Makueni chaos proof of MCAs gone rogue

Nairobi; Kenya: The liberal use of lethal weapons in a fairly normal political disagreement in Makueni County, coming shortly after the Migori shoe throwing incident and the Nandi County fracas are a serious indictment on our society generally and our leadership in particular. In all these instances intolerance has been elevated to levels previously unimagined outside periods of intense electoral contest. In true Kenyan character, we liberally condemn those events that threaten our cause whilst remaining studiously silent on those attacks that are carried out by our supporters. How shortsighted we are! Those flames of intolerance we gleefully fan will roast us sooner than we think.

But my focus today is not so much on the intolerance issues but on the undertones of the Makueni situation. I must start with a confession. Professor, now Governor Kivutha Kibwana, has been a friend for many years from the days when he taught us law at the University of Nairobi. I know him to be a man of high intellect and integrity completely intolerant of corruption and other shenanigans that accompany holders of high office. I always feel sorry for the Prof when I know the struggle he must undergo as Chief Executive in one of the latest entrants in Kenya’s predatory governance system; our devolved governments.

The best, though not the sole exhibit, of this predatory behavior is in our MCAs. Anyone who has watched the new county governments in their first season will acknowledge that they exhibit a serious structural problem that requires urgent rethink. In an attempt to emphasize the centrality of delegated sovereignty, our Constitution accorded significant powers to elected leaders at the county.

By dint of the Constitution, all appointments to senior county offices must be approved by the County Assemblies.

County plans and budgets must not just be approved but actually made by the same Assemblies since they retain the power to fundamentally alter budgets before approving them. It is on these two issues of appointments and budget approvals that many Governors, including the Professor from Makueni, have been embroiled in fights with the MCAs.

I recall that the first conflict in Makueni, which has resurfaced this year, had to do with the amount of revenue that would be allocated to the county assembly. At some point, the MCAs wanted a whooping Sh950 million allocated to them against a Commission of Revenue Allocation-recommended ceiling of Sh350 million. Herein lies a major structural problem; by law the Assemblies are the final determinants of the money allocated to them. Though the Governor can refuse to sign the appropriation law, everyone is aware that MCAs hold the ultimate trump card, impeachment. Consequently, many Governors would not dare risk a head on clash with their MCAs the way Kibwana has done. Instead, they look for ways to pacify the MCAs, including offers of numerous trips abroad.

Indeed what has saved Kibwana and many Governors is the mandatory involvement of the Senate in their impeachments. Unfortunately, the same protection does not exist for County Ministers. In most counties, any County Executive Committee (CEC) member for Finance who dares refuse accommodate the predatory habits of the MCAs, including refusal to approve imprudent expenditure, is quietly impeached. Aware of these risks, the average CEC Member either succumbs or is quietly sent home until a more acquiescing substitution is obtained.

I am not surprised that in the last week alone, about five Executive Committee members of Finance, including the Makueni one, have been impeached. This situation requires urgent intervention if the citizenry is not to be unduly disillusioned by devolution.

I was delighted to note the change in the Public Finance Management Act that gave legal weight to the CRA ceilings on budgets by the Assemblies, though the issue is vigorously contested by most MCAs.

There will now be need to review the role of MCAs in the budget process so that they become a budget approving, not a budget making organ. We must also find ways to protect the CEC Members from frivolous impeachments. Failing these protections, we will leave the resources of the county in the hands of a predatory lot much in the way we have done at the national level. There can be no greater threat to devolution.