MPs’ sinister plans to change law out to cripple devolution

By Abdille Mohammed  
letters@standardmedia.co.ke

The concept of devolution is a key pillar of  the Constitution of Kenya 2010. It gives powers of self-governance to the people and enhances their participation in the exercise of the powers of the state and in making decisions affecting them. It has further facilitated the decentralisation of state organs, their functions and services from the national to the local levels in order to ensure close contact and proximity between decision makers and consumers of the decisions.

Of late, however, there have emerged differences between governors and legislators on issues of devolution. At the core of the conflict are allegations of misappropriation of funds by governors. As a result of this, a flurry of Bills is now before the National Assembly and the Senate. The legislators opine that these Bills are intended to curb the excessive powers of governors so that they are more accountable to the public on the decisions they make and the resources they use. However, close scrutiny of the Bills reveals a hidden agenda. They are intended to cripple devolution and centralise exercise of the powers of the state at national level.

A classic example is the intention to create County, Constituency and Ward development boards. These boards will be chaired by the Senator, MP and County Reps respectively. Each of these boards will receive funds from the national government and legislators will be responsible for use and disbursement of the same. Further, there is an attempt to hive off Equalization Fund from the counties and lump it with CDF and put it under the direct management of legislators!

These Bills are in fundamental conflict with the Constitution. The law has been crafted in such a way that conflict of interest is avoided. MPs are not allowed to legislate on issues that directly or indirectly benefit them. Thus, they cannot legislate to create institutions in which they also provide an oversight role.

There is already a controversy on legality of the CDF. The legislators created this fund. They are the patrons of this fund. They handpicked the members of the board of this fund. In some constituencies, CDF committees are handpicked and not constituted as per the requirements of the CDF Act. Ironically, MPs also oversee this fund. They, therefore, assume both executive and legislative functions at the same time. This is a constitutional nullity and breeds corruption.

What these Bills intend to achieve is to further compound this anomaly. But worse still, the Bills fundamentally affect devolution. Devolution has given executive mandate to the governor as chief executive of the county. The county is a distinct government with a parliament, cabinet, chief officers and a civil service. These powers are slowly being whittled by MPs without the input of the public.

Take the case of the County Development Boards; the senator whose role is well defined in the Constitution becomes the CEO of the board. The governor who derives executive power from the public becomes a secretary and bystander in the decision-making of the county. Further, there are rafts of laws that guide county governments. Counties are expected to have sectoral plans, Mid Term Expenditure Frameworks and County Integrated Development Plans.

Development of these plans requires public participation through the relevant departments of the county and committees of the county assemblies. How senators will ably oversee these executive functions while at the same time discharging their legislative roles at national level will be a difficult argument to ponder.

MPs should be aware devolution is a baby sired by Kenyans. Many Kenyans have lost life and limb for the sake of devolution. It will be improper for MPs to tamper with laws and leave Kenyans with a shell for devolution in the pretext of taming alleged recklessness of governors. Legislators should exercise their oversight role and use constitutionally-established institutions to bring to book governors who may have misappropriated funds. They should strengthen devolution rather than focus on amassing power and influence at the expense of Kenyans.

Governors should also be aware that devolution faces a real threat. They should organise nationwide rallies to sensitise the public of this threat. Governors should team up with county assemblies and chart a roadmap to save devolution. They should demand participation of the public on any changes in law that touches on devolution through a referendum.

The writer is a member of Wajir County Public Service Board