• The reason behind the current controversy is more political than it is technical from legal and economic perspectives.
• It is not available to the Senate, for a instance, to discard the recommendation of the CRA and replace it with an arbitrary arrangement
Under Article 217 of the Constitution the Senate is required to determine, by resolution, the basis for allocating among the counties the share of national revenue annually.
The first basis was approved by the 10th Parliament in November 2012 and was used to share Sh956,736 million for the financial years 2013-14 to 2016-17.
The second basis was approved by the 11th Parliament in June 2016, and used to share revenue for financial years 2017-18 to 2019-20 amounting to Sh932,500 million. It is now the turn of the 12th Parliament to determine the third basis that will apply over the next five financial years.
By all indications, the Senate has set out to perform its constitutional duty in a rather messy and escapist way and things are bound to get muddled-up by the time the Senate’s resolution is presented to the National Assembly for approval in accordance with Article 217(5) and (6).
In my view, to understand the deepening controversy over the determination of the third basis, we need to bear in mind five things. For starters, when the 10th Parliament determined the first basis for revenue allocation, the MPs’ terms had virtually expired and the campaign season for the March, 2013 General Election had commenced in earnest.
Moreover, the senior politicians aka community spokesmen were too pre-occupied with the presidential election to care much about the implications of the formula. In this scheme of things, only politicians from Northern Kenya were truly pre-occupied with the details of the first formula.
Second, the 11th Parliament decided the second revenue formula in June 2016, when political positioning for the 2017 General Election was just starting. By then, it was becoming obvious that revenue sharing was a consequential matter and generally populated counties in Central and Western Kenya had been disadvantaged by the first formula.
Third, for the financial years 2013-14 to 2019-20, during which nationally raised revenue has been shared among the counties, it has become apparent to rational people that the revenue formula is a consequential thing with far-reaching socio-economic implication.
For example during this seven-year period, Bungoma, with a population of 1,670,570 according to the 2019 Census, received Sh55.4 billion, whilst Wajir county with 781,263 people received Sh51.7 billion.
Similarly, Migori and Machakos, with a population of 1,116,436 and 1,421,932 received Sh41.4 billion and Sh48.4 billion respectively, while Kilifi with 1,453,787 people and Mandera with 867,457 people received Sh58.6 billion and Sh63 billion respectively.
Fourth, seven years since the onset of devolution, a consensus is emerging among major political actors that sooner or later the county governments’ share of revenue raised by the national government will have to be doubled or tripled from the current minimum of 15 per cent. This means by the 2021-22 financial year, the amount of revenue being shared among the counties might increase from the current Sh320 billion to Sh600 billion plus.
The fifth observation relates to the Fourth Schedule, which assigns to the county governments the functions of agriculture, health, county transport and commerce.
Besides education, which is assigned to the national government, the functions relate to the day-to-day concerns of ordinary citizens. Therefore, even if the national government were to discharge its functions with maximum efficiency, it would amount to very little unless a given county had the means to deliver on its people-based mandate.
In other words, Wanjiku and Atieno would be better off with a capable county government than a more capable national government. This observation partly explains why President Uhuru Kenyatta gets minimal applause for the major public investment projects such as SGR, port, highway and pipeline developments because the impact of such projects to ordinary poor is minimal, indirect and often remote.
SENATE CAN'T DISCARD CRA RECOMMENDATION
Viewed against this background, it bears emphasis that the Senate of the 12 Parliament is not permitted by the Constitution to abdicate the responsibility to determine the third generation revenue formula merely because the outcomes of the recommendation of the Commission on Revenue Allocation is not politically palatable or offends historical prejudices.
It is not available to the Senate, for a instance, to discard the recommendation of the CRA and replace it with an arbitrary arrangement that guarantees palatable outcomes precisely because Chapter 12 on Public Finance and particularly articles 215 to 219 on revenue allocation exist to prevent such arbitrariness in sharing of financial resources.
When all is said and done, however, I believe the reason behind the current controversy is more political than it is technical from legal and economic perspectives. Truth be told, the ghosts of Sessional Paper No. 10 of 1965 have been woken to justify a revolt against Article 217 of the Constitution because it has seemingly failed to yield a formula that gives Kakamega, Kisumu and Elgeyo Marakwet counties additional funds without giving more money to the “rich” Mt Kenya counties.
This is the elephant in the room: That we must confront to resolve the controversy with more objectivity, less elite hypocrisy and devoid of philistine patriotism.
On a normal day we seem to have a general consensus that Kenya is a poor country and statistics seem to say as much. To my mind, Kenya is a poor country precisely because the majority of its citizens are poor and we have no Dubais and Silicon Valleys within our shores. No doubt, some people and communities are poorer than others but differential in degrees of being impoverished does not justify to describe the less poorer individual or community as rich. In all fairness, there are no poor and rich counties or poor and rich communities in Kenya.
MANIPULATION OF NORTHEASTERN NUMBERS
On August 31, 2010 – barely a week after the promulgation of the Constitution – then Minister of State for Planning Wycliffe Oparanya released the report of the 2009 population census.
In the statement, Oparanya cancelled the results for eight constituencies and ordered a repeat of the exercise to verify the cause of unusual population patterns and incredible variance of the enumerated results from the projected ones.
The results of Lagdera constituency (whose inhabitants are mainly Ogaden Somalis) showed a variance of 37,426 people, while Wajir East, Mandera Central, Mandera East and Mandera West, which fall within the Degodia belt of former Northeastern province showed a variance of 855,442 people. The three constituencies of Turkana county showed a total variance of 202,943 people.
When the results for the 2019 census exercise were released, they confirmed Mandera and Turkana counties do not have as many people – poor or marginalised – as the fraudulent census of 2009 had shown.
The direct consequence of this manipulation of population figures is that counties have for the last seven financial years received funding disproportionate to their population. Specifically, Mandera has received almost double allocation based on ghost population figures.
Factoring in all these matters, I cannot countenance for a fleeting minute the notion that the Somali are less poorer than the Luhya and the Luo communities. Therefore one could not help but marvel when Bungoma Senator Moses Wetang'ula offered to surrender some of the revenue allocation to his county under the CRA formula to Wajir, despite the fact that since devolution, Wajir has received double the allocation of Bungoma.
This is in spite of the latter having double the population.
Tragically, the political and professional elite from Western Kenya do not seem to see or acknowledge how their people are being played in the struggle for devolved resources. In popular political discourse, you are likely to hear about Sessional Paper No. 10 of 1965 and narratives of marginalisation from Western Kenya elites and commentators rather than those of Northeastern. To be sure, the Northern Kenya elite abhor the tag of poverty and marginalisation and they would rather brag about their grand plans to dominate the property market and commerce in Nairobi and the East African region.
Thus between the seasons of determining the revenue sharing formula the Western Kenya elite carry the flags and banners of poverty, marginalisation and the infamous sessional paper but immediately CRA hands over its report on revenue sharing to the Senate, they hand over those banners to the Northern / Coastal elites.
I should be forgiven for confessing here that I consider it foolish for anyone to keep shouting about Sessional Paper No. 10 of 1965 in political rallies and funeral ceremonies and the day he is invited to the dining table to share the cake of marginalisation, he forfeits his rights to representatives of other marginalised communities.
I further confess that the current controversy would end immediately the Western Kenya elite demanded to be handed back the flags and banners of poverty and marginalisation being flown in the Senate by their counterparts from Northern Kenya and Coastal.
*The writer is a constitutional lawyer ([email protected]).