KATIBA CORNER

For policies to succeed, they must be constitutional and based on careful thought

In Summary

• Are these policies really based on evidence, participation, evaluation, joined up thinking or are they public relations exercises, prepared by consultants, as much for the consumption of foreign donors as much as for Kenyans?

• Effective policymaking requires close relations between the public service and the political decision makers.

'Llipstick lines” intended to demarcate bus rapid transit lanes along Thika Super Highway
'Llipstick lines” intended to demarcate bus rapid transit lanes along Thika Super Highway
Image: COURTESY

Policymaking is a core thing that governments do. Someone defined it as making change happen in the real world.

And some have suggested that effective policymaking needs to be evidence-based (which involves using, and, if necessary, carrying out research) and forward-looking which means taking a long-term view of the likely impact of policies basing that on good information.

It should be inclusive, taking account of the impact on everyone, and involving those affected in the policymaking. It should be innovative and creative (old ideas have clearly not worked so new well-founded, ones are needed). It should be “joined up”, which means not taking place in separate compartments of government without taking account of what other sections know, need and can contribute. And it should involve evaluation of, and learning, from the past.

It is not a simple matter as the Ministry of Health said in 2016. “Public policy-making is a political and complex process, influenced by many actors and factors and different kinds of information and priorities. Research evidence has to compete with many other factors and information to influence policy decisions. These other factors include politics, ideology, values, power dynamics, available resources, interests, habits, and traditions.”

It is evident that at least the public service in Kenya has a good understanding of how policy ought to be made. It recently set up a Research and Policy Analysis Unit. Kenya’s publicly funded think tank, Kippra [The Kenya Institute for Public Policy Research and Analysis] runs courses on public policymaking.

KENYAN POLICY MAKING

A policy is not just a document — though Kenya has many documents labelled “Policy”. These include on health, land, climate change, data protection, human rights, devolution — to mention a few — plus a large number of draft policies. Most of them are full of good-sounding phrases, and cumbersome charts of what is planned; who is to do it, with indicators to be used to assess how far the policy is being implemented.

Whether these documents are intended to achieve anything is not always clear. Sometimes implementation of policies seems agonisingly slow. In the Devolution Policymaking regulations under various Acts of Parliament, particularly the County Governments and Intergovernmental Relations Acts figures prominently. Yet apparently no regulations have been made under either.

And it is not clear how far anyone is carrying out the exercises needed to be able to evaluate the policies and their implementation — providing the data to use all those indicators.

The Kenya National Commission on Human Rights has commented on the “proclivity of developing additional policies and laws to address socioeconomic and political challenges that could be effectively addressed by implementing the existing policies and laws”.

Are these policies really based on evidence, participation, evaluation, joined up thinking or are they public relations exercises, prepared by consultants, as much for the consumption of foreign donors as much as for Kenyans?

Consider Nairobi Governor Mike Sonko’s efforts to ban matatus from Nairobi CBD, soon followed by the equally farcical effort to have car-free days in the city.

Then the “lipstick lines” intended to demarcate bus rapid transit lanes. How about the Huduma Namba project about which there is so much doubt, and which a court has limited the scope of? How about the plastic bag ban – now they are having to ban the agreed substitute, which has been suspended by a court until proper standards are established. All too often, it seems that government policies have to be reversed, or delayed, or deadlines extended, or quietly dropped.

A typical shambles has been the adoption of the new curriculum. Shall we, shan’t we, move ahead with it? Are the teachers properly trained or not? And as for the laptop for every child — the less said the better.

The Auditor General’s reports reflect policy failures. Yes — much of what he uncovers is related to corruption. But the “no value for money” report, which was substantial for some ministries, is as likely to result from poor policymaking as it is from corruption or poor management.

The most dramatic has of course been the SGR. We all know that the World Bank thought this was a poor policy decision. It has led to other poor decisions — like forcing importers to use the SGR, not to mention borrowing huge sums of money, not only unwisely but illegally (in view of the Public Finance Management Regulations).

Some of these decisions, like those about traffic in Nairobi, hardly merit being called “policy”. They result from decisions, but decisions that clearly completely lacked evidence, consultation, joined up thinking and evaluation. Indeed they seem to have lacked any real thought.

All too often important policy decisions, big and small, seem to be made on the basis of emotion, prejudice, political expediency, reluctance to face up to realities, desire to make a dramatic gesture and to be seen to be doing something (anything) about a problem, and sometimes on the basis of sheer laziness — not being prepared to take the time, trouble, and thought to reach a sensible conclusion.

Instead of this, we need the policy to be made on the basis of careful thought: Do we have a problem? Why do we have a problem? Have we tried solutions in the past and - if they have failed - why have they failed? Will the solution we propose work? How will it work for the most vulnerable people involved? Will it have unintended consequences? How much will it cost?

Decisions that in some places would take years of careful research, debate and reflection are taken with very little if any, as David Ndii commented about the bus rapid transit.

WHAT DOES THE CONSTITUTION SAY?

The most direct provision in the Constitution on policymaking is Article 10: National values and principles.
It actually says they must be applied by everyone, including all State agencies and public officers “whenever they make public policy decisions”.

The values include people’s participation, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalised, good governance, integrity, transparency, accountability and sustainable development — as has often been stressed in this column.

If properly applied, they form a very firm foundation for sensible policymaking. And we can add a few other provisions of the Constitution, notably Article 232 on values of the public service, stressing “efficient, effective and economic use of resources”, as well as the provisions on public finance including prudent and responsible use of public money.

A quite extraordinary amount of effort, and no doubt money, has been expended on trying to achieve the realisation of these values. There is a special Act of Parliament, a special unit in the office of the President, annual reports by the Public Service Commission on realisation of the values that form the basis for a huge annual report by the President on the same theme, as required by the Constitution. (How many people actually read it? Does the President?).

Public participation attracts a lot of attention — and is crucial for effective policymaking. But it is not enough, and the other constitutional values surely also call for precisely the sort of thoughtful, evidence-based, systematic policymaking, grounded in reality, that the received wisdom calls for. The prudent use of public money alone demands thorough evaluation of what has gone wrong in the past, and what measures will be effective to put it right. Otherwise, money spent — including on the policy-making process itself — is bound to be wasted.

CONCLUSION

Effective policymaking, it has been pointed out, requires close relations between the public service and the political decision makers. The public service is trained in this. Yet do the politicians realise this? Now that we have not only a politically appointed Cabinet Secretary, and very often a politically appointed Principal Secretary at the head of each Ministry, but a politically appointed Cabinet Administrative Secretary in between them, how much account is taken of the expertise of the long term civil servant?

And how many so-called policy makers are in violation of the Constitution?