Archive | November, 2014


14 Nov

By Peter O. M. Wanyama

One of the defining characteristic of Kenya’s post-independence constitutional and legal order from 1963-2010 was the consolidation or centralization of sovereign power in the central government. As a result, the governments that were in power during this period presided over governance pattern allowed official marginalization and skewed distribution of national resources. This dominantly contributed to the clamor for a new Constitution and largely influenced the contents content of the Bomas, Kilifi, the Wako and the Naivasha Drafts of the Constitution provided some form of devolution.

The Constitution of Kenya 2010, whose contents were influenced by these earlier drafts, came into force on the 27th October 2010 upon its promulgation before Kenyans. Its implementation began in earnest in March, 2013, immediately after the elections that ushered in a new national executive, legislature and the county governments.

Many Kenyans pinned their hopes on devolution to realise the dreams that were over the decades frustrated by skewed appropriation of resources to the centre. Owing to this expectation that devolution would provide a remedy for the economic injustice over the years, the county governments are under pressure to deliver on these expectations. This delivery would not be possible without the necessary fiscal support that is required form the national government.

Devolution was meant to achieve the following objectives:
(a) To ensure the democratic and accountable exercise of sovereign power;
(b) To foster national unity by recognising diversity;
(c) To give powers of self-governance to the people at all levels and 0enhance the participation of people in the exercise of the powers of the state;
(d) To recognize the right of local communities to manage their own local affairs, and to form networks and associations to assist in that management and to further their development;
(e) To protect and promote the interests and rights of minorities and marginalized groups at all levels;
(f) To promote social and economic development and the provision of proximate, easily-accessed services throughout Kenya; and
(g) To ensure equitable sharing of national and local resources throughout Kenya, with special provisions for less developed areas.

However, the critical challenges lie in the implementation of the devolution. The implementation of the developed governance structure alone requires intense executive leadership and unbridled commitment on the relevant state organs. Despite, that the Constitution establishes the nation-state of Kenya on a platform of devolution, ethical conduct, integrity, transparency and accountability, its implementation is being defeated. The following examples aptly illustrate these points:

The National Government is constitutional responsible for the development of policy in an environment of consultation and cooperation. At the moment there are 200 national government policy documents that require review to conform to the Constitution and devolution. National government has not reviewed these polices, which it continues to implement. As a result, national government ministries and functionaries continue to preside over a government structure that encourages arbitrary decision making and unaccountable bureaucracies.

It also lays basis for abuse of executive power and centralization of decision making contrary to the promises in the Constitution. For example, the Rural Electrification Programme, the Constituency Development Fund, the Road Maintenance Levy Fund, and other numerous national government programmes continue to be implemented in total disregard of the Constitution and the existence of county governments. Moreover, parastatals such as the Kenya Rural Roads Authority, Kenya Urban Roads Authority, and Regional Development Authorities continue to be funded to undertake county government functions in total disregard to the Constitution.

It is on this basis that the Council of Governors calls for Transition Authority, the Commission on the Implementation of the Constitution, the Kenya Law Reform Commission, Parliament, National Government ministries, the Attorney General and other key state organs, to play their rightful role in ensuring the existing policy, legal order and institutional framework of Government accords to the principles of devolution. Specifically, the Attorney General, who is principal legal advisor to government, should strive to nurture and imprint the culture of constitutionalism and devolution in all government actions, decisions and policies. To effectively imprint the culture of Constitutionalism at all levels in government, a fundamental clean-up of the entire legal order, policy framework and operational principles is required. This is a task that falls squarely on the office of the Attorney General.

When Kenyans voted for new constitution to remove fused executive and parliament, they wanted new paradigm of checks and balances, raised bar on the transparency and accountability in executive and parliament performance of the respective functions, and set significant standards which every arm of the state should adhere to while conducting its affairs. However, the politically self-driven laws being generated by Parliament raise serious question on the competence of Parliament to ensure high standard in the quality of legislation as a constitutional duty. There seems to be no code of legislative standards set for good quality legislation agreed between Parliament and the Executive. In addition, Parliament has no mechanism of ensuring quality control to oversee application and effectiveness of the code of legislative standards as well as perform pre-legislative scrutiny.

Clearly, there is little consultation and scrutiny engagement of expertise deployed from policy to legislative process. Consequently, Parliament keeps generating defective and or deficient laws as well as carrying out shallow oversight. Parliament is pretty good on observation but very poor in substantive, proactive and active examination of its legislative and oversight work. Governors are concerned these about laws. Most laws being drafted such as the Agricultural laws, Mining Bill, Water Bill, Energy Bill, Forestry Bill, Roads Bill, Potato Bill, and many others all undermine County Governments.

Other sources of laws that undermine devolution emanate from subsidiary legislation that Cabinet Secretaries promulgate. Statutory grants of rule-making authority to the executive branch in Kenya often leave Cabinet Secretaries with considerable latitude in applying legislation to individual cases. Following long-established practice, neither the Constitution nor statutes require transparency or public consultation in the making of executive regulations.

In a legal regime where most laws come in the form of delegated legislation or executive rule making, the continued absence of meaningful parliamentary, popular, or judicial oversight of sub-legislative rule making effectively enthrones the executive as the real source of the laws governing society’s routine social and economic activity. To guarantee the effectiveness of the constitutional and legal order, the Attorney General shall be required to advise and create a defined framework that as much as possible curtails the unfettered discretion of the Executive. Besides, the provisions of the Statutory Instruments Act must be fully implemented. At the moment there are over 50 regulations that require review. They provide good fodder to undermine functions of counties.

Devolution is a system under which certain governmental powers are exercised by the counties, not by the national government. In this way devolution is an integral part of Kenya’s constitutional system. Fundamentally, the success of devolution will require huge resources, public awareness, capacity building initiatives and highly committed personnel, institutions and organizations, founded on the national values as enshrined in the Constitution.

The question of adequate funding to County Governments has been discussed in forums for intergovernmental relations such as the Intergovernmental Budget and Economic Forum and the Summit. Despite, agreement with key stakeholders such at the Commission for Revenue Allocation and the Senate, Treasury and National Assembly have incessantly pushed for a reduction of the equitable share to County Governments. For example, in the 2014/2015 financial year, the figure was cut from Kshs. 270 Billion to Kshs. 226 Billion. Kshs. 226 Billion is nearly is 12.5 % of the national revenue which stands at as staggering Kshs. 1 Trillion.

The Council undertook a cursory review of the 2013/2014 financial budget and discovered that the national government had allocated over Kshs. 120 Billion on budgetary items that are fully devolved. This forms the basis of the increased push for more allocation to Counties. Besides, the national government has not shown any hurry to complete the audit of its accounts. The allocation to counties in the 2014/2015 financial year is based on the approved accounts of 2010/2011 budget. Administrative delays in the approval of the budget aids the national government in underfunding counties.

County Governments are also worried about the unchecked borrowing by the national government. In the last financial year the national government collected taxes in the sum of Kshs. 1.2 trillion. Out of this amount, it proposes to use Kshs. 400 billion to pay loans and interest thereof and another Kshs. 500 Billion ostensibly for ‘strategic national interests.’ It is not clear what these strategic national interests are. The effect is that the equitable share to Counties is significantly reduced. There is urgent need to restructure national government borrowing and to develop an equitable revenue sharing formula that is based on costed-functions.

This article was written by Peter O.M. Wanyama.
The Author of this article, Peter Manyonge Wanyama of Manyonge Wanyama & Associates Advocates, is a corporate lawyer based in Nairobi, Kenya. He has extensive experience in corporate/commercial law and law reform. Peter has initiated key areas of legal practice in Kenya such as legal audit and risk-based legal practice.


10 Nov

By Javas Bigambo

It is not easy to mourn Dr. Myles Munroe. The uniquely gifted preacher and motivational speaker sculpted careers, shaped minds and inspired souls through his soaring oratory and disarming wit. Now the world says goodbye to a man of talent.

Dr. Myles Munroe together with his wife Ruth and 7 others dies in a tragic plane crash in the Bahamas.

Dr. Myles Munroe together with his wife Ruth and 7 others died in a tragic plane crash in the Bahamas.

From my desk here in Nairobi Kenya, I have no fitting superlative encomiums to pen a fitting eulogy in honour of that distinguished international leader, whose time on earth has fled on gossamer wings, poignantly robbing the earth of a consummate businessman, celebrated author and a bright lamp upon a hill.

From the small elegant Bahamas the world has benefited the most. Today, the Bahamas is clouded by the low-hanging clouds of grief. Myles, Ruth and the other seven souls in the plane crash – rest in peace.

The Bahamas is a beautiful Common Wealth nation.

The Bahamas is a beautiful Common Wealth nation.