Mediation could have long ended standoff

Drama over sharing of revenue between national and county governments and among the 47 county governments themselves has become an annual ritual. Articles 217 and 218 of the Constitution create a framework for division and sharing of revenue after every five years and on an yearly basis, respectively.

At the heart of the debate in the Senate is the contentious new formula for resource-sharing proposed by the Commission on Revenue Allocation (CRA). In line with Article 217, the Senate is supposed to debate and agree on a formula before the National Assembly can also pronounce itself on the matter. Yet the Senate has failed to do so for a record nine times.

This impasse has threatened to grind the functioning of the county governments to a halt at a time when the devolved units ought to be functioning smoothly in order to be able to combat Covid-19. It is instructive to note that public health falls under the jurisdiction of county governments. Following the Senate stalemate, suggestions have been made that mediation be employed to try and resolve the impasse.

The framers of the law regarding revenue division and allocation had in their wisdom foreseen the complexities and difficulties that the process would encounter once subjected to the political process. As such, provisions were made for mediation in the event of a stalemate. It is in light of this proviso that mediation is being fronted as a possible pathway to breaking the stalemate. Noble as it appears to be, it is apparent that the whole idea of mediation in this regard was not well thought out.

Since antiquity, mediation, as a form of alternative dispute resolution mechanisms, has been applied in various conflict situations throughout the world. The United Nations Guidance for Effective Mediation describes it as a voluntary process “whereby a third party assists two or more parties, with their consent, to prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements”. Elsewhere mediation has been conceived as a voluntary dispute resolution process where an impartial third party assists the disputants to achieve a mutually acceptable agreement.

A number of studies have shown that the outcomes of mediation efforts greatly depend on factors such as the characteristics of the disputes, including conflict ripeness, level of intensity and nature of the dispute; the parties and their relationship including identification of parties and cohesiveness among others; the characteristics of the mediator including leverage and status among others and the external context. These factors may apply singularly or jointly depending on the circumstances of each conflict situation.

In the context of the revenue allocation stalemate, the first significant setback is the suggestion to appoint the Senate Speaker Kenneth Lusaka or his deputy as the mediator. Lusaka and his deputy cannot be said to be either impartial or neutral third parties; they possess neither the necessary leverage nor status; and lack the requisite personality trait which can accord them the stature and wherewithal to help the disputants to arrive at a mutually agreeable position. Lusaka, for instance, has only recently served as a county governor in a tenure that was marked by controversies and which was only ended by an electoral defeat. He is probably still interested in running again for the seat in a few months and cannot, therefore, be counted on as a neutral arbiter.

In addition, he has made some questionable rulings as Senate Speaker. Some of the rulings have openly exposed him to criticism and left observers with the feeling that there could be an invisible external hand controlling him. Moreover, in the course of the revenue allocation debate, he has not shown resoluteness as would be expected of a Speaker presiding over such a crucial matter.

A number of experts have pointed out that personality, leverage, and status are vital as they provide mediators with an additional attractiveness to the parties that naturally lead them to an agreement, ability to put pressure on one or both of the conflicting parties to accept a proposed settlement, the respect and confidence and hence the ability to influence parties to an agreement. In the context of the prevailing situation, Lusaka and his deputy lack these elements.

A second critical factor that has probably inhibited breakthrough in the revenue debate is the assumption that there are only two parties to the conflict. Nothing can be further from the truth. Revenue sharing is a political process that involves multiple actors and interests. As is the norm in pork-barrel politics, most of the actors involved are faceless and only pull strings from a distance.

As it is, the identities of all those involved in this feud is not known. Identification of all the actors is important for any mediation or conflict resolution. It helps both the mediator or arbiter and the contending parties to examine and understand the interest groups involved. Perhaps more important would be to analyse the groups’ internal structures; understand the idiosyncrasies of their leaders and the groups’ bases of authority; ascertain support for spoilers and assess skills, resources and influence of leadership. The opacity of the actors involved in this stalemate explains why one side was unable to come up with their mediation team, or why (Majority Whip) Irungu Kang’ata is unable to whip his team.

The presence of numerous actors in a conflict situation definitely creates a complex web of issues and interests, which may in turn compound mediation of conflict resolution process. It is critical that all these are identified and clearly understood. It would be imperative to also understand other incidental political interests which may seem peripheral at face value, but are, in reality, intricately intertwined with this process.

In this category are the BBI, party and regional loyalties, perceptions and narrative about gainers versus losers, and a load of other issues being championed by governors, political aspirants, the business community, clergy and civil society groups. A comprehensive understanding of these interests is critical for development of a clear roadmap on how to mediate the conflict. The process, though, is quite complex and requires a lot of time and expertise.

A third factor, which is linked to the second, is a lack of leadership tiers among all the contending parties that would help guide the mediation or the process of resolving the stalemate. All the big political personalities, be it President Uhuru Kenyatta, ODM leader Raila Odinga or the Deputy President William Ruto, or any other leader for that matter, seem to be stuck in this quagmire.

These leaders are still politically active and may curry favour with certain sectarian interests that may further complicate the debate. Additionally, their support bases and the rank-and-file of the political parties they lead are reading from different scripts. The shared interests or otherwise cut across the diverse parties to the point that no coherence can be achieved by any group. This has limited the ability of the father figures to provide any clear direction in the debate.

Perhaps it is time to think about bringing on board a mediator or ADR with the requisite qualities, experience and expertise that may help break the impasse on revenue allocation. Just like Kenya invited mediator Kofi Annan during the 2008 post-election violence, the Senate should look for such skilled set of hands whenever a stalemate like the current one arises. And Kenya isn’t short of them.

 

Mr Ogola is a mediator/negotiator and an advocate of the High Court