Devolution: The Hits And Misses
Updated on: Sep 04, 2020
Devolution was one of the key reforms brought about by the Constitution of Kenya 2010. And it is fair to say devolution was the compromise, nay, the price that the country paid for the 2007/8 violence.
At the heart of that violence were feelings of economic exclusion in some areas as well as social groups such as the youth.
Proponents of devolution wanted it as a guarantee for equitable growth and a safeguard in the financial arrangements in the Constitution. In addition, it was necessary to have the Senate, which would defend devolution.
They accused the centralist economic argument, which was to grow high potential areas and use the proceeds to pull up the marginalised areas, as having resulted in extreme marginalisation of areas such as North Eastern parts of Kenya.
They also argued that even after 100 years of state support, the maize economy was still about 10 billion annually, while the beef cattle economy, which had received no state support since independence, was 110 billion.
These arguments have surfaced strongly in the ongoing Senate debate for the third basis formula of allocating shareable revenue among counties.
It is worthwhile to remember that this is not the first time we have had devolution. Indeed, the independence constitution reaffirmed regional governments, and provided that 32 per cent of taxation on all commodity imports (article 138), and 100 per cent of taxation on petroleum imports (article 137) would go to the regional governments.
Constitutional amendments
These arrangements, however, did not last very long. In a series of constitutional amendments, the regional assemblies were turned into provincial councils and the Senate was absorbed by the House of Representatives.
When the Constitutional Amendment Act (No. 4) of 1966 was assented to on January 3, 1967, it was the final nail on the coffin of devolution. The senators went for the long break as senators, and returned in March as MPs.
As we celebrate 10 years of the 2010 Constitution, it is appropriate to take stock of how devolution is faring. Here then are my reflections.
First, it has improved the performance of agriculture. The sector expanded twice as fast during the first term of devolution, compared to the five years immediately before it. This is true both at primary production and value-addition levels.
To compare like for like, I have looked at agricultural performance in the five years immediately before, and immediately after devolution. In addition, I have used constant 2001 prices to eliminate the effects of inflation. The data is provided by the Kenya National Bureau of Statistics, in the annual Statistical Abstracts.
Gross marketed agricultural production grew 11.2 per cent between 2007 and 2012, compared to 24.2 per cent between 2013 and 2018! Agricultural value addition expanded by 9.3 per cent in the immediate pre-devolution period, compared to 26.2 per cent between 2013 and 2018.
Secondly, there were dramatic improvements in primary healthcare. The number of registered medical laboratories has more than doubled from 1,262 in 2016 to 2,767 in 2018. So too has the number of lab technicians and technologists, growing from 8,385 to 15,310 in the same period.
The number of registered medical personnel has also grown tremendously in the last decade, but much faster at 50 per cent during the devolution period, from 117,159 in 2014 to 175,681 by 2018. This compares to a growth of 39 per cent in the five-year period immediately before devolution. The bulk of this growth is in cadres directly responsible for primary healthcare such as nurses, clinical and public health officers.
One way to reflect on the state of primary healthcare is to look at the proportion of births occurring in a health facility.
This proportion improved from 83.4 per cent of all births in 2014, to 94.7 per cent in 2018. But it is by looking at county-specific data that the dramatic improvements stand out: Bungoma County has improved from 58.6 per cent of births occurring in a facility to 95.2 per cent and Samburu from 50.2 per cent to 89.5 per cent while Marsabits figures rose from a paltry 32.7 per cent to 89 per cent.
As for the misses, I shall highlight four.
The first one is weaknesses in the constitutional architecture. There is no easy recourse nor sanction for wilful refusal or neglect to carry out responsibilities assigned to an institution by the constitution. Two examples: Most assemblies are way behind schedule in the consideration of audited accounts, yet this is a critical step in oversight.
But there is no immediate penalty for these assemblies! Second, the National Treasury and the National Assembly routinely ignore the recommendations of the Commission on Revenue Allocation.
The penalty involved when assemblies fail to discharge their constitutional responsibilities is essentially dissolution. Yet this is too drastic an action, and not easy for an individual citizen to mount. In the case of the National Treasury, there is in fact no penalty.
Incentives and interests are misaligned, resulting in less than optimal operations of institutions. For instance, the incentive/interest structure does not support the Senate to be the defender of the interest of counties.
Sabotage
This misalignment has been dramatically illustrated by the current stalemate over the third-generation basis of county allocations of revenue.
We have a situation where senators of counties that stand to receive more funds oppose the formula. Some sabotage county governments because they want to be governors.
Inelegant drafting also left loopholes. Take for instance public finance. Whereas Article 224 of the constitution imposes the passage of the Division of Revenue Bill as a precondition for crafting and subsequent passage of the county budgets expressly, Article 221 does not do the same for the national budget, creating a loophole that was spectacularly exploited by the National Treasury, the National Assembly and the Executive in 2019, to delay release of county monies for several months.
When the National Assembly failed to pass the Division of Revenue Bill in 2019, they, however, approved the National Governments Appropriation Act, which meant that the national government, independent commissions and institutions could spend while counties could not. The Supreme Court ruled that such acts are in fact unconstitutional.
Devolution also has suffered from reluctant execution, as well as narrow interpretation of the Constitution, by mainly the technocratic class, or to use the flavour of the moment, the "deep state".
This lack of will has a rather current example. At the end of the 2019/20 financial year on June 30, 2020, the National Treasury had still not disbursed around Sh30 billion to the counties. Senior Treasury officials argued that they needed a law to be passed to enable them to disburse the funds, while in fact no such thing was necessary!
National bureaucracy
Another area where the national bureaucracy has simply refused to live up to the spirit of the constitution is the role of regional development authorities and the road agencies Kenya Rural Roads Authority and Kenya Urban Roads Authority. Both agencies deal with county roads, yet this is a county function. The same case applies to regional development authorities. That is why you will find national water agencies drilling neighbourhood boreholes and water pans!
As we progress towards full implementation of the Constitution, we must avoid the impasses and negative attitudes towards devolution in two ways.
First, the devolution family will have to do better in selling the benefits and outcomes of devolution. Second, a firmer political stance is necessary as a counter-weight to the powerful central executive and national bureaucracy, which is intent of rolling back devolution.
At the heart of that violence were feelings of economic exclusion in some areas as well as social groups such as the youth.
Proponents of devolution wanted it as a guarantee for equitable growth and a safeguard in the financial arrangements in the Constitution. In addition, it was necessary to have the Senate, which would defend devolution.
They accused the centralist economic argument, which was to grow high potential areas and use the proceeds to pull up the marginalised areas, as having resulted in extreme marginalisation of areas such as North Eastern parts of Kenya.
They also argued that even after 100 years of state support, the maize economy was still about 10 billion annually, while the beef cattle economy, which had received no state support since independence, was 110 billion.
These arguments have surfaced strongly in the ongoing Senate debate for the third basis formula of allocating shareable revenue among counties.
It is worthwhile to remember that this is not the first time we have had devolution. Indeed, the independence constitution reaffirmed regional governments, and provided that 32 per cent of taxation on all commodity imports (article 138), and 100 per cent of taxation on petroleum imports (article 137) would go to the regional governments.
Constitutional amendments
These arrangements, however, did not last very long. In a series of constitutional amendments, the regional assemblies were turned into provincial councils and the Senate was absorbed by the House of Representatives.
When the Constitutional Amendment Act (No. 4) of 1966 was assented to on January 3, 1967, it was the final nail on the coffin of devolution. The senators went for the long break as senators, and returned in March as MPs.
As we celebrate 10 years of the 2010 Constitution, it is appropriate to take stock of how devolution is faring. Here then are my reflections.
First, it has improved the performance of agriculture. The sector expanded twice as fast during the first term of devolution, compared to the five years immediately before it. This is true both at primary production and value-addition levels.
To compare like for like, I have looked at agricultural performance in the five years immediately before, and immediately after devolution. In addition, I have used constant 2001 prices to eliminate the effects of inflation. The data is provided by the Kenya National Bureau of Statistics, in the annual Statistical Abstracts.
Gross marketed agricultural production grew 11.2 per cent between 2007 and 2012, compared to 24.2 per cent between 2013 and 2018! Agricultural value addition expanded by 9.3 per cent in the immediate pre-devolution period, compared to 26.2 per cent between 2013 and 2018.
Secondly, there were dramatic improvements in primary healthcare. The number of registered medical laboratories has more than doubled from 1,262 in 2016 to 2,767 in 2018. So too has the number of lab technicians and technologists, growing from 8,385 to 15,310 in the same period.
The number of registered medical personnel has also grown tremendously in the last decade, but much faster at 50 per cent during the devolution period, from 117,159 in 2014 to 175,681 by 2018. This compares to a growth of 39 per cent in the five-year period immediately before devolution. The bulk of this growth is in cadres directly responsible for primary healthcare such as nurses, clinical and public health officers.
One way to reflect on the state of primary healthcare is to look at the proportion of births occurring in a health facility.
This proportion improved from 83.4 per cent of all births in 2014, to 94.7 per cent in 2018. But it is by looking at county-specific data that the dramatic improvements stand out: Bungoma County has improved from 58.6 per cent of births occurring in a facility to 95.2 per cent and Samburu from 50.2 per cent to 89.5 per cent while Marsabits figures rose from a paltry 32.7 per cent to 89 per cent.
As for the misses, I shall highlight four.
The first one is weaknesses in the constitutional architecture. There is no easy recourse nor sanction for wilful refusal or neglect to carry out responsibilities assigned to an institution by the constitution. Two examples: Most assemblies are way behind schedule in the consideration of audited accounts, yet this is a critical step in oversight.
But there is no immediate penalty for these assemblies! Second, the National Treasury and the National Assembly routinely ignore the recommendations of the Commission on Revenue Allocation.
The penalty involved when assemblies fail to discharge their constitutional responsibilities is essentially dissolution. Yet this is too drastic an action, and not easy for an individual citizen to mount. In the case of the National Treasury, there is in fact no penalty.
Incentives and interests are misaligned, resulting in less than optimal operations of institutions. For instance, the incentive/interest structure does not support the Senate to be the defender of the interest of counties.
Sabotage
This misalignment has been dramatically illustrated by the current stalemate over the third-generation basis of county allocations of revenue.
We have a situation where senators of counties that stand to receive more funds oppose the formula. Some sabotage county governments because they want to be governors.
Inelegant drafting also left loopholes. Take for instance public finance. Whereas Article 224 of the constitution imposes the passage of the Division of Revenue Bill as a precondition for crafting and subsequent passage of the county budgets expressly, Article 221 does not do the same for the national budget, creating a loophole that was spectacularly exploited by the National Treasury, the National Assembly and the Executive in 2019, to delay release of county monies for several months.
When the National Assembly failed to pass the Division of Revenue Bill in 2019, they, however, approved the National Governments Appropriation Act, which meant that the national government, independent commissions and institutions could spend while counties could not. The Supreme Court ruled that such acts are in fact unconstitutional.
Devolution also has suffered from reluctant execution, as well as narrow interpretation of the Constitution, by mainly the technocratic class, or to use the flavour of the moment, the "deep state".
This lack of will has a rather current example. At the end of the 2019/20 financial year on June 30, 2020, the National Treasury had still not disbursed around Sh30 billion to the counties. Senior Treasury officials argued that they needed a law to be passed to enable them to disburse the funds, while in fact no such thing was necessary!
National bureaucracy
Another area where the national bureaucracy has simply refused to live up to the spirit of the constitution is the role of regional development authorities and the road agencies Kenya Rural Roads Authority and Kenya Urban Roads Authority. Both agencies deal with county roads, yet this is a county function. The same case applies to regional development authorities. That is why you will find national water agencies drilling neighbourhood boreholes and water pans!
As we progress towards full implementation of the Constitution, we must avoid the impasses and negative attitudes towards devolution in two ways.
First, the devolution family will have to do better in selling the benefits and outcomes of devolution. Second, a firmer political stance is necessary as a counter-weight to the powerful central executive and national bureaucracy, which is intent of rolling back devolution.
