The History Of Devolution in Kenya Since Independence

Kenya has made strides from centralisation to devolution. This article explores the history of devolution in Kenya. The journey from centralisation to decentralisation in Kenya.

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Past Dynamics (Devolution)

The history of devolution in Kenya begins with the independence constitution. KANU and KADU had negotiated a strong devolution structure. KADU saw the devolution structure as important to safeguard the interests of smaller ethnic communities. This is because big ethnic communities dominated KANU.

The independence government rolled back the strong system of devolution. It dissolved the Senate, regional governments and regional assemblies. This marked the end of devolution and decentralisation and the beginning of consolidation or centralisation. Power and authority consolidated under the presidency.

Then came Act No. 10 of 1967 that aimed at strengthening the predatory centralised state. It followed the dismantling of the devolved system of governance. The Act became the Constitution of Kenya until 2010 with numerous amendments.

Delegation replaced devolution at the local and regional levels. The government set up the Provincial Administration to facilitate public administration. The Provincial Administration became a tool for institutionalizing exclusion, abuse of power, marginalization, human rights violations and state terrorism.

Centralised power generally meant unaccountable power. Kenya has an extensive documentary of the legacy of impunity and corruption that followed the dismantling of the decentralised or devolved system.

The Era of Centralization and Central Planning

Before the new Constitution passed in 2010, and the advent of devolution in Kenya, the country survived a five-decade legacy of under-development where:

• The powerful presidency and centralisation of power led to bad governance and misuse of power. This wreaked havoc on the people and led to gross violation of human rights. The people wanted an end to all this misuse of power. Principles of good governance, including separation of power and strong checks and balances, arose.
• There existed systemic marginalisation and exclusion of peoples along ethnic and regional lines.
• There existed skewed distribution and non-sharing of resources by the centralised government.
• A legacy of poverty, lack of participation and the infantilisation of citizens took root. It disempowered citizens extensively.

Centralisation of power in Kenya is the problem that leads to the capture of the state economic and political power by a few political elites. The Interim Report of the Task Force on Devolved Government (ITFR) documents this concept.

ITFR says the concept of republican government as an instrument in the service of the welfare of the people disappeared as the government ceased to serve the people and became the property of a few.

The report notes that people sought election or appointment to public offices, not to serve the people, but to amass wealth at a personal level. Election or appointment to certain public offices became the easiest way to amass wealth and become rich. The notion of servant leadership disappeared as personal aggrandisement took centre stage.

ITFR says corruption, mismanagement and plunder of public resources as well as political patronage were rampant. This caused the country’s economy to almost collapse. It reduced the lives of the ordinary people to survival for the fittest.

The report says the allocation of resources and development opportunities to individuals and different parts of the country was skewed. It was done based on political patronage instead of objective criteria and the most important person in this process became the president.

This excluded many people from government services creating a feeling of marginalisation in many parts of the country. A strong feeling of exclusion led to the perception that a person needed one of their own tribespeople in a key political public office for them to access government services and opportunities.

The report also states that centralised planning and the concentration of power at the national level of governance have been identified as one of the key obstacles to both development and democratisation.

The interim report says that centralisation of power and economic planning and administration denies communities the opportunity to shape or influence their destiny in the matters of both development and democratisation.

The central government officials responsible for planning are far removed from the peculiar circumstances of the various regions or localities of the country. They are therefore often ill-equipped to design optimal solutions to the development problems of these areas.

Moreover, it argues that due to the lack of an adequate appreciation of the critical factors that influence development, central planners tend to develop generalised and unrealistic plans that fail to sufficiently address the developmental needs of the local community.

Centralised administration undermines accountability as the field officers can easily shift the blame for their defective implementation or misuse of resources to their superiors at the centre. The identities of the responsible officers at the centre are normally vague.

Decentralisation overcomes these challenges by directly connecting the state actions at the local level with officers to be held accountable.

In 1999-2000, the Institute of Economic Affairs facilitated the development of four Scenarios for Kenya’s development namely the El Nino, Maendeleo, Katiba and the flying geese Scenarios.

During the five decades, one could argue that we suffered the El-Nino Scenario in the 1970s, 80s and 1990s, which entailed the ethnic and political violence, a corrupt state, economic decline and numerous pressures on the state.

The NARC-Kibaki regime facilitated Maendeleo (economic recovery and growth) without governance reforms and the Maendeleo edifice collapsed in the PEV situation.

The Grand Coalition administration focused on and spearheaded the Katiba (governance reforms) Scenario. This included the facilitation of the making of the Progressive Constitution of Kenya (COK 2010).

The scenario was without a focus on economic and social democratisation in terms of ownership of the factors of production and access to better opportunities against a rapidly growing population and the emergence of a youth bulge.

The enactment of the Constitution offered the nation a platform to pursue the Flying geese model/ Scenario for democratic developmentalism.

The post-election crisis was largely due to weaknesses in key institutions of governance including the constitution, the judiciary, the police, the executive, the electoral system, and parliament.

The weaknesses of these institutions can be traced back to constitutional and legal amendments made during the first three decades of independence in order to centralise power in the executive and minimize checks on executive power by other institutions.

The changes resulted in centralisation and monopolisation of power as opposition political parties were initially frustrated and eventually outlawed. This ultimately resulted in state capture by a small elite that wielded political power. The political elite used the state to accumulate wealth at the expense of national development.

The monopolisation of power also led to the stifling of democratic development. The governance of the country drifted from constitutional rule to personal rule, which distorted national goals set at our independence of fighting poverty disease and ignorance.

Results of Centralisation and Central Planning

The dream of a constitutional state was never realized in Kenya. The independent constitution was amended to remove virtually all the checks on executive power thereby putting to rest the notion of constitutionalism – limited government.

Executive power, however, continued to be legitimised ostensibly through the constitution. The executive was very conscious of the need to trace back the exercise of its authority to the constitution despite the fact that the values of the constitution were not (in reality) having any impact on the exercise of executive power.

Ogendo describes this paradox of states in the third world that continue to have the facade of constitutional democracy – all the institutions, processes and procedures but with no practice of the values of constitutional democracy – as having ‘constitutions without constitutionalism’.

Between 1963 and 1990 there were more than 30 constitutional amendments primarily geared towards the monopolisation of power by the ruling party and the centralisation of power around the executive (particularly the President).

During this period, the political competition was muzzled and civil society withered as it was increasingly intimidated, co-opted or banned from carrying out certain activities by the state. Over time, the state occupied the entire public sphere crowding out both political actors and the civil society.

Apart from political and social control, the state also restated the discriminatory policies of the colonial government by favouring certain sectors of the economy while undermining others through policy and legislation. In keeping with the dominant economic model of the time, of the developmental state, the state situated itself as the main agent of development.

This model advocated for comprehensive centralized planning. The policy was expressed in the national economic blueprint – Sessional Paper No.10 of 1965. It advocated focusing development and investment on the high potential areas on the understanding that the economy would experience rapid growth due to the higher returns on investment in those areas.

The policy failed to address the effects of colonial bias in the zoning of areas as high, medium or low potential.

The zoning was primarily based on the needs of the settler economy that were anchored on the British needs at the time. Thus, though well-meaning, the policy on centralised planning reinforced the marginalisation of the areas that had suffered neglect during the colonial period.

There was no express recognition of the need to correct the imbalances created by the discriminatory practices of the colonial government. Although the economy recorded impressive growth of about seven per cent in the first decade of independence, the benefits of the growth were not equitably distributed. It was biased in favour of ‘high potential’ areas.

The independence government also adopted the policy of ‘Africanisation’ of key commercial enterprises in order to give Africans the ‘commanding heights of the economy’.

This policy was founded on the understanding that political independence without economic power was meaningless. It sought to give Africans a foothold in the national economy that they had been denied by years of discriminative colonial policies and legislation.

This well-intended policy was unfortunately subverted by political biases that existed at the time. The political elite ensured that the ‘Africanised’ businesses went to their friends, colleagues or political supporters.

The execution of this policy had the unintended effect of creating an economic elite and further exacerbating the economic difference between the favoured areas as the elite predominantly were from the high potential areas.

The desire of the ruling party and president to centralise and monopolise power was primarily driven by the need to exercise unlimited control over state resources. This was meant to dispense patronage to political supporters (both individuals and ethnic communities).

The monopolisation of political power by the ruling party and the removal of limits on the exercise of executive power inevitably led to massive abuse of power.

Present Dynamics

Shift from Centralisation to Decentralization

The history of devolution in Kenya was not without a struggle. The struggle for constitutional reforms has its roots in the desire to correct the deficiencies in the central governance framework of the country.

A central objective of the struggle has been the restoration of power to local communities to manage their affairs particularly in matters of local development. This has been facilitated by the advent of decentralisation through devolution.

It can be argued successfully that the dynamics witnessed over since independence motivated Kenyans to ensure that devolution was secured in the constitution substantially for various reasons.

First was to inform the directive principle of state policy and legislation as regards governance and the delivery of public services. Secondly, devolution has been provided in the constitution to secure it from sabotage as the history of undermining devolution in Kenya remains fresh and widely experienced by the masses.

Similarly, devolution was secured in the constitution to facilitate citizens’ participation in governance as a basic principle and value outlined in the constitution. Lastly, it was to guard against the establishment of governments that are not sanctioned by the constitution.

As Kenya is implementing the constitution and rolling out the devolved system of governments, various dynamics are playing out that policymakers and advocates of devolution need to pay close attention to. These dynamics include power, administrative, financial/fiscal, service delivery, participation: regional and ethnic dynamics, participation: gender and demographic dynamics and conflict and security dynamics.

Status of Decentralization (Devolution)

Kenya is emerging from a state of centralisation and central planning characterised by poor governance. This is demonstrated by widespread corruption, ethnic conflicts, insecurity, political uncertainty, and poverty, et cetera.

Poor governance has resulted in, among other negative outcomes,

• the alienation of large portions of the society from the mainstream economy;
• the squandering of public resources leading to low levels of development and massive poverty;
• ethnic animosity due to perceptions of historical injustices; and
• cut-throat political competition and intolerance.

The Constitution of Kenya, 2010 has fundamentally altered this defective governance framework of the country through various far-reaching reforms. The most critical of these reforms is the introduction of a new normative framework or value system. This is achieved through:

• the preamble,
• Article 10 and Chapter Six of the Constitution,
• devolution of power through the creation of two levels of government (Chapter 11),
• constraining of executive power through the introduction of various checks on the powers of the executive, particularly the president (approvals for key appointments and consultation before making key appointments, the creation of various independent commissions to safeguard democracy and constitutionalism) and the introduction of a modern expansive bill of rights.)

Devolution is likely to have the most profound impact on the governance of these far-reaching reforms. The elections fill the county posts outlined in the constitution: 47 governors, who head the executive branch of county governments and who appoint members of executive committees; and 1,450 ward representatives, who are members of county assemblies.

Ward representatives are sworn in and they also elected speakers of their assemblies.

The central government has to ensure consistent allocation of funds to the counties every financial year. Several new institutions exist to manage the process of devolution. These include:

• The defunct Transitional Authority, which oversaw the shift of powers from Nairobi to the county level;
• The Commission for Revenue Allocation, which manages the distribution of budgetary resources between the central government and the counties and among the 47 counties;
• The Task Force on Devolved Government (TFDG), appointed by the government, which put in place six significant bills that would ensure the development of administrative structures to guide the devolution process;
• The defunct Commission for the Implementation of the Constitution, whose mandate included, but extended well beyond ensuring the constitutional provisions regarding devolution are respected.

the objectives of devolution in Kenya

Kenyans hope in the long term that decentralisation of government will address the shortcomings of central planning, such as societal inequalities, resource disparities, economic gaps and political concentration. This will be achieved through the objectives of devolution (Article 174) as follows:

• to promote the democratic and accountable exercise of power;
• to foster national unity by recognising diversity;
• 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
• to recognize the right of communities to manage their own affairs and to further their development;
• to protect and promote the interests and rights of minorities and marginalised communities;
• to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
• to ensure equitable sharing of national and local resources throughout Kenya;
• to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and
• to enhance checks and balances and the separation of powers.

What is being devolved?

The Fourth Schedule of the Constitution specifies the division of functions between the national government and the county governments.

The 47 counties, each of which has their own executive and legislative branches of local government, are responsible for functions like agriculture, transportation, trade licenses, sanitation, pre-primary education, village polytechnics and most health facilities. The counties are in charge of implementation and service delivery within their jurisdiction.

At least 15 per cent of the national budget goes to these county governments, with provisions for additional funds under certain circumstances (conditional grants, Equalisation Fund, etc.)

The national government retains responsibility for functions like security, foreign policy, national economic policy and planning, many areas of education, the overall policy in some devolved functions such as health, agriculture, veterinary services as well as the management of Level 5 hospitals.

(Additional information obtained from various internet sources.)