There are few observers as astute as sharp journalists to analyse complex politics.  Yash Ghai was fortunate to be the guest of the Kenya Correspondents Association this week at the launch of a, compact and useful, book they have produced on devolution.

The 42-page book is intended to be the guide for journalists, helping them to understand the issues they will have to report on. But in practice, it will be of considerable value to all those who are interested in devolution — among which are state institutions concerned with the development of the Constitution, and to members of the public, whom devolution is supposed to benefit, and who may wish to make their own assessments of how it is working.

Listening to the interesting, indeed passionate, discussions of the role of journalists, Yash realised how so many of us overlook the importance of journalists — and media in general — in the development of our perceptions of the state and society, and politics in particular.  The association is playing a key role in sensitising its members to economic and social realities — and their responsibilities. Reading this book, which he was honoured to launch, he realised how seriously its leaders take their professional responsibilities — and how critical that is to our understanding of our state and society.

The association’s book is of considerable value to the understanding of devolution as it has developed. As co-editor of a major, comparative, book on devolution in South Africa and Kenya, Yash  can vouch for the professionalism of the association’s study (guided by Gichira Kibara).

The type of devolution we have is quite different from what the Constitution of Kenya Review Commission and Bomas had proposed: much weaker, more ethnically biased, and more beholden to the centre.

BOMAS DRAFT

The Bomas draft constitution, in 2004, would have had a rather different system, as Raila Odinga has recently reminded us. It proposed a four – tier system. Below the national government would have been 14 regions with their own governments (one was Nairobi in a rather special position). Below them would have been the districts (74 of them, though those in Nairobi would be called boroughs). Below them would have been locations – with their elected councils. The districts would have had less power to make laws, and would have been more concerned with administering laws made by other levels. A good deal of detail was left to be worked out, but it is reasonable to assume that 14 regions would have been more powerful in relation to the national government than our counties now. And the districts and their governments would almost certainly have been less puffed-up and self-important, and perhaps less extravagant.

In a curious way, however, it is harder for the centre to deal with 47 small entities dependent on the centre than dealing with about 14 entities with considerably greater resources and power would have been.

IDENTIFYING PROBLEMS

The KCA was mostly concerned to help journalists to understand the system, and to evaluate it for themselves and their readers and listeners.

But to show the sorts of issues that may arise, and merit reporting and analysis, the book identifies a number of controversies that have risen, which readers themselves will probably have noticed hitting the headlines. They characterise these as “supremacy wars”. For example, the Senate (responsible for protecting the interests of the county system) and the National Assembly have been at loggerheads (to the extent of going to court) over how far the Senate is supposed to be involved in lawmaking. The Nation described this as the National Assembly’s “never ending war with the Senate”.

The Council of Governors has objected that the Senate should not be summoning its members to respond to questions about county finances. County Assemblies have tried to impeach and remove governors.

And there are complaints from counties that the national government has dragged its feet in facilitating counties, fully taking over some functions assigned to them under the Constitution. And they accuse the national government of trespassing on devolved functions by passing laws that should be done by counties, or creating bodies to do things that counties ought to do, including parastatals.

WHERE DOES THE FAULT LIE?

The KCA does not try to assign blame. But some fingers can be pointed.

Occasionally, the Constitution is less clear that it could be. We saw that with the assignment to counties of “County health services, including, in particular county health facilities”. What does this mean: Services in the county, for the county or belonging to the county? The responsibility for the Level 5 (formerly provincial) hospitals had to be decided by the courts. And many are not satisfied with the outcome.

The Constitution’s provisions about the Senate exercising “oversight over national revenue allocated to the county governments” is also problematic. It came into the constitution making process in the parliamentary select committee’s hacking at the draft in Naivasha that year. (The same meeting as gave us the presidential system.) It seems designed to weaken devolution. Maybe it was some compensation for trying to demote the Senate to the “lower house”! The problem is that it seems to give to the Senate a function properly belonging to the county assemblies.

But does it mean only “oversight over how, and how much is allocated to the counties” or “how the money allocated is spent by the counties”? The courts have decided it means the latter, but the High Court added, “We therefore urge both the Senate and County Governments through the Governors, to foster dialogue and co-operate in the interest of the counties they represent and swore to protect while taking their oath of office. ….”

The courts gave short shrift also to the scheme to give Senators a hand in planning county policies when it held unconstitutional an amendment to the County Governments Act, which created the County Development Board. The High Court said that amendment was “patently antithetical to the spirit of devolution, the principles of separation of powers and good governance, as well as the rule of law”. This cannot be laid at the door of the constitution makers.

In the case about what oversight of “national revenue allocated to the counties” means, the court said, “Superiority contests will only kill rather than promote devolution”. This, it is suggested (not by the KCA) is a clue to a major problem: that out politicians somehow think things are all about them. Their status, power and remuneration (or less legally acquired resources) seem to take precedence over other considerations like good governance, and integrity of the constitutional design.

BACK TO THE KCA

For journalists and citizens anxious to understand and either report on or try to enforce the constitution, the little book launched this week has some useful tips, apart from explaining clearly how the system is supposed to work.

It sensibly proposes more use of the Access to Information Act (so far largely, and disappointingly, neglected by the Kenyan media).

It suggests what can be considered when trying to assess how devolution is working. It proposes that it is more likely to be successful if creating capacity in county governments, sound planning, and focussing on the quality of services delivered rather than just the money spent (among other factors) are taken account of.

The book outlines the budget processes (very fully spelled out in the constitution and the law). And it suggests some approaches for journalists (equally relevant for civil society) when analysing this often puzzling area. For example, comparing allocations to different government sectors, understanding where public revenue comes from as well as where it goes, trying to understand whether spending is guided by government policy, and using reports of the Auditor General and the Controller of Budget (one might add of NGOs like the International Budget Partnership).

IMPORTANCE OF MEDIA

Only a minority of the public will personally try to evaluate devolution. We depend on the media. It is commendable that the KCA are. Under the guidance of William Janaka and his team are trying to help the profession to inform us more fully and more accurately.

The authors of this article are Directors of Katiba  Institute

YASH GHAI and JILL COTTRELL GHAI