Devolution system's good, bad and ugly 12 years later

On an overcast morning in late August 2010, President Mwai Kibaki hoisted a copy of the newly promulgated Kenyan Constitution, a document that bore the aspirations of a nation yearning to finally enjoy the fruits of the struggle of its forebearers.

Its pages bore provisions that would qualify Kenya’s supreme law to be among the world’s most progressive. It guaranteed rights and freedoms that few African governments would want in the hands of their citizens. The Constitution released independent institutions from the Executive’s chokehold.

Equally important, it ushered in a governance structure that would decentralise power from the presidency and bring public services closer home. Nearly 50 years since Kenya had attained independence, significant portions of the population remained marginalised, with many touting devolution as the first step towards readmitting the neglected areas back to a country that did not care they existed.

In many of such areas, new stretches of tarmac have been constructed. Hospitals and markets are coming up, too.

“Resources have been channelled to the grassroots, reaching marginalised communities and remote parts of the country which in the past depended on the whims of the central government for development,” noted Nairobi Senator Edwin Sifuna, a defender of devolution.

These are among the gains governors and stakeholders in devolution, this week congregating in Homa Bay County, will reflect on, as they assess the hits and misses of decentralisation.

The script for this year’s devolution conference is almost certainly known – while county governments have realised significant strides, a lot remains pending.

It has been a bumpy 12-year ride for counties, which have collectively gobbled up more than Sh4 trillion in equitable share since they came into existence in March 2013. These funds have hardly reached them on time, resulting in perennial threats to the shutdown of county governments.

County governments perform 14 main functions, which span agriculture, health, trade, county planning and development, transport, and public works and services, among other roles. For these functions, the Constitution demands that county governments get 15 per cent of all revenue collected by the national government. 

Many see this amount as too little to make a meaningful impact. Some, such as former Prime Minister Raila Odinga, propose the county share be revised upwards to 35 per cent.

“Counties and the Senate have been left to fight for leftovers. Anything above 15 per cent is treated as an act of magnanimity – a sorry state of affairs,” said Makueni Governor Mutula Kilonzo Jr.

Machakos Deputy Governor Francis Mwangangi argued the formula for calculating the 15 per cent designated for counties was unfair. “Counties get 15 per cent of the last audited accounts of revenue received, not what the national government has collected. When you do the math, you realise counties get a lower percentage of the revenue collected,” he said.

Work boycotts

Health has stood out for the devastating effects of workers’ strikes on the lives of Kenyans. Besides the paralysing work boycotts, there is also the issue of underequipped facilities, some of which lack the most basic tools and medicine.

It has always gone back to delays in releasing cash or an alleged underfunding of counties, or both. Governors have never had their way whenever negotiating for more revenue. In the current financial year, they had wanted more than Sh460 billion, but only managed Sh405 billion as their equitable share.

Sifuna sees this as an attempt to curtail devolution, which he said has been worked under President William Ruto’s administration that he terms “a major enemy of devolution.”

“Aside from failure to set the revenue share at Sh465 billion as proposed by the Senate, the government continues to dither when it comes to enhancing the revenue share,” said Sifuna. “Besides this, delayed remittances to counties continues to hamper the functions of devolved units. The regime has therefore fashioned itself out as an anti-devolution agent.”

Mwangangi said the national government had refused to fully devolve county functions.

Joshua Nyamori, a lawyer and political commentator affiliated with Ruto, argued that the President had facilitated counties.

“President William Ruto’s government has done more to release functions and resources to the county governments than Uhuru’s. In the last financial year, the government released the entire amount appropriated for county governments,” he said.

There is little doubt that devolution has secured significant milestones. Sifuna, for instance, points to the ease in tailoring services to align with priorities at the grassroots and greater civic awareness, thanks to having elected leaders at the basic ward representative level.

“This has given rise to a more enlightened voter, with greater demand for accountability and integrity in our democracy,” he said.

But there is a case that Kenya’s current devolution, which mirrors the regional set-up that existed in the early years of independence, has struggled in some aspects.

County governments have, arguably, failed to entrench development, spending most of their budgets on recurrent expenditure. The Controller of Budget, Margaret Nyakang’o, has flagged this in successive budget implementation reports.

When they passed the revenue allocation bill on Wednesday, MPs lamented that governors had little to show for the more than Sh4 trillion counties have controlled in the last 10 years.

In the previous financial year, counties allocated 37 per cent of their revenue to development, exceeding the 30 per cent target set by the Public Finance Management Act.

Mwangangi, who acknowledged that there were challenges in that sector, pointed out the delays as well as the ballooning workforce in different counties.

“Many counties were merged with local authorities and municipalities and absorbed their employees, many of whom were not needed in the current structure. While this affects our wage bill, we have to respect labour laws and cannot push them out,” said Mwangangi.

Counties also struggle to raise sufficient own-source revenue, with the Machakos deputy governor arguing that it was unlikely that they would meet their full potential as “imposing more taxes would worsen the situation for the overburdened taxpayer.”

“If we match what Kenya Kwanza is taxing, we would collapse the national economy,” he said.

During the first nine months of the last financial year, counties raised Sh45.9 billion in own-source revenue, 53 per cent of their Sh87 billion target.

Politically, devolution aimed to decentralise some of the national executive’s power, effectively making the presidency less attractive, as much as it was meant to bring public services closer to the people. Among those tasked with defending devolution, there is an apparent consensus that it has succeeded on this front.

“Devolution is the new self-rule,” said Kilonzo Jr, who described it as making a “world of a difference.” But even he is quick to note that county bosses are not entirely unshackled from the President.

“Devolution has suffered setbacks due to the usual pessimism by those who control power,” said Kilonzo Jr.

Immense powers

In June, Siaya Governor James Orengo, previously critical of Ruto, led a delegation of his county’s politicians to the State House, a move that has often resulted in pledges for investment. In many ways, the President still retains immense powers, dishing out favours to county bosses who are in his good books.

Even worse, the system introduced a ‘mini-president’ role, the county governorship, which has devolved the cutthroat competition witnessed in the presidential race to the counties.

The ruthless competition also features among counties, which have often disagreed on how much each one should get. At the Senate, the County Allocation of Revenue Bill has perennially attracted sharp divisions.

This owes to the different revenue-sharing formulas occasionally proposed. While some senators back a formula that relies solely on population, others want a formula that assesses factors like marginalisation.

Other bad habits, such as corruption, have cascaded to the county level, as argued by Sifuna.

“Corruption, bad governance, tribalism, nepotism and lethargy are rife in devolved units, where managers of counties get wealthy overnight,” said the ODM secretary general.

Indeed, several governors have been arrested and charged with corruption-related offences. In February, former Kiambu Governor Ferdinand Waititu was jailed for 12 years over a plot to defraud the county government of some Sh588 million.

“Our county governments have become centres for a new elite that steal public funds,” said Nyamori.