Devolution for development, conflict resolution, and limiting central power: An analysis of the Constitution of Kenya 2010 By CONRAD M. BOSIRE LLB (Hons) (Moi) Dip. (KSL) LLM (Pretoria) Dip. (Fribourg) Student Number: 2974043 A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy (Law) in the Faculty of Law, University of the Western Cape Promoter: PROFESSOR NICO STEYTLER South Africa Research Chair (SARChI) in Multi- Level Government, Law and Policy FACULTY OF LAW UNIVERSITY OF THE WESTERN CAPE MARCH 2013 DECLARATION I CONRAD M. BOSIRE do hereby declare that „Devolution for development, conflict resolution, and limiting central power through constitutional design: An analysis of the Constitution of Kenya 2010‟ is my original work and has not been submitted for any degree or examination in any other university or institution of higher learning. While I have relied on numerous sources and materials to develop the main argument presented in the thesis, all the materials and sources used have been duly and properly acknowledged. _________________________ _____________________ SIGNED DATE ii ABSTRACT State practice and literature suggest that devolution of power can address the main challenges of underdevelopment, internal conflict and abuse of centralised power in developing states. However, this thesis advances the argument that the design features of devolved government for these purposes are not always compatible. Accordingly, while there are complementary and neutral design features in the three designs, trade-offs have to be made between the unique design features in order to ensure the effective pursuit of the three purposes through a single system of devolved government. Kenya, the case study for this inquiry, confirms the international trend as its major challenges over the last 50 years have been underdevelopment, internal conflict and abuse of central power. As such, development, ethnic harmony, and the limiting of central power featured prominently throughout the entire constitutional review process as purposes to be pursued by means of devolution of power. To this end, the devolution of state power is one of the central elements of the current constitutional dispensation in Kenya. There are trade-offs made in Kenya‟s devolution design in order to accommodate the three purposes of devolution. However, the overall result has been that the emphasis falls on development at the expense of conflict resolution and limiting central power. Nevertheless, regardless of the trade-offs and nature of the final design, the design‟s effectiveness or lack thereof may depend very much on factors external to the design. Lack of political will to make devolution work can negate the effectiveness of even the most perfect design; by same token, political will could make an apparently bad design effective. In practice, therefore, effectiveness depends on an array of other context-specific factors. iii ACKNOWLEDGMENTS “It takes a village to raise a child”, so the old African adage goes. However, it takes more than a village to educate that child. The fact that I have completed my doctoral studies more than 2000 miles away from „Itena Village‟, my place of birth in Kenya, is testimony to this. In a very special way, I thank my parents: Barnabas Bosire, and Beatrice Mogotu who, in the most caring way, taught me temperance and life‟s values that continue to guide me. May God grant you a long, healthy, and happy life that is full of His satisfaction and renewal. My gratitude to my supervisor Prof. Nico Steytler is beyond words. I lost count of the number of the draft chapters that you patiently (and with great interest) went through as I wrote my thesis. Yet, from each draft that we discussed, I gathered ideas and skills that I will always fall back on in my career. Thank you for the sacrifices that you made to ensure the timely completion of my studies. I join the list of many a great scholar who have passed through your able hands and for this, I will remain personally and entirely grateful. The same level of gratitude goes to Prof. Jaap de Visser, who was the coordinator of the Multi- level Government Initiative (MLGI) for most of the period I undertook my doctoral studies at the Community Law Centre (CLC). I specifically thank you for providing me with the facilities and ample time that I needed to complete my thesis. Together with Prof. Nico Steytler, you accepted me into the doctoral programme and I thank you for the trust and confidence in me. In this regard, I also thank the Open Society Initiative for Southern Africa (OSISA) for funding my studies. To the entire MLGI team: Derek Powell, Annette May, Phindile Ntliziywana, and Valma Hendricks, I thank you all for your individual and collective effort that, in more ways than one, contributed to this day. The doctoral colloquia organised by the Faculty of Law/ CLC formed an important building block to this work; many of the ideas discussed during the various colloquia formed part of the final product. I therefore thank Dr. Yonatan Fessha and the rest of the team who facilitated the doctoral colloquia that I was part of. I also thank the Institute of Federalism at the University of Fribourg, Switzerland who facilitated the Summer University on Federalism and Decentralisation (2010) which formed the initial basis and stepping stone into my doctoral research. I also remain grateful to André Wiesner who meticulously edited the entire thesis, and Prof. Israel Leeman who edited some of the draft chapters. To my current and former „call centre‟ colleagues and friends: Douglas, Dr. Zemelak, Dr. Aquinaldo, Mutakha, and Tinashe, thanks for the light moments we shared, and the occasional iv „side-plates‟ that made life less of a routine. To my other doctoral colleagues: Maria, Nkatha, Chofor, Ngcimezile, Enock, Nicholas and Berber, thank you comrades for the mutual and sometimes unspoken encouragement that kept me going to the finishing line. To the entire CLC family, your professionalism and friendliness is unforgettable, and indeed, the four years that I have spent at the CLC have been a pleasant experience to say the least. It is with this in mind that I thank Trudi Fortuin and Jill Claassen, who welcomed me to CLC. While they left before I could complete my studies, their memories while in the CLC remain fresh in me. In this regard, I thank Debbie Gordon and the entire team who continue to make CLC “a home away from home”. It was during my second semester as a masters student at the Centre for Human Rights (CHR), University of Pretoria that I came to the CLC as an exchange student. I therefore thank Prof. Frans Viljoen and the entire CHR for opening up the gates to my post-graduate studies. Indeed, the intensive LLM programme at CHR initiated me into what was to follow for the entire duration of my doctoral studies. And, while Dr. Aquinaldo‟s wistful question “why did I choose this life?” reverberated through my mind on many a Sunday afternoon as I worked on Prof‟s never ending comments, I can now confidently say the journey was worth I can most certainly do it again. To my siblings, family, and many friends who prayed for me and encouraged me through this journey, I will forever remain grateful and may God bless you abundantly. Above all, I thank the almighty God who has led me this far. v DEDICATION To my parents Barnabas Bosire, and Beatrice Mogotu My pillars and shining light vi LIST OF ABBREVIATIONS MDG Millennium Development Goals WDR World Development Report UNDP United Nations Development Programme OECD Economic Cooperation and Development UNCDF United Nations Capital Development Fund DGD Decentralised Governance for Development LDC Less Developed Countries USAID United States Agency for International Development FPTP First-Past-the-Post system of elections PR Proportional Representation system of elections IBEAC Imperial British East African Company LNC Local Native Council PC Provincial Commissioner DC District Commissioner KAU Kenya African Union KANU Kenya African National Union KADU Kenya African Democratic Union ADC African District Council LGLA Local Governments Loans Authority PA Provincial Administration SRDP Special Rural Development Programme LASC Local Government Service Charge GPT Graduated Personal Tax LA Local Authority PLGO Provincial Local Government Officer ILO International Labour Organisation IC Independence Constitution DFRD District Focus for Rural Development DDC District Development Committee DEC District Executive Committee DPU District Planning Units vii DDO District Development Officer PMEC Provincial Monitoring and Evaluation Committee LATF Local Authority Transfer Fund Act LASDAP Local Authorities Service Delivery Action Plan KLGRP Kenya Local Government Reform programme CDF Constituency Development Fund FPE Free Primary Education Fund CEBF Constituency Education Bursary Fund REPLF Rural Electrification Programme Levy Fund RMLF Roads Maintenance Levy Fund CKRC Constitution of Kenya Review Commission NCOP National Council of Provinces NARC National Rainbow Coalition NAK National Alliance of Kenya NCC National Constitutional Conference (Bomas) ODM Orange Democratic Movement PNU Party of National Unity HDC Harmonised Draft Constitution RHDC Revised Harmonised Draft Constitution CoE Committee of Experts on Constitutional Review PSC Parliamentary Select Committee CRA Commission on Revenue Allocation IEBC Independent Electoral and Boundaries Commission CIC Commission on Implementation of the Constitution (CIC) KNHREC Kenya