Chapter 11 Decentralization of Executive, Administrative

CHAPTER 11 DECENTRALIZATION OF EXECUTIVE, ADMINISTRATIVE AND LEGISLATIVE POWERS IN KENYA AND AFRICA This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Decentralization of Executive, Administrative, Parliamentary and Judicial (Quasi-) Powers in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 12. 1 Conceptualising Decentralisation in Kenya and Africa My overarching argument in this Chapter is three pronged. First, decentralization is an omnibus concept that includes delegation, decongestion, deconcentration, and devolution.1 Second, devolution is is founded on ultimate popular, constitutional and political authority. It is based on subsidiarity. It is one of the of the highest levels of decentralization and has numerous permutations and nuances. Third, in Kenya, devolution is operationalized at two levels: national and county levels. In this Chapter, an Afro-Kenyanist perspective and approach is taken in decentralization of executive, administrative and parliamentary powers.

Devolution to the county governments will only be autonomous in implementation of distinct functions as listed in the Fourth Schedule (Part 2). This is in contrast to the Federal System in which sovereignty is constitutionally divided between the Federal government and the States…. How can Afro-Kenyanist constitutional sociology, theory, and methodology be applied to decentralization in Kenya and Africa? What are the lessons from debates on the Building Bridges Initiative (BBI)? Some have problematically argued that the Kenyan devolution system still maintains a unitary political concept as a result of distribution of functions between the two levels of government under the Fourth Schedule and also as result of Article 192 which gives the President the power to suspend a county government under certain conditions. Yet, the President’s powers vis-à-vis the devolved government is circumscribed. Conflict of laws between the two levels of government is dealt with under Article 191 where National legislation will in some cases override County legislation. The relationship between the National Government and the Counties can be seen as that of a principal and a limited autonomy agent as opposed to an agent and agent relation in the Federal system. That is also debatable. More checks and balances have been introduced as requirements for accountability of both levels of Government.

1 See also Chapters 1, 4, 4A…of CODRALKA 1.

The Parliament (Senate and National Assembly) has much discretion on the budgetary allocations to the County Governments. Every five years the Senate receives recommendations from the Commission on Revenue Allocation (CRA) (Article 217) and a resolution is passed on the criteria for revenue allocation. The National Government is constitutionally barred from intruding on the county government’s role under the Fourth Schedule except in certain cases which may require Parliament approval (Article 191 and 192). The National Government has a role at the County level by performing all the other functions that are not assigned to the County Government as listed on the Fourth Schedule (Part 1). Some of the key legislation requiring application and analysis are the Intergovernmental Relations Act, 2012; County Governments Act, 2012; National Government Co-ordination Act, 2013, Covid-19…. Judiciary ..police stations… Contextualize the act of transfer of county functions from the Nairobi County by Governor Mike Mbuvi Sonko, to the National Government. The National Government in this case, will be in charge of functions including health sector, public works, utilities, and planning and development of the county government.2

Is this constitutional as postulated under Article….? The Attorney General, AG Kihara Kariuki said that this process was “constitutional” and that Governor Sonko had the mandate to oversee and steer such a transfer of counties even in the face of the graft allegations against him and the subsequent court orders.3 How unique are the functions/needs of Nairobi county vis a vis the quality service delivery?4 Compare this with metropolitans like Abuja in Nigeria and Washingon DC in the US.

12.1.1 Typology of decentralization of power (delegation, decongestion, deconcentration, devolution…) in Kenya and Africa5 Decentralization refers to the transfer of authority and responsibility for public functions from the central government to subordinate or quasi-independent government organizations and/or the private sector.6 It is a multifaceted concept which entails political, administrative, fiscal and

2 Collins Omulo (2020) “What Nairobi handover to government means for Sonko,” Daily Nation, Nairobi, 26/2/2020, at https://www.nation.co.ke/counties/nairobi/What-Nairobi-handover-means-for-Sonko/1954174- 5469306-dbie4uz/index.html (accessed April 8, 2020) 3 Dzuya Walter (2020) “Attorney General defends Sonko’s move to handover Nairobi County functions,” Citizen Digital, Nairobi, 11/3/2020, at https://citizentv.co.ke/news/attorney-general-defends-sonkos-move-to-handover- nairobi-county-functions-326018/ (accessed April 8, 2020). 4 Ouma Wanzala (2020) “Sonko: Why I handed over Nairobi to State,” Daily Nation, Nairobi, 27/2/2020, at https://www.nation.co.ke/news/politics/Sonko--Why-I-handed-Nairobi-over-to-State/1064-5470408- hw1glez/index.html (accessed April 8, 2020). 5 To contextualize, problematize and conceptualize in Kenya and Africa. 6 World Bank (2009) “What is Decentralization?” at http://www.ciesin.org/decentralization/English/General/Different_forms.html (accessed 5/9/2019).

2 economic aspects. Political decentralization aims to give citizens or their elected representatives more power in public decision-making.7

The three major forms of administrative decentralization are deconcentration, delegation, and devolution.8

Deconcentration, the first form of decentralization, redistributes decision making authority and financial and management responsibilities among different levels of the central government. For instance, deconcentration can merely “shift responsibilities from central government officials in the capital city to those working in regions, provinces or districts.”9 Deconcentration is often considered to be the weakest form of decentralization and is used most frequently in unitary states.

The second type of administrative decentralization is delegation. Through delegation, central governments transfer responsibility for decision-making and administration of public functions to semi-autonomous organizations not wholly controlled by the central government, but ultimately accountable to it. Delegation is seen to be a more extensive form of decentralization.

On devolution, when governments devolve functions, they transfer authority for decision- making, finance, and management to quasi-autonomous units of local government with corporate status. In a devolved system, the units of devolution to which power and authority is devolved are autonomous from each other, though interdependent functionally. Article 6(2) of the Constitution of Kenya 2010 provides that the Governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.

12.1.2 Devolution in Kenya and Africa: Objectives, Structure and Distribution of Powers10 What are the objectives, principles, structure, and distribution of powers under devolution in Kenya and Africa? Devolution is the transfer of political, administrative and legal authority, power and responsibility from the centralized government unit to some unit at local or regional level.11 Devolution is a practice in which the authority to make decisions in certain spheres of public policy at the national level is delegated by law to sub-national level.12

7 Ibid. 8 Ibid. 9 Ibid. 10 To reproduce and analyse in detail the Sihanya Mentoring Decentralization matrix (from Chapters 1 & 4, 4A… 11 See Chapter 4of CODALKA 1 & 2; Sihanya Mentoring Matrix on devolution and related decentralization in Kenya and Africa. 12 East African Center for Law & Justice (2011) “Devolution (Implementation and challenges).” See http://eaclj.org/constitution/20-constitution-feature-articles/38-devolution-implementation-and-challenges.html (accessed 8/6/2014).

12.1.3 Devolution (ugatuzi): Objectives under 2010 Constitution of Kenya Article 174 of the Constitution lists at lists at least nine (9) objectives of devolution.13 These are: First, to promote democratic and accountable exercise of power. Second, to foster national unity by recognising diversity. Third, to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them. Fourth, to recognize the right of communities to manage their own affairs and to further their development. Fifth, to protect and promote the interests and rights of minorities and marginalized communities. Sixth, to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya. Seventh, to ensure equitable sharing of national and local resources throughout Kenya. Eighth, to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya. And ninth, to enhance checks and balances and the separation of powers. How does the foregoing objects compare to those in the relevant African states including South Africa, Nigeria, Uganda, Tanzania and Ghana?

13 To integrate constitutional law and political economy.

12.1.4 Sihanya Mentoring Decentralisation Martix or Chart (issued and discussed earlier)

Devolution, decentralisation, delegation, decongestion, deconcentration and devolution in Kenya Contextualized14

Sihanya Mentoring Decentralisation Matrix (Direct, indirect; subsidiarity; local, autochthonous rule or government)

De legation Decongestion Deconcentration Devolution

Nigerian Federalism SA Provincialism Kenyan devolution (sui US Federalism German generis) or Ugatuzi; 2 Federalism levels; Executive and Swiss Confederalism Legislative, cooperation

National Government County Government 1. Exclusive to National Government 1. Exclusive to National Government (NG) (NG)(eg in US, Nigeria, South Africa, 2. Exclusive county jurisdiction Kenya) 3. Concurrent jurisdiction 2. Exclusive to County Government (CG) 4. Residual jurisdiction (NG) rationale? (e.g. in US, Nigeria, South Africa, Kenya) 5. Transferred powers 3. Concurrent jurisdiction 6. Co-ordination, consultation (NG, & CG , or 4. Residual jurisdiction (NG) (rationale?) CG and CD share ) Hence blocs… 5. Transferred powers? 6. Co-ordination, consultation (NG & CG share)

Intergovernmental relations;

Intergovernmental Budget and Economic

Council (IBEC); Council of Governors;

Summit; Intergovernmental Technical Source: © Ben Sihanya (due 2020) Constitutional Democracy, Regulatory and Administrative Law in Committee Kenya and Africa, Vol. 1: Presidency, Premier, Bureaucracy and Administrative Justice in Kenya; Ben Sihanya (due 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Elections, Governance, Human Rights, the Just Rule of Law, and Due Process in Kenya and

14 See also Chapter 12 CODRALKA 1 on Regulatory and Administrative Law under Decentralized Government in Kenya and Africa…(sovereignty, liberty, service delivery…)

Africa; Ben Sihanya (2004-20) Constitutional Democracy, Devolution and Public Finance, Innovative Lawyering & Sihanya Mentoring, Nairobi & Siaya.

12.1.5 What powers are decentralized or devolved in Kenya and Africa? What are the devolved powers in Kenya? How do the devolved powers in Kenya compare to devolved powers in South Africa? Nigeria? Uganda? Tanzania? Ghana? In Kenya, political, administrative and fiscal powers are devolved.15

Currently, the National Government in a bid to curb, control, minimize the risk of spread and victims of the Coronavirus, has taken control of the testing, prevention and control functions even despite the fact that health as a function is devolved.16 The United Kingdom (UK) in this context, devolved major functions including public health services, education, policing and judicial matters to Wales, Northern Ireland and Scotland, through a legislation, Coronavirus Act 2020.17

14.1.5 What are the levels or units of decentralization or devolution in Kenya? The Republic of Kenya is neither a federal state nor a unitary state as it has a unique or (sui generis) devolved system of government. Kenya’s devolved system of government provides for two levels of government - the National Government and County Government in each of the 47 counties. The governments at the national and county levels are distinct and inter-dependent and conduct their mutual relations on the basis of consultation and cooperation. Government at either level is to perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level assist, support and consult and, as appropriate, implement the legislation of the other level of government.

The government at each level, and different governments at the county level, are to co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities. In any dispute between governments, the governments are to make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.

Take for instance, the recent spat between the Nairobi County Governor Mike Sonko and the Public Service Commission (PSC) over the upgrading and/or deployment of over 6, 000 county

15 World Health Organisation (WHO) “Decentralisation,” at https://www.who.int/health-laws/topics/governance- decentralisation/en/ (accessed April 8, 2020). 16 Moses Otieno Kajwang (2020) “The role of county governments in coronavirus control,” The Star, 26/3/2020, at https://www.the-star.co.ke/covid-19/2020-03-26-the-role-of-county-governments-in-coronavirus-control/ (accessed April 8, 2020). 17 Institute for Government (2020) “Coronavirus and devolution,” at https://www.instituteforgovernment.org.uk/explainers/coronavirus-and-devolution (accessed April 8, 2020).

6 workers to the Nairobi Metropolitan Services (NMS) in the context of the Deed of Transfer of functions between Nairobi County government and the National Government...18

12.2 Powers, Functions and Duties of the County Executive Committee in Kenya and Africa Under Art. 183 there are six (6) functions of the County Executive Committee (CEC) lited as (a) to (f). First, to implement county legislation. Second, to implement, within the county, national legislation to the extent that the legislation so requires. Third, to manage and coordinate the functions of the county administration and its departments. Fourth, to perform any other functions conferred on it by the constitution or national legislation. Fifth, to provide the county assembly with full and regular reports on matters relating to the county. And sixth, to prepare proposed legislation for consideration by the county assembly. Consider the following with regard to the County Executive Committee (CEC): Financed by the Government? Managerial and administrative skills; Politics and political? Individual and collective responsibility of (county) Cabinet?

12.3 Parliamentary devolution in Kenya and Africa in Kenya and Africa The Legislative branch consists of the following: 12.3.1 The Senate (Article 98, Constitution of Kenya 2010) in Kenya and Africa Every one of the 47 counties will have an elected Senator. A Senator is to be elected by the voters in every county. What is the number and election process of Senators in Nigeria? The total number of Senators is 67(47 + 16 female nominees + 2 youth reps + 2 reps for the disabled + speaker (ex officio))…. Who were the first Senators under the 2010 constitution?19 Who were the Senators following the 2017 General Elections?20 What are the powers of the Senate vis-à-vis counties? The County Government as a whole? The County Governor? The County Executive Committee? The County Assembly? What are the BBI debates on Senate vis-à-vis Counties? 12.3.2 The National Assembly (Art. 97 Constitution of Kenya 2010) in Kenya and Africa Every one of the 290 the number proposed to be implemented by the Independent Electoral and Boundaries Commission. There were geographical 210 constituencies under the 1969 Constitution.21 Majority of the Members of National Assembly are directly elected by voters.

18 Collins Omulo (2020) “6,000 city staff moved to NMS despite protests from Sonko,”Daily Nation, Nairobi, 6/4/2020, at https://www.nation.co.ke/counties/nairobi/6000-city-staff-moved-amid-Sonko-protests/1954174- 5516194-c5psu/index.html (accessed April 8, 2020). 19 …. 20 …. 21 See Chapters 4, 9A, 9B, 10 of CODRALKA 1.

Every county is to elect a woman MP therefore guaranteeing a minimum of 47 women MPs in the National Assembly. There are 12 nominated members. The total number of MPs is 349 (290 + 47 + 12 + speaker (ex officio). What are the BBI debates on the composition of the National Assembly vis-à-vis County questions? 12.3.3 County Assemblies and Executive in Kenya in Kenya and Africa The country is divided into 47 counties. These are the counties are comparable to the 1992 districts. Cf. Districts Act,22 Outlying Districts Act, Provinces Act.23 The Bomas Draft Constitution had proposed the following fourteen (14) regions…. What are the constitutional, political, economic and cultural arguments regarding the demarcation or delineation and naming of counties? Regions under Bomas Draft? Every county has a County Executive headed by a county governor elected directly by the people and. What are the numbers and electoral process in Nigeria? A county assembly elected with representatives from wards within the county. How were the 1450 wards delineated? Named? How do they compare to the wards under the 1969 Constitution and the Local Government Act (repealed and replaced)? 12.4 Devolution in Kenyan and African History Devolution in Kenya was only effected in 2010 after the promulgation of the Constitution of Kenya 2010. It had been a subject of constitutional review debates since independence. During the period after independence and before 1992, the Constitution underwent 2424 amendments that were essentially aimed at consolidating political powers and serving the interests of the few elite close to the presidency. Citizens had no role at all in these amendments. Moreover, a majority of the citizens had no idea about its contents and its legal force.25 Kenya had a constitution without constitutionalism, as popularized by HWO Okoth Ogendo.26

The process of constitution review and amendment since 1963 has never been immunized from the vagaries of politics. The major proponent for constitutional review in 1964 was the ruling

22 …. 23 …. 24 Cf. United States of America (USA) – 26 or 27 amendments? Explain. Nigeria 1960, 1999; 1960-2017? 1994- 2019? Uganda? Tanzania? Ghana? 25 Ibid. see also Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State, 1963-2011: lessons from British, American, German and African constitutionalism,” article published in Law Society of Kenya Journal in 2010. 26 Why “popularized?” Any specificity and actionable proposals by HWO? Or, history has to be lived, not just learnt?

8 political party (KANU), and the organ for review was the single party parliament. The main purpose and effect of the constitutional changes was to strengthen the executive arm of government at the expense of other institutions and checks and balances provided for in the independence constitution. The constitutional changes that took place between 1963 and 1965 resulted in the creation of a centralized system of government, the abolition of regionalism and establishment of de facto one-party state.27

The constitutional developments during the period were to ensure the political survival and succession of power by the ruling party, culminating in Kenya being constitutionally declared a de jure one- party state in 1982. This resulted into further centralization of state powers in the hands of the President, and further erosion of powers of other constitutional organs and institutions of the state.

The quest for constitutional amendments took a new direction in 1990 when the Citizens’ Coalition for Constitutional Change (4Cs) led religious groups, the civil society and NGOs in demanding for the restoration of multiparty democracy in Kenya.28 Among the issues at the heart of these movements were first the one-party rule, secondly, detention without trial, and thirdly security of tenure of judges, the Attorney General and the Auditor General.29 In December 1991 the constitution was amended to allow multi-partyism.

The momentum for a comprehensive review picked up again after the elections as it was realized that the repeal of one-party provision was by itself insufficient to ensure an effective constitutional democracy, increase public accountability, and ensure more responsive policies.

President Moi then declared in 1995 that there was no constitutional crisis in Kenya.30 Earlier on, he had promised to bring in foreign experts to collect views from Kenyans on constitutional reforms and draft a new constitution. There were demonstrations and mass action organized by the opposition, civil society and religious organizations.31

Before the 1997 general elections, Parliamentary political parties formed their own forum, the Inter Parties Parliamentary Group (IPPG) in August 1997. This is the forum that broke the monologue between the KANU MPs and the opposition as the former could not engage the opposition in any discussion without permission from President Moi. The reforms to be implemented before the general elections as agreed upon by the IPPG included:

27 See H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (1999) African Perspectives on Governance, Africa World Press, Trenton, pp. 33-60. 28 Willy Mutunga (1999) “Constitution making from the middle: Civil Society and Transition Politics in Kenya, 1992-1997, Mwengo, Harare and Sareat, Nairobi p 17. 29 Cf. HWO (1988) endorsing these amendments allegedly because that was the trend in Africa 30 Willy Mutunga (1999) Constitution Making from the Middle Civil Society and Transition Politics in Kenya, 1992- 1997 p136 Sareat/Mwengo, Harare Zimbabwe 31 Ibid p 162.

1. The independence of the Electoral Commission of Kenya (ECK). 2. Repeal of laws restricting civil and political rights 3. Abolition of the offence of sedition 4. Fair access of all political parties to the state media.

It is perceived that the IPPG gave the KANU regime a further lease on life. IPPG came at a right time to save KANU from a disaster, considering the political crisis that was in the country then. However, not all the proposals made by IPPG were implemented because parliament was dissolved earlier.

The Constitution of Kenya Review Act 1997 was introduced and passed to provide the legislative framework, structure and vision of the review process after the 1997 elections. The review Act was not made to every one’s satisfaction. Several meetings were held to negotiate and bring all the stakeholders to a consensus. In 1998, the Act was amended to reflect the consensus achieved in the negotiations. The review process did not start immediately after the amendments as major political parties could not agree on the composition of members to the Constitution of Kenya Review Commission. There was a stalemate in the process and this resulted to the establishment of two parallel review processes-one by parliament and the president under the Review Act and another by religious and civil society groups.

As a result of the realization that there was danger in having two parallel review processes, the major stakeholders led by Prof Yash Pal Ghai held a series of negotiations between November 2000 and May 2001 resulting in the decision to merge the two and the amendment of the Review Act in May 2001. The Review Act was thus amended again in May 2001 to incorporate the terms of the merger agreement that saw the inclusion of more members into the commission.32

There were established five organs of the review process, with specific functions.33 These were:

1. the Constitution of Kenya Review Commission (CKRC) 2. the Constituency Constitutional Forum (CCF) 3. the National Constitutional Conference (NCC) 4. the referendum; and 5. the National Assembly

32 The commission was now composed of 29, from the previous 15 members. 33 33 Jill Cottrell and Yash Ghai (2004) “The role of Constitution-building processes in Democratization: Case Study Kenya,” International IDEA Democracy-building & Conflict Management (DCM), at http://www.katibainstitute.org/Archives/images/Constitution_Building_Processes_and_Democratization-Kenya.pdf (accessed April 13, 2020)…;Final report of the Constitution of Kenya Review Commission, 2005 final draft, at http://www.katibainstitute.org/Archives/images/CKRC%20Final%20Report.pdf (accessed April 13, 2020).

The Parliamentary Select Committee (PSC) was created under the Constitution of Kenya Review Act Chapter 3A Laws of Kenya to act as a bridge between the Commission and the National Assembly.34

The Commission began its mandate by first conducting and facilitating civic education. This was important as it would eventually stimulate public discussion and awareness of Constitutional issues. Faced with the challenge of time, the Commission was determined to complete its task before the 2002 General elections. The process was however delayed by the Moi-KANU friendly Commissioners who did not want the review the process completed before the general elections.

After collecting views and conducting civic education, the Commission retreated to Mombasa on August 2002 to draft the Constitution. Again, the Commission faced a threat of being disrupted from starting the crucial process in Mombasa.35The Government, for political reasons, became hostile to the review process. Ultimately, the Commission went ahead to start the drafting process.

While the drafting process continued in Mombasa, two suits were consecutively filed in the High Court. Among the orders sought in the suits were that the recommendations and decisions contained in the Draft Constitution, in so far as they related to the Judiciary be quashed.36The petitioners also sought orders to stop the commission from discussing or collecting views that relate to the Judiciary. There was a general fear among the judicial officers that the Committee would recommend the dismissal of all the Judges and re-appointment on fresh terms. Orders to stay the discussions on Judiciary by the Commission were issued although it was too late. The Commission’s top officials disregarded court orders and went ahead with the process, supported by the Law Society of Kenya.37

A draft Constitution was released to the public on September 19, 2013. What was scheduled to follow was the National Constitutional Conference.38Regrettably, President Moi intentionally dissolved Parliament on October 27, 2002, a day before the date scheduled for the conference. This would mean that the Committee would not have the 224 delegates (required audience)

34 The Parliamentary Select Committee (PSC) was chaired by four individuals: Raila Odinga, Paul Muite, Deputy President William Ruto and Simeon Nyachae. 35 Keriako Tobiko, a Commissioner then, alleged that there was an existing draft Constitution and that the Chairman had not followed the correct procedure as he believed that he was behind the irregular drafting of the constitution. Consequently, President Moi issued a press statement that he was no longer interested in the Commission and that he would not give his views. 36 The first suit was filed by two lawyers; Tom O K’opere and John M Njongoro. The second suit was filed by two Judges (then), Moijo Ole Keiwua and Vitalis Juma. 37 Raychelle Omamo, Law Society of Kenya (LSK) Chairperson then, launched a “yellow ribbon” campaign against the Judiciary. Advocates wore yellow ribbons to court in protest against the Judiciary. Later, on October 11, 2002, all lawyers boycotted court and demonstrated. 38 This was to take place on October 28, 2013.

11 comprised of Members of Parliament. To scuttle the event further, the Government posted police officers to the Bomas of Kenya compound on the material day.

The commission therefore remained paralyzed until the 2002 general elections were over. Eventually, after the ushering in of the Kibaki regime, the National Constitutional Conference took place on April 28, 2003. In the debate, after constant protests by the politicians (MPs), the Delegates agreed to remove the clause in the draft requiring that Ministers be drawn from outside Parliament and proposals on Recall of parliamentarians. Generally there was an assumption that by most of the Members of Parliament that the recommendations targeted them.39

At this stage it was clear that Devolution of Power, Structure of the Executive and Legislature, Land and Human Rights occupied a significant portion of the agenda. During this conference, it became evident that key individuals in the Executive were opposed to devolution. In May 2003, the Department of Provincial Administration and National Security Offices of the President in the then docket of Minister Christopher Murunga had published a document titled “Devolution of Power: An Alternative Proposal for the New Constitutional Dispensation-2003.”40

12.4.1 Bomas on devolution What were the objects and principles of devolution under the Bomas Draft Constitution? What were the levels of devolution? It was during the Bomas II deliberations where the structure of the Executive, the structure of the Legislature, inclusion of Kadhi’s Courts in the Constitution, and framework of devolution of power were discussed. It appeared that the debate on devolution, structure of legislature and executive was hampered by fears of loss of status and privileges then enjoyed by the members of Parliament than by strict constitutional principles. It was agreed during the Bomas II conference that there should be four levels of government i.e. national, sub- national, county and location.

It was also during BOMAS II that Dr Chrispin Odhiambo Mbai who was the convenor of the Technical Working Committee on Devolution was murdered. 41

Bomas II conference was adjourned in September 26, 2013. There was again an indication that powerful political forces did not want the conference to reconvene later. The Conference was to reconvene on November 17, 2013 but it was scuttled. The event was pushed to January 12, 2004. The Government had more “urgent” issues in priority.

39 Jill Cottrell and Yash Ghai (2004) “The role of Constitution-building processes in Democratization: Case Study Kenya,” International IDEA Democracy-building & Conflict Management (DCM), at http://www.katibainstitute.org/Archives/images/Constitution_Building_Processes_and_Democratization-Kenya.pdf (accessed April 13, 2020). 40 Ibid, at 30. 41 He was murdered on Sunday, September 14, 2003.

In the 2004 Bomas deliberations (Bomas III), it emerged that a section of the Delegates preferred a system of Government with a President as the Head of the State and Government. The president would then appoint a Prime Minister and in consultation with the Prime Minister would also appoint Ministers. This group of delegates majorly comprised the pro-Government team. On the other hand, the opposition, led by Raila Odinga preferred a system where there would be a president with a Prime Minister drawn from the party with the largest majority in Parliament and would be confirmed by Parliament. The Prime Minister (described as the “Executive Prime Minister”) would be the Head of Government and would appoint Cabinet in consultation with the President.

12.4.2 Referendum 2005 Draft on devolution What were the objects and levels of devolution under the Wako Draft constitution? What were Parliament powers vis-à-vis counties and devolution? A Constitution Amendment Bill, 2004 was published on June 28, 2004 to amend the Constitution Review Act to provide to provide for the making of a Constitution pursuant to the decision of the High Court in the Njoya case. The Bill provided for the process leading to a Referendum and the replacement of the 1969 Constitution. It was passed by Parliament on December 2, 2004.42It is this Act that guided the last phase of the review process leading to the Referendum of 2005.

After the rejection of the Wako Draft in the 2005 Referendum, Mwai Kibaki appointed a committee called “Committee of Eminent Persons” to initiate a fresh process in quest for another Constitution.43

At last, Kenya passed a new constitution on August 27, 2010 after intensive consultative forums and developments within the coalition Government.

12.4.3 Lancaster House and Kenyan debate on majimbo (regionalism); ugatuzi decentralization and sharing); devolution debates leading to 2010 Constitution e.g. … What were the objects and levels of devolution under the Wako Draft constitution? What were Parliament powers vis-à-vis counties and devolution?

12.5 Decentralisation in the UK, USA, GermanyWhat were the objects and levels of devolution under the Wako Draft constitution? What were Parliament powers vis-à-vis counties and devolution?

42 Ibid. 43 The author was a consultant to that Committee. See Ben Sihanya (2006)……The members were: Ambassador Bethuel Kiplagat (Chairperson); Dr Kaendi Munguti (Vice Chairperson); Prof Onesmo Ole Moi Yoi; Dr Karuti Kanyinga; Mr Juma Mwachihi; Mr Mwambi Mwasaru; Dr Jacinta Muteshi; Dr Richard Barasa; Engineer Peter Wambura; Dr Nemwel Nyamwaka Bosire; Prof Ng’ethe Njuguna; Prof Patricia Kameri Mbote; Justice (Rtd) Abdul Majid Cockar; Ms Wanza Kioko; and Prof Kassim Farah.

12.6 Decentralisation in Nigeria, S. Africa; Uganda: decentralization and recentralization under Museveni What were the objects and levels of devolution under the Wako Draft constitution? What were Parliament powers vis-à-vis counties and devolution? 12.7 Role of President in county government

…

12.8 Role of national administrative bureaucracy in county government

…

12.9 Role of transitional authority and the successor committee

…

12.10 Devolution and Distribution of Resources in Kenya and Africa How are resources conceptualized, problematized, and contextualized under the devolved system of Government? Human Resources, Finances(including principle that funds follow functions of devolution), Equipment, Infrastructure; Focus on: Public finance at National Government and County Government levels.44

12.10.1 Typology of key resources in Kenya and Africa Public finance;

Environmental and natural resources e.g. water, land, flora (trees, forests, grassland), fauna (wildlife, livestock...), energy…

Public finance plays a key role in conservation, sustainable utilization, access and benefit sharing (ABS)…..

12.10.2 Human resources in county government in Kenya and Africa

…

12.10. 3 Finances of the county government in Kenya and Africa At least 15% from Consolidated Fund;

County taxes, levies, charges, fees; equalization fund; loans; grants......

How much have the respective counties realized from these sources of funds in the past seven (7) years of devolution? Annually? What are the projections? How do the amounts of funds raised compare to the funds raised in the era of local governments under 1969 Constitution and the Local Government Act (repealed and replaced)?

44 See also Chapters 16 on Planning, Policy and Public Finance in Kenya and Africa,” of CODRALKA 1.

12.10.4 Equipment at county government level: a typology and governance framework What are some of the key equipments?

12.10.5 Infrastructure within and trans-county: typology and governance framework What are some of the key infrastructure?

12.10. 6 Distribution or sharing of resources; Redistribution? Takings? v. Due process, equal protection… What is the role of the Commission for Revenue Allocation in distribution and sharing of resources? What are the constitutional, conceptual…..questions?

How has the previous revenue sharing formulae utilized?

What are the key considerations in developing a revenue sharing formulae?

12.10.7 Decentralisation of resource distribution and administration45 - Comparative constitutional politics of resource allocation, distribution, sharing European and American democracies (UK, Sweden (the Scandinavian experience). - Nigeria and South Africa … e.g. Black Economic Empowerment (BEE) in S. Africa… 12.11 Lessons for Kenya in the context of the 2010 Constitution Equity intercounty and intra county: tribalism v. tribal diversity; efficiency; looting; resource audit.

12.11.1 Kenyan experience: NGCDF, LATF, road levy…as delegated/decongested resource management models – not devolved

12.12 Reforming Devolution of Political Power and Socio-economic Resources About nine years after the promulgation of the Constitution, Kenya needs to review the experiences and challenges in the devolved system of government. This is mainly in the context of political and financial/economic tussles witnessed between the county governments and the national government.

…. Let wisdom flow from the Oracle’ and back in class and through books, articles, online, in the Oracle’s Shrine and in appropriate fora….

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019; 11/2; 2/5; 5/9/2019; 18/12/2019; 27/4/; 19/8/2020 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

45 See also course outline, presentations, and materials in Comparative Constitutional Law Class