There have been two approaches to devolution in Kenya.
The first is to emphasise unity and bring together its several communities as one nation; the other is to emphasise diversity and keep the communities separate. Bomas followed the first and the five major tribes the second.
The system of devolution adopted in 2004 at Bomas and the one in the present Constitution are completely different. The 2004 draft aimed at strengthening the unity of Kenya, in which devolution was designed to bring different communities closer together, rather than as now to promote their separation.
It was developed by scholars with an extensive understanding of the systems of devolution in Africa, discussed and approved by millions of Kenyans, and adopted at Bomas.
Now the objectives of devolution appear in the Constitution as in Bomas, but there are important differences.
Before the British came, what we call Kenya today was not a state but a conglomeration of ethnic communities with considerable diversity in terms of religion, culture, agriculture, mode of livelihood, and, to some extent, relations with other communities. The British kept them separate to prevent them from challenging their rule and created administrative units that reflected the ethnic boundaries and the colonial desire to divide them.
There was also a larger unit — the province — or, in the plan for majiimbo in the 1963 Constitution, the regions.
After independence, districts and provinces continued to be units for central government control of the country, and the provincial administration was the tool for that control. In fact, for many years it was the tool of the party, too, as we had in law or reality a one-party state.
During discussions before and during the Bomas conference, most of the communities who had been marginalised by the British and Kenyan governments demanded that they should have control of their own affairs. There was considerable sympathy among members of Bomas and also concern that this should not undermine the notion of “one indivisible sovereign nation” — as expressed in the Preamble — as well as concern that some districts might not have enough resources. The aim of devolution was to strengthen national unity while at the same time allowing power to all Kenyans at lower levels.
The eventual model was to have 14 regions, with Nairobi as a metropolitan capital city. The decision to have so many regions, and not to stick to the eight provinces, had two purposes. It broke away from the colonial structure, founded on ethnicity, and it tried to bring regional headquarters closer to the people in what had been huge provinces like Eastern and Rift Valley.
Members of regional government would attend meetings of the district council, without a vote. Districts had their own government — a council and executive, with limited power. The functions of each level were spelled out.
The aim of this arrangement was to acknowledge the interests of various communities, within a framework that brought together people of different communities. Their primary funding would come from the regional government.
A major change was that, as the Bomas draft said “upon the holding of the (first elections under the Constitution) … the system of administration comprising Assistant Chiefs, Chiefs, District Officers, District Commissioners and Provincial Commissioners commonly known as the Provincial Administration shall stand dissolved”. It was considered that this highly centralised system was quite incompatible with a system of devolution designed to put real powers into the hand of local communities.
Devolution units now
The system changed in three very important respects as it went through the constitution-making stages that followed the 2007-8 post-election violence.
The intermediate level of regions disappeared. It was taken away by the Committee of Experts in their second draft — partly at least because the functions of that level had not been spelled out clearly and had been criticised by commentators.
This would have left all devolution pegged on the districts. There were two problems, at least, with districts. At the time the constitution-making process started in 2001 there were already 74 of them. By the time the whole process ended eight years later, there were far more. President Kibaki had gone on a district-creating spree for political gain. And they were illegally created. A court in 2009, by which time there were 210 districts, held that the only legally created districts were the 47 that were in an Act of 1992.
The Committee of Experts, therefore, decided that those 47 should be the basis for their model of devolution. An unfortunate consequence of this was a return to essentially the colonial, ethnic-focussed boundaries.
The other big change was that the Provincial Administration was no longer to be abolished. The Committee of Experts draft had said that a bit like Bomas, “the system of administration commonly known as the Provincial Administration shall be phased out and the national government shall restructure its administrative arrangements to accord with and respect the system of devolved government established under this Constitution”. But the politicians (at that Select Committee in Naivasha in 2010) said the Provincial Administration was to be retained, but “to accord with and respect the system of devolved government established under this Constitution”.
This gave a green light for the national government to keep their control mechanism — and they have done it, rebranding it as the National Government Coordination system, but fundamentally it is unchanged. It remains incompatible with a true system of devolution.
The effect of the changes in units of devolution has been dramatic. There are now 47 counties — so that each unit’s ability to negotiate with the national government and other institutions is much less than if there had been fewer and stronger units dealing directly with the government, as Bomas proposed. It also means that ethnicity becomes the basis of counties, which goes against the general principle of the nature of the nation set out in the Constitution (“one indivisible sovereign nation”). The diffusing of power among so many units continue the dominance of the Centre.
On the other hand, the lifestyle of small-sized tribes or others without resources may get worse, as indeed has already happened. Instead of a degree of self-reliance, they have become more dependent on the State, as life has become increasingly hard. So the recent quarrel about the size of financial allocations among each of the 47 counties is not surprising.
As we reflected on the long-term consequences of these changes, we came across a copy of the Daily Nation with a broad heading: ‘Raila steps up call for 14th regional units’. He is essentially urging the adoption of the system as in Bomas draft.
He advocates (what we always thought he had believed in) the Bomas scheme of devolution in which there would be three levels.
He advocates the third tier of government: 14 regional governments which he thinks would make devolution effective because they are economically stronger. He says that the number of governors should be reduced from 47 to 14 and the devolved parliaments to 14.
He acknowledges that the system he advocates was proposed in Bomas. It would be interesting to note the impact of his proposal. In the same story, the Nation reminds us of the statement by President Kenyatta, who advocates a major transformation of the Constitution.
Our advice is to get an honest, hard-working person to take the responsibility — or even better, let us adopt the Bomas constitution, with a parliamentary system. Would Raila go with it?