National
Assembly
Speaker Moses
Wetang’ula
during
inauguration
of August 27 as
Katiba Day at
KICC in Nairobi
/PCS
This is prompted by a report of an interview with the Speaker of
the National Assembly, Moses Wetang’ula, in Monday’s (August 25) Daily Nation.
It was very interesting on the secretive and centrally controlled nature of government under the Moi regime. But I want to pick up one issue: the argument that we have too many counties.
Wetang’ula blames Mwai Kibaki and Raila Odinga for having “arbitrarily” agreed that we have 47 counties instead of the 14 proposed in the Bomas draft produced by the National Constitution Conference (of which Wetang’ula was a delegate; No 209 ¾ as an MP). As I understand it, this is quite wrong.
Phase one
The first official draft, the Constitution of Kenya Review Commission’s (CKRC) of 2002, proposed a system of government that went right down to the very local level: “Powers are devolved to the following levels: (a) village, (b) location, (c) district, and (d) province.” The villages (there were 6,612) were to have elected councils. The same was true of districts - there were about 70 by 2002. The districts would have had a governor, and the villages a village head, both directly elected by the voters. The CKRC left it to Parliament to fix the details on provincial councils.
At the National Constitutional Conference (“Bomas”), people felt this was a bit complicated and the bottom two levels disappeared. It is interesting to see that villages reappeared in the County Governments Act ¾ but with appointed not elected councils, along with requirements to decentralise functions to villages, subcounties, wards and villages.
Bomas also felt that the existing provinces were not the right basis for the level between national and district levels. Some were so large that for people to access services at county level would be little easier than to get them from Nairobi.
A great deal of discussion took place on the matter of how many intermediate level bodies there should be. A CKRC Task Force considered 12, 14, 15, 16 or even 27, then proposed three options: 10, 13 or 18 units.
The commission finally decided to recommend 18 “zones”. Debate in the National Constitutional Conference focused to a considerable extent on these.
For reasons that are not really clear from documentation, the 18 zones were reduced to 14 in late February 2004. These are the “regions” as they were called in the Bomas draft. Nairobi was not to be governed on the same basis, as Wetang’ula observed.
These regions were not at all the equivalent of counties now. They would have largely coordinating functions, dealing with regional policies, standards and monitoring, although it included “actual development, operation and maintenance of regional infrastructure and services”, which meant “programmes and projects that extend across two or more districts of the region”. But there is no indication of what these might be (a hospital would be an example, of course).
The districts remained the principal level of devolution with basically the powers that counties have now.
That draft was, of course, taken over by government, mutilated, presented to a referendum in 2005 and rejected.
Phase two
In 2009 the Committee of Experts took over the task and its first draft drew heavily on the Bomas draft, but included only eight regions (the old provinces). It thought, “larger and fewer units [would be] better posed to provide checks and balances to the exercise of power at the national level.” In this draft, they also proposed 74 counties.
But comments on that draft suggested that the role of the regions was unclear. The CoE rightly said regions “had no clear source of funds” - they were indeed given no taxing powers in the draft - so they would hardly be able to coordinate counties, build their capacity and provide technical assistance. They would not be effective because they were composed of delegates from the counties they were supposed to control. And, as in the Bomas draft, they were supposed to plan, make policies, set standards and deliver services with “no indication as to what exactly the region was to handle or deliver”.
This was, I think, a weakness of the Bomas and the CoE first drafts.
Time was running short for the CoE. Perhaps for this reason they did not try to correct the problems. They did away with the proposed regions and reduced the counties to 47, based on the districts legally created before presidents went on a district-creating spree. These, it hoped, should be better placed to “apply checks and balances to the exercise of power at the national level”, with the “capacity to provide services close to the people”.
This aspect of the CoE revised draft was not changed in 2010 by the select committee of MPs that did so much harm to the draft. Has Wetang’ula forgotten that this committee, of which he was a member, changed the position of Nairobi to be a county like others - something he criticised in his interview. The CoE obviously found this one of the changes they did not dare interfere with.
Comparisons
Like some others, Wetang’ula criticised the constitutional arrangement because other countries do not have so many units. Canada has only “nine provinces” (actually 10) and Australia six states. Like the US, Canada grew from units that developed an identity during the colonisation process. They joined; Canada was not divided up. Australian history is similar. The smallest Canadian province (Prince Edward Island) has 5,660 square kilometres and 180,000 people, while the largest in size (Quebec) has 1,542,056 square km (272 times as large), and the largest in population (Ontario) has 16 million (about 89 times as many).
Mombasa is Kenya’s smallest county covering 212 square kilometres; Turkana is Kenya’s largest county with 98,598 square km (463 times the size). But Mombasa has 1,311,860 people and Turkana 1,022,773. Lamu has 167,332 people, while Nairobi has 4,434,756 or 26 times as many.
All these figures show you is that such comparisons are unhelpful. What really matters is the powers they have and the resources. Powers were inadequately discussed when our constitution was being prepared.
A Canadian province has its own prisons and its own justice system. It will have its own police force (there is also a national one). It runs schools at all levels and universities. Provinces run most hospitals.
The provinces also raise most of their own money (a few get no money from the national government). There are provincial income taxes (as well as national), and sales tax, VAT and various others. Kenyan counties are only allowed to levy rates and entertainment tax.
Is it working?
Wetang’ula suggested that “time is ripe for the country to have an honest discussion on parts of the constitution.” He said that 15 years is enough time “to know the areas that are working and those that are not”.
I suggest it’s time we stopped talking about the constitution “working”. The truth is that people are not working the constitution, as they should. I suggest you only know if a constitution should be changed if whole-hearted efforts have been made to make it work.
The constitution offers lots of ways to adjust devolution. The national government can and should give to counties the money they need - and on time. Adjustments can be made to the tasks performed by counties. Under Article 187, adjustments can be made to affect individual counties. Parliament can allow counties to raise other sorts of taxes.
Articles 190 and 192 provide methods to support counties that are struggling, and also to look into those that are badly run, and to rectify things.
Government is too addicted to quick fixes. Changing the constitution should not be one, and would fix nothing if people continue to ignore the constitution when it does not suit them, and those tasked to discipline them, including the voters, do not do so.
