This is the pillar of the Constitution and seeks to bring government closer to the people, with county governments at the centre of dispersing political power and economic resources to Kenyans at the grassroots
Devolution takes root
After years of sustained demands for the reinstatement of regional governments, devolution has taken root in the country, with 47 county governments and the national government.
Devolution was at the core of the formation of the formation of the Constitution of Kenya Review Commission (CKRC) that was headed by Prof Yash Pal Ghai between 2000 and 2004.
The Constitution of Kenya Review Act 2000 required the CKRC to consider people’s participation through the devolution of power; 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.
Majority of Kenyans who gave their views to the CKRC team demanded a devolved government to check widespread alienation due to the concentration of power in the national government.
The feeling of being marginalised and neglected, deprived of resources and victimised for political or ethnic affiliations intensified the push for devolution. Areas that did not support the president were penalised in terms of development and resources and discriminated against.
There was particular resentment of the Provincial Administration, which was accused of abuse of powers bestowed upon its officers.
The local authorities had failed to deliver services and had been turned into dens of corruption.
This debate rekindled memories of the manoeuvres that almost derailed independence after the Lancaster constitutional conference turned into a factional showdown over whether Majimbo could be entrenched in the Constitution.
While Kadu, led by Ronald Ngala pushed for regional governments, Kanu’s Jomo Kenyatta who later became the founding President, his deputy Jaramogi Oginga Odinga and Secretary-General Tom Mboya, were opposed to the system.
Ngala and his team who included Martin Shikuku, Masinde Muliro, Peter Okondo and William Murgor insisted there would be no Constitution, and therefore independence, without Majimbo. They were backed by colonial administrators — Wilfred Havelock, Michael Blundell and R.S. Alexander, the forces behind the push for Majimbo.
The acrimony that followed delayed the Lancaster conference for almost four months. The conference started on February 12, 1962 but lasted until May, when Kadu eventually had their way. Havelock and Blundell had convinced Kadu leaders that an independent Kenya with a Kikuyu and Luo majority would marginalise the smaller tribes. They argued that the only way to water down an all-powerful presidency and provincial administration was to form regional units.
By pushing for Majimbo, the colonialists argued that the British Westminister parliamentary model, which they wanted Kenya to adopt, gave too much power to the majority. They wanted the transfer of significant powers to regions, largely at the provincial level. The primary reason was to eliminate the Provincial Administration.
But although defeated by Kadu in entrenching Majimbo in the Constitution, Kenyatta and his team did not give up the fight. When he eventually took over power as the first Prime Minister and later as President in 1963, the Senate repealed the Majimbo clause in the Constitution in 1964.
The result was concentration of power in the presidency that eventually led to the political struggle that many have referred to as the Second Liberation.
While Daniel arap Moi, a former Kadu member who joined Kanu and succeeded Kenyatta, ruled, the Majimbo debate largely died although he implemented some Majimbo policies through the District Focus for Rural Development programme.
In 2001, Cabinet Ministers Shariff Nassir and William ole Ntimama called for the return to Majimbo “to ensure equitable distribution of resources” after Moi’s exit from power. Ntimama said Majimbo could be the answer to what he termed as “majoritarian avalanche.”
Moi, in his autobiography, The Making of An African Statesman by British author Andrew Morton, described Majimbo as “a system of checks and balances designed to safeguard the integrity of small tribes which were in danger of being overwhelmed by larger tribes.”
Odinga, in his book, Not Yet Uhuru, wrote that the system was not only expensive in terms of money and personnel, but also prevented the growth of nationhood and retarded economic development. It was “too legalistic and cumbersome, literally requiring a battery of legal experts and clerks at the centre and regions to interpret the dos and the don’ts hidden in the myriad legally worded clauses if it was ever to work.”
Against that background, Prof Ghai’s CKRC established detailed proposals for devolution, beginning with its objectives, and covering powers and institutions of devolved units, and their relationship with the national government, including funding for devolved activities. Several matters of detail were left to be dealt with in legislation. But it did propose structures, right down to village level, which were discussed by delegates at the Bomas of Kenya.
One group favoured the district, the other the region. The CKRC had chosen the district but found some coordinating role for the province. At Bomas a compromise was struck by giving provinces somewhat enhanced powers.
Kenya Constitution 2010
The 2010 Constitution largely followed the Bomas scheme. The Committee of Experts which finally delivered a new supreme law to Kenyans was faced with the same dilemmas that had vexed CKRC and Bomas, namely the levels and numbers of devolved units. At first it supported the idea of three levels (unlike the five of the CKRC). But 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 the independence arrangements.
Eventually, the draft constitution with devolution at the county level was overwhelmingly passed at the referendum with more than 60 per cent of the total votes. Kenya finally had a Constitution that devolved power and resources to the grassroots, a feat that had remained elusive for decades.
Devolution is enshrined in Chapter 11 of the Constitution. It legalises the formation of the 47 counties, each with its own government as spelt out in the County Governments Act, 2012. This Act also created elaborate structures to ensure the full implementation and success of devolution.
The county governments have executive and legislative authority, including the accompanying mandates and powers, to raise limited revenue, establish policies, plans, budget and governance. Under this Act, the national government is obliged to support the county governments.
The form of the devolved government is defined in Section Six, which states that though the two levels of government are distinct, they remain independent.