Devolution forum gives glimpse into key content of referendum

I had the privilege of moderating a panel discussion during the sixth edition of the annual devolution conference in Kirinyaga last week, to discuss the future of devolution in the context of proposals to amend the Constitution. The premise of the discussion was that since the country might attempt a constitutional amendment before the next elections, there was need to consider how such an amendment would affect devolution. The idea of the discussion was to generate a stakeholder wish list which might be pushed to the constitutional reform process.

Participants in the panel discussion included Opposition leader Raila Odinga, Governors Kiraitu Murungi and Kivutha Kibwana, the co-chairs of a committee set up by the Council of Governors to consider its position regarding the proposed constitutional reforms and Senate Majority Deputy Leader Kithure Kindiki.

Raila used the platform to reiterate the position he first articulated during last year’s devolution conference in Kakamega, that the existing counties were too small in size and, therefore, not viable. He pointed out that most counties are currently negotiating the establishment of economic blocs made up of clusters of contiguous counties.

This, he said, was evidence that counties were already responding to a demonstrable need to work in larger formations and that consideration should now be given to recognising these blocs under the Constitution. According to Raila, this could be done by creating a new tier of government made of blocs of counties, as an intermediary between the existing county governments and the national government.

While Murungi and Kibwana, the representatives of the Council of Governors, indicated that their committee is yet to develop firm positions regarding possible changes that the constitutional reform might contain, it is understood that the governors who are currently serving a second term in office and are therefore ineligible for further re-election, are keen on proposals for a third tier of government which would cluster together a number of counties, similar to what Raila proposed. The alternative proposal by these governors is a removal of the two-term limit that the Constitution currently imposes on them.

In a strongly-worded statement, Deputy President William Ruto has since rejected any proposal to alter the size of counties and made a counter proposal to the effect of establishing county development funds that would, presumably, be controlled by county assembly members. It is easy to see that the debate as to whether or not to alter the existing county structure will become the most important point of divergence between whatever sides Raila and Ruto end up taking.

The question of the power of the National Treasury was also raised. In past error, Governor Murungi had coined the phrase “imperial president” in reference to the all-powerful president under the former constitution. During the panel discussion he coined a new phrase when referring to the National Treasury as the “imperial treasury.” There was substantial agreement that the concentration of bureaucratic power in the Treasury, which lacked countervailing checks, was a threat to devolution. A related issue is the concentration of power over the security forces at the centre. While there was agreement that these were legitimate issues of concern, there was no clear consensus about how they could be processed further, with Raila suggesting that a debate about the decentralisation of police powers might delay the process of building consensus on possible amendments.

There were also issues about which there was apparent agreement, including a view that more resources should go to the counties, both out of need but also a tactic for building public support for a constitutional amendment. There was also unanimity on the need to realise the gender equity rule, already provided in the Constitution but so far not realised because of the absence of an implementing mechanism. There was also consensus on the need to clarify the respective roles of county and national governments which are not always clear in the Constitution.

A related question is the management of the healthcare mandate, a function devolved to counties but one over which they have struggled. The need to provide constitutional recognition of health workers as the most important resource in the provision of healthcare was raised, as was the irony of governors seeking to perpetuate themselves in office beyond the two-term limit while also supporting schemes to turn health workers as casual employees. There was also a suggestion to create a health service commission to employ and manage health workers for county governments.

To overcome resistance to constitutional change from vested interests, it was suggested that consideration be given to deferring any amendments that might affect the tenure of existing office holders. Questions of process were also discussed but remained largely unresolved. This discussion was useful as it was the first meaningful opportunity to see what the content of a referendum, about which there is already so much talk, might look like.

- The writer is the Executive Director at KHRC. [e-mail]