Whatever happened to the progressive Constitution that was to be the panacea for all the country’s ills? Decades of struggle and debate gave birth to the 2010 Katiba, but was it a stillbirth?
Has the Constitution failed Kenyans or have Kenyans failed the Constitution? Have the public and the three arms of government let their guard down, relaxed and settled for half measures in its implementation?
One gets the distinct impression that many Kenyans believe the Constitution was far too ambitious, too expensive and better left aside until such time as the country has sorted out its economic challenges.
Yes, legislators, judges and the executive appear to have shifted their copies from their desks to shelves, to gather dust alongside dozens of commissions of inquiry reports.
The country has a Constitution but mostly lacks a culture of constitutionalism. Moreover, this regime and its predecessor are bringing us back to pre-constitutional politics. Buying and selling, politics has become the market place in consolidation of power and rebirth of authoritarianism.
This should not come as a surprise to keen observers as few in leadership positions today played any part in creation of the Constitution.
This neglect and onslaught on the Constitution is most noticeable with regards to devolution, which arguably was the cornerstone of the people’s charter. We are constantly informed that corruption has been devolved to the counties and that most of the 47 units are immersed in incompetency, fraud, debts and tribalism.
The Controller of Budget this week issued a scathing indictment of the newly elected governors, claiming many of them spend up to 100 times more on recurring expenditure than on development projects. It appears that Kisii, Meru and Lamu performed worst in this respect.
However, without attempting to defend the indefensible, the COB should have furnished the public with all facts. In the governors first six months of office there was an unexplained delay by the Treasury in releasing monthly remittances.
As a result, whatever little did arrive from September went to pay salaries of key workers who had not been paid for several months. Some counties, like Mombasa depended on banks to bail them out. It would appear that the Chinese debts are given priority when it comes to payment and devolved units are often reduced to begging at State House for leftovers.
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It is true that the first ten years of devolution have been wasted in some counties, but the change that has taken place in others is remarkable. There are governors who should be in Kamiti but there are others weeding out ghost workers and setting aside the savings for development.
Yet, the long drawn-out discussions on the equalisation fund further indicates the national government’s lack of commitment to the devolved units.
Besides, there is massive scrutiny of how the 15 per cent of all revenue disbursed to the counties is utilised but little oversight or exposure on how the national government uses its massive 85 per cent.
Another concern is that many functions of national government are yet to be devolved. This was further demonstrated in the national government forcing the counties to spend billions on expensive medical equipment that is gathering dust in hospital stores.
Devolution is arguably the best thing to have happened in Kenya since independence. Wananchi have embraced it while public participation and oversight are taking place in the remotest of places. Yet, it is under threat from the national government.
The Kenya Kwanza regime says it wants to review the Constitution without revealing its agenda. The Council of Governors, however, should grasp the bull by the horns and revisit Article 203 (2) that states that not less than 15 per cent of the national revenue be given to counties.
They would thereby set the cat among the pigeons and demand that at least 35 per cent be given to the counties to expand their services and functions. In that way they would be advancing devolution and challenging the central government’s scheme to undermine, diminish and maybe eventually disband the devolved units.