It is depressing to see senators unaware of what the constitution says, or, more likely, not caring

A Senate committee has come up with a proposal to change the law to deal with a perceived tendency of counties to appoint to their public services too many people from their main ethnic group. This is to set up an agency to recruit staff for counties (a sort of national Public Service Commission (PSC) for counties). The people recruited by this agency could also be transferred to other counties.

Under the County Governments Act (CGA) the county public service board must consider “the need to ensure that at least thirty per cent of the vacant posts at entry level are filled by candidates who are not from the dominant ethnic community in the county”  (section 65).

The Senate committee’s report, says that 33 counties violate the 70 per cent rule, and that most of the compliant ones are either urban areas or have no very clearly dominant community.

So what’s wrong with the proposal?

The Constitution

The Constitution has a completely different concept. From Article 235 it is clear that each county has “its public service”; it creates the posts in that service, it appoints people to hold those posts and it disciplines them, and – when necessary and according to the law –  dismisses them.

The only role of the national level of government is to set “norms and standards” in an Act of Parliament. The constitution itself gives some guidance, in the form of values and principles in Article 10 and – specifically for the public services – Article 232. Section 65 of the CGA sets a norm – oddly phrased: not county public service boards must “ensure” the 70 per cent rule but the weaker “must consider the need” to ensure it.

Most relevant in Article 232 are “representation of Kenya’s diverse communities” and “affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of–– … the members of all ethnic groups…”.  This specifically applies to county as well as national public services. However, presumably the intention was that county public services should reflect the face of the county rather than of the nation.

Article 56 also says that there must be affirmative action programmes to ensure that minorities and marginalised group “are provided special opportunities for access to employment”

Is the 70 per cent “rule” fair?

The constitution does not specify 70 per cent, so the next question must be: is the CGA fair (and constitutional)? It seems that, in passing the Act, Parliament did not set out to ensure that the public service at county level reflected the face of the county, but chose a rule of thumb that is easier to apply and remains fixed, while the make-up of a county may change over time. A rigid rule will always fail to be fair to everyone.

But how far does the 70 per cent rule actually reflect the situation of ethnic groups in counties? Interestingly the 2019 Census did not indicate population by ethnicity at county level.  But here are a couple of examples.

In Kisumu – according to its 2024 statistical abstract – the Luo community constitutes about 90 per cent of the population. That report itself indicates that 83.8 per cent of county staff were Luo.

In Makueni the Akamba are about 97 per cent of the total population.  According to the Senate committee report 92.63 per cent of Makueni county staff are Akamba.

Counties in this sort of situation might claim that they satisfy the constitutional concept. We cannot expect agencies with strong local connections to have staffing make-up that is not reasonably close to the local ethnic distribution.

To ensure fair representation of minorities – and to allow for changes in demographics – it would be wise not to go up to the limit with dominant group appointments. But a difference between the CGA 70 per cent and the reality on the ground (if accurate) of about 90 per cent is large. Devolution was designed to bring decision making closer to the affected people. People in a county who belong to a 90 per cent plus majority might not unreasonably feel aggrieved if only 70 per cent of county jobs are open to them. A fixed rule of any sort is arguably not the best approach.

Other problems with the Senate ‘solution’

Firstly, we have the Senate thinking that counties are not carrying out this recruitment function properly – so let’s take it away from them.  Apparently this approach would apply to all counties including those that have managed to meet the CGA standard. That hardly seems fair.

Secondly, the idea that county staff should be able to be transferred has nothing to do with the ethnicity question and would be a further reduction of county powers.

Thirdly, devolution is still relatively new, and many errors are made at the national and county levels. I suggest that taking away a function is not the best way of teaching or encouraging a body to exercise it properly.

Alternative approaches

Article 190 requires that law should provide for the national government to take over a function that a county is unable to perform satisfactorily, but only temporarily. (This is done by section 121 of the CGA.) And the Senate (as protector of county government) could stop this at any time. The emphasis is on making sure that counties are able – and if necessary, pushed – to carry out their functions in accordance with the constitution.

Maybe – as part of the project of assisting counties – the law could provide that, temporarily, appointments in a county (or some of them) might be required to be approved by the PSC. The county would advertise, interview and decide, but that decision would not become valid, at least for a while, unless ratified by the PSC.

Even without using Article 190, agencies such as the PSC and NCIC could assist county governments in the development of their recruitment processes. The Senate committee report does propose that the Senate should work with counties on this issue. It would no doubt help if counties were not required to appoint a disproportionate number of people from outside their dominant community.

A set of guidelines for affirmative action in recruitment by counties could be developed.

The function of a county government is to serve the people of that county. And the people of the county should try to monitor what their government is doing.

For a member of a small minority in a county it is not easy to object effectively if their community is essentially ignored in recruitment. But there are things than can be done: access to information requests to know what the situation is, and complaints to the National Gender and Equality Commission once they have the information, for example

Wider issues

It is depressing to see senators unaware of what the constitution says, or, more likely, not caring. Too often government, including lawmakers, do not seem to understand the constitution.

The infamous parliamentary select committee that mutilated the constitution draft in 2010 introduced the idea of Senate overseeing national revenue allocated to counties (extended by the Supreme Court to all revenue).  This weakened county government and the role of county assemblies. And it introduced some tension between Senate and the very system they were supposed to support.

Further, counties are constantly being blamed for things that are common at national government level, like corruption – or, here, for ethnicity in appointments.

Finally, lying behind this proposal seems to be something sadly common at the national level: not accepting that county governments are just that – governments. Counties are not the old local authorities that were under the national thumb. It is particularly depressing to see senators nibbling away at devolution, which it is their function to protect and foster.

This article was first published by The Star Newspaper

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