Experts warn against amending Constitution
By Felix Olock
| July 27th 2013
By Felix Olick
Constitutional experts and civil society organisations in Kenya are voicing strong concerns about moves to amend the devolved system of government that was only introduced in March this year.
Following a troubled first few months under the devolved system, some MPs are already calling for the governors’ powers to be curbed by capping the percentage of national expenditure that they control.
Governors are heading in the opposite direction – they are pressing for bigger budgets and increased powers for the senate.
But experts say that it is far too early to be making changes to the new constitution, which only came into force less than three years ago following an August 2010 referendum that overwhelmingly endorsed the idea of devolution.
Lawyers who served on the committee of experts that drew up the constitution have urged both MPs and governors not to forget the governance problems which led Kenyans to vote for change.
“This new clamour for constitutional amendment is completely unnecessary,” Dr Ekuru Aukot, a former member of the committee of experts told the Standard.
“If there are disagreements [over interpreting the law], they should seek an advisory opinion from the Supreme Court. When we handed over this document, we were hopeful that it would not be touched for at least ten years.”
Who is in charge?
Some members of parliament accuse governors of being greedy and having skewed priorities, particularly when it comes to managing county budgets. A number of governors have come under fire for setting aside huge funds for entertainment, travel and building lavish residences while turning a blind eye to development and other local concerns.
Lawmakers say they want to retain control of the Constituency Development Fund, which is now meant to be distributed to county administrations.
They argue that the money would still be devolved to the counties through them drawing a new wedge between the leaders
MPs are also opposed to the privileges granted to governors, such as being allotted eight bodyguards, diplomatic passports, permission to fly the national flag and the title of His Excellency.
For their part, governors are pushing for changes to the constitution that they believe will help devolved government take root.
They fear that national government is muscling in at county level, and specifically that the county commissioners – who act as official representatives of the state at county level – are usurping their powers.
This follows the announcement by the government that those who served as provincial commissioners under the old system will be redesignated as “regional coordinators” and tasked with a monitoring role.
This role is not laid out in the constitution, and uncertainty over its mandate has deepened tensions between local and national levels.
According to the constitution, the Senate is in charge of overseeing the devolution process and protecting the interests of county administrations.
But last month, senators became embroiled in a row with the National Assembly, which had spurned an initiative to increase the allocation of funds to county administrations by about 20 per cent.
Senators had voted to increase the total sum from 210 to 258 billion shillings.
But without consulting the Senate, President Uhuru Kenyatta approved the original, lower sum agreed by the National Assembly.
For some members of the Senate, the National Assembly’s reluctance to increase the county budget allocation suggests the government is not wholly committed to devolution.
“We cannot wait any longer to test the constitution,” said Mombasa Senator Hassan Omar.
“There are contextual realities that devolution is under threat and it’s not prudent to wait for ten years.”
Governors want a national referendum on increasing the portion of the national budget set aside for county administrations, from the current minimum of 15 per cent to at least 40 per cent.
Meeting under their umbrella organisation of the Governor’s Council, the 47 governors endorsed a resolution to launch their referendum bid with public rallies across Kenya.
The first rally is scheduled for August 31.
Although the governors represent both the ruling Jubilee coalition and the opposition Coalition for Reforms and Democracy (Cord), they are united on this issue, and have backing from the Senate.
By contrast, support for clipping the governors’ wings is not universal in the National Assembly. Some CORD members are vehemently opposed to the idea.
“I was in the committee of 26 members who drafted the constitution which was passed by Kenyans. I will not support any attempt to derail devolution,” Mbita MP Millie Odhiambo said last week.
Already, a special Senate committee has been formed to come up with a set of draft amendments to the constitution. The changes centre on greater powers and larger budgets for county administrations.
Too soon for further change
As moves to amend the constitution take shape, the Constitutional Implementation Commission (CIC) insists that Kenya is not ready for more systemic change.
The idea behind devolution was to correct the shortcomings of a government that ever since independence had heavily centralised power.
The CIC has warned that limiting the powers of governors would undermine the whole system of devolved government and curtail the benefits people envisioned.
“One of the reasons why Kenyans voted for the constitution was to give powers of self-governance to the people and enhance their participation in making decisions affecting them,” CIC Chairman Charles Nyachae noted.
“We cannot talk about clipping the powers of governors without taking away the constitutional roles of county governments. This would fundamentally affect the entire governance architecture in the 2010 constitution.”
Aukot pointed out that devolution was meant to fix the endemic corruption and inter-ethnic rivalry that has been a feature of central government.
“Our leaders should take a walk down memory lane before attempting to fight devolution. Centralisation had many ills that Kenyans should not be dragged back to,” Aukot said.
While members of parliament justify their campaign to curb governors by pointing to their alleged excesses, others argue that this is not a solution.
Morris Odhiambo, president of the Civil Society Congress, argues that it would be better to work on holding elected officials to account.
“What we should be focusing on as a country is to tighten the screws to guarantee accountability within the county governance,” Odhiambo said.
“The problem is not the design of the constitution but the people we elected. The mistake Kenyans made was to elect some very corrupt people as governors. So they are the first enemies of devolution because they end up looking at county resources as their own.”
Other commentators, however, are concerned about the governors’ rush to wrest a bigger share of spending from the central authorities.
Centre for Multiparty Democracy Chairman Omingo Magara points out that President Kenyatta’s regime have increased the allocation to counties to more than 30 per cent without any referendum.
“This jostling for more resources is a complete waste of time that should be used constructively to give service to the people of Kenya,” Magara said.
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