The 47 counties can’t, and won’t be turned into mini-banana republics

Makau Mutua

Twitter@makaumutua

Kenyans wrote the 2010 Constitution, but they don’t seem to understand it. Perhaps they do, and are simply obfuscating. May be it’s sabotage. Yup – the thought has crossed my mind. It seems clear that powerbrokers – including mandarins at State House – are like ships passing in the dead of night. They can’t seem to agree on two basics – power and money.

That’s how much of each should go to the counties, and what the central government should retain. Let me tell you something. Devolution is the central question of our time.

That’s why you should take this to the bank – counties can’t, and won’t, be turned into mini banana republics. Methinks Kenyans must draw that line in the sand. Let me jog your noggin in case you’ve forgotten, or don’t know. Ignore the bloviators for now.

Kenyans wanted to disperse power – and money – from the centre. But that doesn’t mean they wanted to hollow out the centre. Nor were they seeking a true federal state.

But in a constitutional paradox, Kenyans craved both a “unitary” state and a “federal” one. That’s an impossibility, even to constitutional magicians.

It’s like having your cake, and eating it too. In other words, you can’t eat your cake and still have it – after you’ve eaten it. That’s why political gerrymanders agreed that only a “quasi-federal” constitution was possible. Let’s begin from there. So, what’s a quasi-federal state, and what are counties?

Let’s agree it’s all about power and dole. But – and this is huge – a quasi-federal state has a constitutional design in which political competition and conflict management pit the centre against the counties.

This could be a good thing. That’s because conflict under a quasi-federal, or federal, structure shouldn’t pivot on identity – such as race, class, religion, ethnicity, and other cleavages.

That’s not to say identity politics don’t exist, or aren’t important, in quasi-federal or federal states. It’s only that they shouldn’t be the drivers of conflict between the periphery – the counties – and the central government in Nairobi.

The conflict between the two centres of power should be money and political autonomy. It shouldn’t be about the tribe.

So, why is there confusion – deliberate conflation and hot air – between the centre and the counties? Bomet Governor Isaac Ruto has galvanised his counterparts from all 47 counties in a push for “full devolution”. Methinks the bright and cunning URP politician has rattled President Uhuru Kenyatta and DP William Ruto.

He’s cornered them to raise the county piece of the national pie. But that won’t pacify him and the newly minted county power centres. Nor should it. Their share of the national cake isn’t a charitable donation.

That’s why devolving power to counties will be a hard slog. Clear constitutional principles must be devised to fulfil the political ambitions of county governments. Otherwise, county governments will be mere vassals.

It doesn’t take a rocket scientist to figure out why Mr Kenyatta and Mr Ruto would be reluctant to answer the bell for full devolution.

You don’t have to be a genius to know from whence Governor Ruto is coming. Mr Kenyatta is governing a radically different state from that of his predecessors. In the imperial presidency of yore, the head of state held untrammeled power. He dispensed largesse without fetters.

He used and abused state power and resources to reward cronies and punish detractors. Mr Kenyatta still has lots of power, but the Constitution sharply clips his wings.  He’s working with – and this could be generous – only 60 per cent of the National Treasury. The rest is under the command of governors.

Yet power doesn’t tame itself. As African-American abolitionist Frederick Douglass aptly remarked, “power concedes nothing without a demand”. A constitutional “culture of devolution” has to be deliberately grown and forced on the central government. This won’t happen like instant coffee. My crystal ball tells me it will take decades, if not longer, to be incubated.

But the central government isn’t the only obstacle to devolution. The county governors need to be watched with a hawk’s eye. Some of them seem to think that they are tin despots with piggy banks to create new corruption networks. Others are acting like kids with new toys. Those who think devolution will shield their thieving ways had better think again.

Finally, most Kenyan counties share the curse of tribalism. That’s because they largely track the initial colonial tribally drawn districts. This means conflict between the centre and counties could be tribal because of the ethnic identity of the occupant of State House.

Such an eventuality needs to be neutralised if devolution is to succeed. The tribe is the bane of Kenya’s existence, and I don’t believe the Constitution’s devolution rationale defanged this monster.  Counties that are tribal enclaves will be sources of destructive conflict unless we rethink them.

Writer is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.