Laws are never cast in iron. They can be amended to reflect changing times. When need arises they can always be reviewed to align them to a situation or aspirations of a people.
Other than for selfish interests, it is difficult to plausibly explain why the Executive has been reluctant to accept devolution, despite the concept being popular with Kenyans. We also question the sincerity of the Executive because this is not the first time devolution is under discreet attack by the power clique.
The furore touched off after the President refused to sign into law the County Government Bill 2012 bears testimony of the desire of a populace to forge ahead with implementation of the new Constitution. The urgency to have all the relevant laws on devolved government derives from the obvious fact that at no time in the history of the country will the Executive again discharge its mandate without regard to the law and Constitution. Impunity and rule of the jungle are gradually, but surely being phased out.
Soon the perception of the President will be that of mortal being susceptible to foils and foibles like any other normal being. Deification of the Executive is gradually giving way to edification of service to the citizentry. Transparency and accountability are to be the drivers of service delivery, a shift away from presidential prerogative as is the case at now.
Abuse of power, unless circumstances take a turn for the worse has effectively been checked through vestment of Executive authority in other institutions of governance, among them the Judiciary and the Legislature. The country needs to enact the laws and streamline them – as opposed to stalling them – to ensure they meet the threshold of good governance.
While the President may have had genuine reasons to decline to assent to the Bill, he erred in his judgement given that the timeline for having the laws on devolution had lapsed when he referred the matter to Parliament.
Of course, there are still avenues through which the matter could be resolved. But given the tendency of Parliament to procrastinate on virtually all matters chances are, its decision are susceptible to being challenged.
There are forces in the Executive who are still beholden to the era gone by where imperial presidency was the hallmark of governance. They are reluctant to let go the privileges that come with wielding power, or proximity to it. There is every reason to believe what the country is witnessing are attempts to frustrate devolution. It is a fact that last year, the Executive, through the Public Service, attempted to bypass the process by appointing county co-ordinators before relevant county laws were drafted.
Another case is the dispute between the Ministry of Local Government Ministry, which ordinarily is expected to oversee devolution – and Ministry of Finance on management of resources in a devolved system of government nearly stalled the drafting of the laws. The Ministry of Finance allegedly sneaked into the Public Financial Management Bill provisions that would have given the Treasury exclusive authority in resource allocation.
The Executive’s argument that some provisions in the County Government Bill 2012 were inconsistent with the Constitution, to say the least is an excuse rather than reason to defer the proposed law. In rejecting the Bill, the Executive argued that aligning the Provincial Administration and regional security machinery to county government has the potential to compromise national integrity, is an argument that could have been addressed through amendments.
Suffice is to say the Executive may be a consumer of half-truths designed to stall implementation of the Constitution by creating a legal lacuna in the transfer of executive power to counties. It is futile to attempt to hold onto a system of government that has been abused through the years by power wielders. It is also not imaginable that after Kenyans overwhelmingly voted for the new Constitution with the sole purpose of mitigating historical injustices, there are still elements that relish the old order in which national development and sharing of resources were asymmetrical. Time for institutionalising equity is now.
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