Devolution ministry is neither a supervisor nor prefect of counties

Nothing betrays the fundamental disrespect, nay contempt, for the principle of devolved government like the circular issued by the Ministry of Devolution a week ago.

The circular was ostensibly intended to “tame” excessive travel by county officers, in particular Members of County Assemblies. For the avoidance of doubt, I believe the amount of travel by public servants at both levels of government, including MCAs, is distressing.

On most occasions, travel by MCAs, particularly foreign, is nothing more than per diem mobilisation. This piece is therefore not about the issue of taming excessive travel by MCAS, who are unfortunately the most visible symbol of this wastage. Far from it.

The issue is that whereas there is no dispute that travel is a malady, the cure for it is not a breach of fundamental constitutional principles as the circular has purported to do. The truth is that if we accept such a fundamental breach of the law for “good cause”, we sanitise constitutional violations against devolved governments for all time, and it will form the philosophical justification for more ominous attacks on devolved governments in future.

That is a slippery slope we must not allow ourselves to get on. For those not in the know, on October 15, the Devolution PS issued a circular listing a host of requirements that any MCA seeking to travel would need to meet before their travel could be approved by the ministry.

The requirements included a justification for the travel, submission of documents showing approval of the travel by the county bureaucracy and budget allocation for the trip, a statement on the benefits of the trip to the county and others.

Admittedly, these are fairly reasonable requirements. The fundamental problem is not with the requirements; I can actually think of a few more. The unacceptable violation arises in the requirement to provide these justifications and documents to the Devolution ministry, which would then determine whether travel is allowable.

In that one circular, the ministry converted itself into a supervisor of counties, much in the way that the old Ministry of Local Government supervised local authorities. The ministry chose to ignore the clear provisions of, among others, Article 6 and 189 of the Constitution which recognise the distinctive nature of county governments and requires the national government to respect the constitutional status of county governments and their institutions.

The advisers to the PS must bring it to his attention that constitutionally, county governments are governments, granted within one nation. They are not an appendage of the national government. They have autonomy to make and execute decisions within the areas granted by the Constitution.

One of those areas is to decide how to spend their budgets within the parameters provided in law, not in ministry circulars, unless those are founded in law. They do not report to the Ministry of Devolution. Where they fail, there are structures of accountability including Senate oversight.

Outside the counties, there are a plethora of entities to whom they are accountable especially on expenditure. The Controller of Budget and the Salaries and Remuneration Commission (SRC) have a constitutional oversight role over counties and have issued several guiding circulars on travel, training and related allowances.

If there has been breach of these circulars, or if these entities have failed, the answer cannot be to ignore constitutional principle. The end cannot justify the means. 

The answer is to hold the violators accountable and to strengthen the power of the oversight institutions. Even if it was agreed that this matter needed emergency management, in a properly functioning devolved system, the proper thing would have been to handle it through intergovernmental structures where principles would be agreed and signed to by both levels of government. This is what builds trust and ensures that governments are working in harmony.

This prefect attitude will not fly as it distracts the attention from the grievous problem to wrongly applied solutions. The citizenry surely deserves better.

The writer is an advocate of the High Court of Kenya.