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The Commission on Revenue Allocation (CRA) unintended consequence of its Third Formula for sharing county revenue is that it channels resources to already developed regions while revoking support for poorer regions. The formula puts more emphasis on parameters that favour already advanced counties. 

The poverty index (14%) that previously favoured vulnerable counties is sacrificed when the population quarter is given more weight (18%) thus setting the spiral effect in favour of prosperous counties health needs (17%), agriculture (10%), urban household (5%) and basic share (20%). It’s not obvious whether agriculture includes livestock and fisheries.

Meanwhile, variables that would create equity between counties are given lower denominations like poverty (14%), land area (8%) and rural access (4%). What is abhorrent is that the poorer, large and rural a county is, the more it gets punished instead of being assisted. In the end, the formula allocates 70% of shareable revenue to already well-off counties against 30% for the less fortunate.

This is a throwback to Sessional Paper No.10 of 1965 that put resources only into “railway line” agriculturally productive regions and condemned “marginal” regions for lacking this endowment. Indeed, there is a fallacy that allocation to land factor is about expanse. This isn’t true.

SEE ALSO: Governors want old formula used to share county funds

Expanse should be a factor only as an enabler or not in access to and provision of a service. It’s more expensive to meet health needs of a few scattered in Turkana than for denser in Kiambu because Turkana retails expensively while Kiambu bulk trades cheaply.   

The archaic Sessional Paper is repudiated by several articles in the 2010 Constitution that shifts resources to dire needs and therefore renounces institutional marginalisation. For a start, the formula runs counter to two key principles in the Constitution. One, the formula reverses the overall objective of the devolution system of government and passing it would amount to amending the Constitution through the backdoor.

Under Part 1 – Objects and Principles of Devolved Government - the objects of devolution include key elements in Article 174(a) to “foster national unity by recognising diversity; protect and promote the interests and rights of minorities and marginalised communities; promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; ensure equitable sharing of national and local resources throughout Kenya; and facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya.”

In addition, 175(b) demands that “county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively.” Counties don’t carry out this constitutional requirement on empty coffers – each according to need and disadvantage. This is the essence of devolution; dispersal of resources to those in need most after being deprived for decades. 

In debunking marginalisation Chapter Two- The Republic - of the Constitution at Article 6(3) is clear that “A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.”

SEE ALSO: What Raila risked losing by backing Senate cash formula

There is no prevarication here and were Senate as a State organ to pass the CRA formula, it would be abrogating and failing to “ensure reasonable access to its services in all parts of the Republic”.  

The service Senate provides is to protect devolution and counties, and in as much as possible, ensure equity in distribution of resources.

Two, in the extensive Chapter 4 - Bill of Rights are to be found various censures against any action supportive of the CRA formula. The Constitution rallies for equality and freedom from discrimination and at Article 27(6), it is equivocal that “The State shall not discriminate directly or indirectly against any person on any ground…”

The formula entrenches ethnic bigotry. To deny needy counties resources is to discriminate individuals in those counties. That’s what Senate is being goaded to do.

The rider

SEE ALSO: Why we oppose population-based revenue formula- Wajir North MP

Indeed, Senate would be acting ultra vires the Constitution if it didn’t respect Article 27(6) edict “To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

The “affirmative action” principal that has guided share of revenue so far is trampled upon in the CRA formula. Not that any county doesn’t deserve allocations. However, how do you redress “past discrimination” by loading more resources to advantaged counties as this formula does?  

Then the rider in 27(7) that “Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.” Does Kisumu County really have more pressing “genuine need” than Mandera? There is the further crushing of access to economic and social rights provided for in Article 43(1).

If we demobilise resources from some counties, it can no longer mean every person has the right to access – in the language of the Constitution - the highest attainable standard of health; adequate housing and reasonable standards of sanitation; be free from hunger and have adequate food of acceptable quality; clean and safe water in adequate quantities; or education.

Chapter Eleven - Devolved Government - is the clincher in the Constitution. It changed our governance system putting more weight to dispersal of resources from the centre to the periphery. That centre isn’t just Nairobi but analogically from the rich to the poor. Most economically indigent are found in poor counties. Indeed, how are the vulnerable in poor counties expected to enjoy economic and social rights if the State deliberately sanctions discrimination if Senate whisks away “State protection” by adopting the discriminative CRA formula?

-The writer is an advisor to Vihiga County Government

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