particular way.
Although the national government has retained certain functions that counties ought to be performing, the people rarely make any distinction between the two levels of government at the grassroots. As far as the people are concerned, when things go wrong in a primary school it is the GOVERNOR they look for. When hospitals lack medicine the county boss must answer.
What does this all mean?
It simply means that in our current discussions for further constitutional reform, devolution must, of necessity, remain a component part of the reformed structure of government we intend to create. The question we need to ask ourselves is: What should be the most appropriate structure and content of sustainable devolved government in Kenya now and into the future?
In the newly minted devolved system of government after the referendum I want to envisage a truly robust system of devolved government.
Vihiga governor Wilbur Ottichilo, has always been candid enough to accept that Vihiga County as it is
cannot possibly compete with the counties of Kisumu or Kakamega in terms of marshalling internal resources for development. It has a much smaller population and a smaller base of agricultural produce. Lamu falls in the same category, and many more could be identified. Even those which are apparently big may do better in terms of infrastructural development were they to be grouped into bigger entities.
The creation of regional blocs is a logical response to dealing with this problem of "economies of scale" in enhancing the potential for development of counties. The new Constitution could go further to formalise regionalism in law without necessarily dismantling the counties as they are
today. A perfect example to use for comparative purposes is states and counties in the US. Other jurisdictions could also offer useful comparative lessons to learn from and creatively adopt.
Schedule 4 of the Constitution will also need to be revised and the division of functions between the counties, the regions and the national government spelt out with the true spirit of devolution taken fully into account. I remember when I was admitted into Form One at the Alliance High School in 1962, I received my bursary from the District Education Board of the then Central Nyanza District.
There were two organisations that ran primary schools then: The church and the local authorities. Why primary school learning should now be controlled by the national government beats my mind. The ideal situation would be for basic education from ECD to Form Four to be handled by devolved government as is in the US. This, indeed, would be in keeping with the spirit of devolution.
One other important reform issue would be implementing the current constitutional principle of allocating resources to any level of government according to the functions it performs provided that at least 25 per cent of the national budget is left to the national government to perform its functions. This would mean a radical rethinking of the division of labour between the national government and the other two levels, especially regarding issues such as policing, traffic control,
tertiary institutions of education etc.
The current dogma that there are certain "sacred" functions that can only be performed by the national government needs to be discarded. For example, who knows better about border conflicts between Nandi and Kisumu counties better than the respective governments? Why must governor Stephen Sang and myself identify the problem and then turn around to look for a solution from the national government? Wouldn't we do a much better job were we to be empowered by the intelligence and police services under our control?
All I am craving for is a little bit of thinking outside the proverbial box, if we are to improve on the structure, quality and content of devolved governance as we undertake reflections on constitutional reform. Over to you the Building Bridges Initiative team.