Is there someone planning to kill devolution a second time?

In September 2012, this column suggested that efforts were abroad to kill devolution in Kenya. Yet we had not even given life to devolution. There were widespread calls, at the time, to abolish the Senate. Some people wanted the Senate removed from the Constitution even before the elections in March 2013, that gave it life the following year. And indeed, last year at the division of revenue, the National Assembly, the Attorney General’s Office and the Presidency ignored the role of the Senate in the process. Add to this the fact that the three authorities – without any consideration of the Senate whatsoever – have since made 23 laws that touch on devolution, and the fears begin coming back. Is devolution in trouble?

I wrote in 2012, “ . . . There have been ominous suggestions by some Members of the National Assembly that we should amend the Constitution to abolish the Senate, even before we give it life. But most telling have been intermittent pronouncements from The Treasury that the country might not find the revenue to run county governments. While the counties are expected to generate income of their own as in the old days, the original oxygen must come from the national government. Could this be where the trap to kill devolution is lying in wait?”

The column read further, “Are we witnessing, today, a return to 1964? Could the mounting unrest in parts of the country be part of a larger sinister scheme to defeat the Constitution? The only certain thing around us today is uncertainty, laced with suspicion, fear and power struggle. Our first experiments with devolution collapsed in November 1964, paving the way for a 46-year frustration of the Kenyan dream. Is it about to happen again?”

It is often forgotten that Kenya went to independence in 1963 on a devolved Constitution. Yet in under a year, devolution was dead. My position remains that those who have enjoyed the draconian privileges of a dominant centrist State are hostile to devolved government. They will do anything to kill it – again. But why is devolution so important? Why do we fear that it could be killed again? If Kenyan communities and regions are to eventually diffuse and minimise ugly ethnic tensions, animosity and violence, functional devolution is the only viable way out. Power, resources and opportunities at the centre must be decongested in the interest of national cohesion, peace and and stability. In the event that devolution fails a second time, we may need to brace ourselves up for the Apocalypse.

Kenya’s devolution began with the Local Native Councils (LNCs) in 1924 and 1925, in what is today Nyanza and Central Kenya. It came in response to political agitation in these regions. Central Kenya was agitating for the return of the stolen lands. Nyanza agitated against the colour bar. The Abaluhya and Luo people of the Lake Basin are said to have wanted to enjoy the same rights as the Europeans. They wanted, for example, to wear neck-ties like the Europeans and to patronise the social places that Europeans patronised.

It is instructive that the colonial government saw the native councils as safety valves in the face of mounting socio-economic and political tensions. In the volume Descent from Chereng’ani Hills, Kipkorir says that the councils were intended “to channel African political energies into non-confrontational avenues.” They would do this by bringing some degree of development to the natives. Not too long afterwards, the councils extended even to those parts of the colony that were “non-confrontational,” borrowing from a model that seemed to be working very well in Fiji. Yet does this logic escape us today?

Like the case in the 1920s and in the lead up to independence, devolved government in Kenya today is the outcome of agitation to decongest power, democracy and development from the centre. Marginalisation of parts of the country began with mutilation of the Independence Constitution in 1964, to kill devolution. It was crowned by the ill-advised Sessional Paper No. 10 of 1965 on “African Socialism and its Application to Planning.” It took Kenyans 46 years of relentless effort to eventually restore a devolved Constitution. But within days, it was being fought. The strategies have been the same as those that were employed in 1964. Prof Daniel Branch has reminded us in Kenya Between Hope and Despair, “Jomo Kenyatta’s strategy to destroy the regional assemblies and force the collapse of the Constitution was simple. While waiting for the legislation revoking devolution to pass through Parliament, Kenyatta starved the regional assemblies of the revenues they needed to operate. By July 1964, the bank accounts of the regional assemblies were empty.”

It is within this prism that we probably ought to interpret the uneasy relationship between the county governors on the one hand and other parties that have from time to time thrown salvos at the Governors governors to appear before a Senate committee to answer questions on finances. The governors say they have sent their accounting officers who have all the answers. The senators say, “No, it is you we want to talk to, otherwise we freeze funds to your county.” Only time will tell whether the senators want the information or they want to humiliate the governors. It looks more like the latter.

Even more worrying is the governors’ statement that devolved functions have not been followed by devolution of funds. Conversely, some functions that are supposed to be devolved have for some strange reason not yet been devolved. If I am hearing them right, the governors are saying that someone is keen to kill devolution a second time. They are saying, further, that in order to protect devolution, it is imperative that the Constitution is changed to ensure that both the devolved functions and the money required to support them will reach the counties. If 45 per cent of audited Government revenue is devolved, those at the centre will have no choice but to let go of the devolved functions.

This would seem such a basic matter. Why does it need a referendum as the governors have asked? I have personally raised this question with a number of governors. Each concurs that it does not need to go to a referendum. However, they accuse the National Government of bad faith. That even when issues have been discussed and agreed, the National Government has gone back on its word. I have not talked to the National Government on this. I do not, therefore, have their version of the story.

Yet we must ask again? Is someone trying to kill devolution again? Why do we keep hearing the same vibes that our progenitors heard in 1964? This week Mandera Senator Billow Kerrow laboured with statistical explanations of “why the 45 per cent devolution of funds county chiefs are asking for is impossible.” Kerrow says we cannot devolve 45 per cent of audited national revenue. Yet other arms of the same Government say they are already devolving 43 per cent of audited revenue. So, is someone being cheeky or are they just ignorant? More significantly are there plans to kill devolution a second time?