• The BBI report has no greater status than the endless existing reports by committees and consultants over the years, which have languished on shelves or in computers.
• They languish because politicians are not interested or don’t find them of benefit to themselves.
Devolution is supposed to be about inclusion – recognising diversity, involving the people and protecting the interests of the marginalised (Article 174).
Arguably the Constitution as adopted is more exclusionary than the Bomas draft, because — rather than including an intermediary level of government — it creates only the 47 counties, which have a heavy element of ethnicity in their make-up. The Constitution, however, also insists, in various ways, that minorities within counties get a fair deal.
At an early stage of the BBI process, ODM leader Raila Odinga used to talk a good deal about the Bomas draft, including how he thought that intermediate level of governments (called regions) was a good idea. He thought the larger units would be more attractive to investors.
There is nothing in the constitutional amendment Bill about this, and the BBI final report merely speaks of counties being encouraged to form economic blocs – which they are already doing.
One thing that disappeared between the report and the Bill is Nairobi. The report would have put into the Constitution the arrangement that now exists under which the national government has taken over much of Nairobi’s functions. Why is not explained.
This column has suggested before that the Bill (and the whole BBI) is really about more jobs for a certain class of politicians, on the basis that this will lead to peaceful elections. The rest is sugar coating. Where devolution is involved, we can see how an appeal is made to governors and MCAs.
MCAs will welcome the chance to become county executive committee members. Governors may welcome it too, because they might be able to placate a few potentially troublesome MCAs by making them executive members.
MCAs will love the Ward Development Fund. Many of them seem to think that their job is overseeing local projects. Governors may be less keen since five per cent of the county revenue, at least, would be assigned to this fund – so less for the governors and their executives to control, take credit for, and perhaps worse. Indeed some counties have already not been spending much more than five per cent of their revenue on development.
There is a reluctance to accept that a county has a government, which needs to operate with the checks and balances of a government. The provision on the Ward Development Fund is an example. Arguably it is a bad idea – and currently unconstitutional. But if you believe it may be a good idea, why not let individual counties decide whether this works for them or not?
MORE MONEY FOR COUNTIES?
More money for counties is gladdening the hearts of government and many people in the counties. Instead of a minimum of 15 per cent of the national revenue being (supposedly) earmarked for the overall counties’ share through the 'equitable share', it is to be 35 per cent.
But it won’t happen. For one thing, the national government must cater for the enormous debt it has been building up.
Another issue is the responsibilities of each level of government. On one account, the national government in 2016 had 180,600 public servants plus 297,800 employed by the Teachers Service Commission. There are others, too, but it is not clear which have to be paid from the national government revenue. These two groups anyway total 478,400 people.
Counties, on the other hand, have 118,900 public servants — or a quarter as many as the national government. Four times the employees indicates a corresponding financial – and gap not only in salaries: they all work in buildings, use equipment, electricity and so on.
And the national government does genuinely have responsibility for some large expenditures – notably the military, the police, schools, big roads, railways and airports, courts and various other public institutions.
The Treasury already fudges the figures, using a concept of shareable revenue which does not appear in the Constitution. It will simply fudge some more. In the present dire economic situation caused by the pandemic, you can be sure that 35 per cent will not look very much greater than 15 per cent.
This approach violates a fundamental principle of devolution: that finance follows function. Yet the BBI does not discuss what counties are supposed to do with their extra money. We know that some counties’ capacity to spend what they get already is limited. Admittedly the unreliable flow of money from the Treasury does not help.
LESS MONEY FOR NEEDY COUNTIES
Commentators have begun to note the most worrying proposed constitutional amendment. The BBI seems to want (‘seems’ because the wording is unclear) no county to get, by way of equitable share from the national revenue, more than three times per person what any other county gets per person.
This is for the 'one-person, one-vote, one-shilling' brigade, prominent in former Central province, but would benefit better-off counties generally. And it would be disastrous for the poorer and less densely populated.
These tend to be the counties that have been neglected over the years, and fall far behind in development and statistics of health, education, etc. They still have to run the county governments, they need more catch-up with county roads, and they have less capacity to raise money from their own counties.
This is a completely irresponsible proposal by the BBI. Allocation of resources in a devolved country is always a sensitive matter, and can tear a county apart. They have taken an important function away from the expert Commission on Revenue Allocation, and the associated democratic and participatory processes, into their own inexpert and politics-driven hands.
The make-up of county assemblies would not change much. Extra seats (for gender purposes) remain, as do seats for inclusion of marginalised groups.
Currently, the number of seats each party gets depends on how many ward seats they have won. BBI amendments would make it depend on how many votes each party received. So a party that won 30 per cent of the votes but 50 per cent of the seats (which can happen in our system) would now get 30 per cent of the extra seats not 50 per cent.
The most peculiar change is – as in the National Assembly proposal – about the gender seats. They will not come from a party list – which was published before the elections and you could factor it into your voting choice.
They would come from the defeated candidates for ward seats – the best loser principle. So the IEBC would list the unsuccessful women candidates (putting those who got the most votes at the top). Then the number needed for each party would be chosen. Some wards would thus have two people in the assembly.
Maybe the new rule that parties must have no more than two-thirds of their candidates from one gender would help – and it would not matter that this arrangement ends after two more elections.
OTHER VERBIAGE ON COUNTIES
The BBI second report has a great deal about counties. For example, it speaks of the need to fully transfer to the counties functions that have not been completely transferred, including those carried out by parastatals, improving statistics, setting guidelines for how many people a county may employ, dealing with county boundary disputes, “more shared development and dialogue projects by communities that have had histories of conflict” and dealing vigorously with county-level corruption.
Many of these ideas will appeal, though a lot of this is very vague. It is important to realise that by signing the popular initiative, or by voting in a referendum, if and when we get to that point, you would be doing nothing to ensure that these things are followed up. Few of the ideas are new. Many have been in earlier reports, and no doubt endless documents within the public service. Some are in the Constitution already.
The BBI report has no greater status than the endless existing reports by committees and consultants over the years, which have languished on shelves or in computers. They languish because politicians are not interested or don’t find them of benefit to themselves. Why would the BBI change those self-interested politicians?
All that a referendum will change is the formal written provisions of the Constitution.