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Devolution in Kenya
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  What is devolution First a word about what devolution is. It is a system under which certain governmental powers are exercised by the counties, not by the national government, and through institutions elected by their people,. Counties can make law about, and administer these matters. They have resources, from the national government and those they raise in the county. The authority and institutions of the counties and their relationship with the national government are established in and protected by the constitution. In this way devolution is an integral part of Kenyas constitutional system. !o changes can be made to it except by an amendment of the constitution. mendments will re#uire the approval of two$thirds of all the members of the !ational ssembly and the %enate &voting separately' and support in a referendum. History The movement for devolution was prompted in large part because of the centrali(ation of the state, particularly the system of provincial administration &) '. ) was the bedrock of colonial administration* directly under the control of the governor, the ) dominated other governmental agencies in the field. It was responsible for law and order, and so had greater authority than even the police. The dministration )olice were an essential component of the ) , and like it, directly accountable to the governor. The long arm of the ) reached from the provincial capital to small villages. The absence of a law on the ) meant effectively that there were no restrictions on its activities, although in this respect it was not much differentfrom other colonial agencies. The provincial commissioner was without doubt the most powerful person inthe province, as the district commissioner was in the district. +ust before independence there was a movement &maimbo' for the transfer of significant powers to regions, largely based on provinces. primary reason was to eliminate the ) system. The plan was that central government would discharge its functions in the regions through regional authorities. -owever +omo Kenyatta and his close associates did not like this sharing of power and within a year repealed maimbo &after suitably bribing the members of the %enate'. In due course the authority of the ) was fullyrestored and Kenyatta made as much use of the ) as had overnor /aring during the emergency. The ) along with administration police, remains the most powerful arm of the government, indispensable to presidential rule0hence the dispute over the creation of county commissioners &to be discussed in another article'.  key trigger for the fight of the people against 1oi was the abuse of the enormous state and economic power that had been centralised in the office of the presidency. maor demand during the struggle was the dispersal of power, both vertically and hori(ontally. 2evolution was adopted as an obective in the famous %afari )ark national conferences in the 3445s. The Constitution of Kenya 6eview ct 7555 re#uired the CK6C to consider peoples participation through the devolution of power8 respect for ethnic and regional diversity and communal rights including the right of communities to organise and participate in cultural activities and the expression of their identities. It was to review the place of local government, the degree of the devolution of power to local authorities, and options for federal and unitary systems. What the people told the CKRC 9herever the CK6C went, it noted widespread feelings of alienation from central government because of this concentration of power in the national government, and to a remarkable extent, in the president. )eople felt marginalised and neglected, deprived of their resources8 and victimised for their political or ethnic affiliations. )rovinces or districts which did not support the president were penalised in terms of development and resources. )eople felt that under both presidential regimes, certain ethnic groups had been favoured, and others discriminated against. There was particular resentment of the ) which was seen as an extension of the presidents office, and of the arbitrariness and abuse of power by its officials. 1any had doubts about the legitimacy of the administration police, wanting forms of community policing at local levels. :ocal government had lost its authority and had been deprived of financial resources since independence.  They considered that their problems arose from government policies over which they had no control. 2ecisions were made far away from them. These decisions did not reflect the reality under which they lived, the constraints and privations which they suffered. They had lost access to markets for their agricultural products because roads had been allowed to fall into disrepair. Clinics did not have essential medicines.:and disputes were rampant, and land registries far away, leading to alienation of their land that they could neither comprehend nor do much about. s their poverty deepened, they could see the affluence of others* politicians, senior civil servants, cronies of the regime. lmost everywhere the people wanted the state restructured. 1ost asked for the devolution of power to local levels and greater role for community organisations. Constitutional Proposals for devolutionCKRC and Bomas CK6C established detailed proposals for devolution, beginning its with obectives, and covering powers and institutions of devolved units, and their relationship with the national government, including funding for devolved activities. %everal matters of detail were left to be dealt with in legislation. /ut it did propose structures right down to village level.The proposals were received favourably on the whole by /omas delegates &even though some groups were opposed in principle to the idea of devolution, including Kibaki and his ministers'. !o disagreement was expressed with respect to the obectives of devolution. The maor disagreement was on what should be the principal unit of devolution.;ne group favoured the district, the other the region. The CK6C had chosen the district but found some co$ordinating role for the province. t /omas a compromise was struck by giving provinces somewhat enhanced powers. /omas accepted CK6C proposal to abolish the ) &but not administration police'. -owever, Kibakis government sabotaged the draft as is well known,producing what is known as the 9ako draft which was offered to, but reected by the people, in a referendum in 755<. Wako Draft The 9ako draft omitted altogether the concept of =devolution>, reverting to =local government>. It proposedonly one sub$national unit0the district. 2istricts would have law making powers &though not as many as in the CK6C or /omas drafts'. /ut the national government could override district laws even if on a subect under the district list.There was little detail about how district authorities would be constituted. The 9ako draft reected a second chamber to safeguard the interests of districts. !or would there have been any provinces, which might have acted as some kind of buffer between the centre and districts.There was no financial allocation to districts. There would have been 337 districts* so small that they would inevitably have had limited resources and been unable to stand up to interference by the centre. !or did it abolish provincial administration, or the administration police &which presumably would have operated as arms of the )residents ;ffice'. The creation and dissolution of districts would depend ultimately on decisions of the )resident. ;verall, districts would have been little more than glorified local authorities. It is widely believed that the elimination of devolution was a primary cause of the reection of the 9ako 2raft. 2010 Constitution The 7535 Constitution largely followed the /omas scheme. The Committee of ?xperts was faced with the same dilemmas as had vexed CK6C and /omas, namely the levels and numbers of devolved units. t first it supported the idea of @ levels &unlike the < of the CK6C and @ of /omas'. /ut later it opted for a  single lower level to avoid a =complex system>. The units at that level were labelled counties and their boundaries largely followed district boundaries drawn as part of independence arrangements. O!e tives of devolution   special feature of devolution in Kenya is the close attention given to its obectives and principles &in line with the general approach of the Constitution to the exercise of state power'. In many countries devolutionis seen merely as the sharing of power, neutral perhaps as to how that power would be exercised. In Kenya devolution was seen as necessary to achieve various values and principles. To some extent, the obectives can also be seen as a response to the dire conse#uences of devolution that critics predicted &such as secession, oppression of minorities within the county, the breakup of the country, expense and lack of capacity'. The best way to understand the obectives of devolution is to examine rticles 3AB and 3A< &which have remained unchanged from the CK6C draft'. In addition, county governments are bound by the constitutional principles in rticle 35 and chapter  on integrity. rticle 3ABs 4 obectives can be consolidated into the following principal obectives &with some overlap between them'. Diversity   maor reason for devolution ever since before independence has been the recognition of Kenyas diversity. rticle 3AB places special emphasis on self government, particularly the rights of minorities and marginalised communities, and other groups, to manage their own affairs and development. rticle 3A< re#uires the promotion of gender e#uity and e#uality in counties. #ational unity Throughout the Constitution diversity and national unity are balanced, almost two sides of the same coin. %o it is with devolution. The former centralised system under a powerful presidency tended to ethnicise politics and politics of exclusion. !ow devolution provides many sites of power, reducing the danger of exclusion. The assumption is that through democracy, recognition of diversity, and forms of self$government, all communities will feel part of the country, with increased loyalty. The rules about inter$dependence and co$operation between the national and county governments should strengthen national unity. The emphasis is on inclusion of all groups at both national and county level. Demo ra y and a ountaility   maor deficit of democracy in Kenya has been the absence of peoples involvement in politics and policydiscussions, or their ability to demand accountability of the government. ?ven in the five$yearly elections their hori(on has been circumscribed by tribalism. The location and exercise of powers about the everyday needs of the people should provide the foundations of participatory politics. 2evolution creates more opportunities for the people to choose their leaders, and great expansion in public participation. 2emocracy should also be strengthened by separation of powers and checks and balances through new centres of authority. )eople in rural and urban areas will be able to decide for themselves &or influence decisions' on many matters of local concern and to participate in greater number of debates, and elections. overnments and officials at closer proximity to them may become more responsive and be compelled to be more accountable. ;rdinary people will be able to demand information and accountability, which at the national level is left to a few !;s.  Promotin$ e onomi and so ial development  2evolution is expected to lead to more rapid and balanced economic and social development. The centralised system, with the concentration of all government institutions and decision making in !airobi, led to the concentration of economic activities in the capital city area, to uneven development and disparities of economic opportunities. This resulted in the impoverishment of many regions and communities and the drift towards urban areas. 9ith new governments in counties,  there will be greater incentives and opportunities for economic and social development throughout the country. County governments will actively promote growth and seek to achieve a high degree of self$sufficiency, and respond to local needs and circumstances. )eople will enoy easier availability of services There will emerge new centres of growth, in which people have opportunities for investment and employment.?fficiency should come from local knowledge. nd the incentive to create capacity and skills locally lies in the rule that devolved functions will be transferred to a county only if has the capacity to discharge them.   nd counties will no doubt compete with each other. Promotin$ %&uitale Distriution of Resour es There has been much debate as to whether devolution will lead to a more e#uitable distribution of resources8, some people think a centralised government is more likely to achieve this. /ut in Kenya many counties outside three or so maor urban areas have done poorly, and even in urban areasthe main beneficiaries are often not the local people. The Constitution now re#uires the e#uitable sharing of national and local resources throughout Kenya. The scheme of the financing of counties is biased in favour of the less developed areas0though perhaps not sufficiently so. ' hievin$ o!e tives These values and obectives are woven into the fabric and structure of devolution and in the relationship between the national and county governments. /ut it is no good being too starry$eyed about devolution. The global record shows some significant successes and some spectacular failures. Circumstances are more propitious than they were for maimbo. That was a defensive measure, born out of fear, to secure for smaller communities some powers of self$government. In /omas the demand for devolution was for positive reasons* to strengthen national unity, protect diversity, and reinforce democracy. t independence there was secessionist activity in one part of the country. t /omas there was universal acceptance of the undivided sovereignty of Kenya, and a deep commitment to the concept of a single and e#ual citi(enship for members of all communities. This devolution has been negotiated among Kenyans over a long period and is the result of compromises0not an imposition by a departing colonial power. nd unlike with maimbo, people of all counties have welcomed devolution and are looking forward to participating in its affairs.  D%()#)*)O# O( D%+O,-*)O# 2evolution is the transfer of powers from the central government to local units' Kenya will be divided into BA counties. There will be a president, ministers, senator, governor, and members of parliament. 2evolution can take various form8 a' dministrative $ For example the establishment of overnment ;ffices for the 6egions, or, pre$3444, the practice of transferring responsibilities from central government departments to territorial departments of the same overnment. b' ?xecutive $ where the prerogative powers of the DK overnment are transferred to ministers of devolved governments, usually under statutory authority. c' :egislative $ where law$making powers are transferred to other legislatures O!e ts and prin iples of a devolved $overnment. ;ne of the obects and principles of a devolved government in accordance to the proposed constitution, rticle 3AB is to recogni(e the right of communities to manage their own affairs and further their development. This will give the people a sense of identity and self$empowerment. This is because they will feel recogni(ed in their contribution to the growth of their own county.   nother principle is to protect and promote the interests and rights of minorities and marginali(ed communities. -ence the minorities will not feel sidelined. This will promote a
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