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MPs and Treasury have let down devolution

By Gervase Akhaabi | Jul 26th 2019 | 3 min read

The devolved a system is perhaps the boldest and most revolutionary statement by  Kenyans concerning their determination to address and redress actual or perceived past injustices. Prior to this, many Kenyans saw a number of policies and practices by past governments as tending to favour certain areas and communities.

They also saw the policies as marginalising and or excluding sections of the people and areas from accessing power and resources. They viewed development as skewed in favour of these favoured areas. This caused resentment, hopelessness and discontentment. Vestiges of these feelings still linger, causing suspicion and distrust.

Given the social and political turbulence witnessed prior to the promulgation of the Constitution, the idea of devolution in the form of a federal system elicited fear and apprehension in sections of the population.

Many feared that full adoption of a federal system would precipitate agitation for secession and the resultant disintegration of the country. It was feared that such an eventuality would lead to mass displacement of populations from certain areas. 

To assuage these fears, Kenya opted for a partnership of federal and unitary state systems. The Constitution establishes and adopts a unique form of devolution that addresses the people’s aspirations, concerns and fears. It provides for one government (and NOT two governments, as is often misunderstood) that operates at two levels; national and county.

Unfair and unjust

Kenyans’ decision in favour of a devolved system instead of a strong central government was well considered, informed and deliberate. The intention was to eschew the old system that was considered dissatisfactory, unfair and unjust.

The objective was to create a devolved system that is unique, incorporating both a form of federalism and unitary state which would ensure fairness and equity in the sharing of national resources and access to power.

It was further hoped that the system would guarantee the country equal socio-economic development, efficient and effective service delivery and national unity.

The Constitution assigns responsibilities and functions to the two levels of government which are distinct and inter-dependent.

It expects them to discharge their responsibilities through consultation and co-operation. Consultation and co-operation are essential ingredients or pre-requisites for effective and efficient service delivery. The Constitution does not contemplate any level of government as being superior or inferior to the other.

To emphasise the principle of equality and complementarity, it is important that the Constitution provides a constitutional framework and mechanism for financing and funding the two levels of government.

Different provisions

The resources are to be provided by the National Treasury. No level of government should be financially dependent on another. Parliament has a responsibility to ensure the Constitution is adhered to. It should ensure that both the national and county governments are sufficiently funded by the National Treasury.

It is true that the country has faced a number of challenges in the implementation of different provisions of the Constitution, including the provisions on devolution.

Nevertheless, to a large extent, these challenges do not emanate from a constitutional architectural deficiency but from unwillingness to operationalise and implement the Constitution by those charged with the responsibility to do so or who do not do it as envisaged.

In this regard, Parliament, National Treasury and the structures of inter-governmental relations are the greatest villains.

They seem to have negated their core responsibilities.

In particular, the Treasury and Parliament have ignored their independence and operate like departments of the national government.

Parliament appears divided in loyalty and support between the two levels of government instead of seeing the two as constituting one government. On the other hand, when dealing with counties, the National Treasury appears to be an agency of the national government.

Through the Treasury, the national government erroneously purports to be in charge of national finances and to dole out financial assistance to the county level. To complicate matters, the inter-governmental mechanisms do not appear to be working as they should.

Mr Akhaabi, a former EALA MP, is legal adviser to Busia Governor Sospeter Ojaamong


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