By Ndung’u Wainaina
My take on calls for Constitution Devolution Referendum
The Council of Governors and Political Opposition, Coalition for Reforms and Democracy (CORD) has each called for Constitution Referendum to address pertinent issues affecting devolved system of governance. It is not my business to go into merit of each of the issue they want addressed rather I would offer first line of solution. Calling for Referendum does not necessary mean changing the Constitution. The key outcome could be asserting and reaffirming the Constitutional principles, values and normative framework. It is question on how you frame the referendum question.
The central stake of the devolved system of governance is delivery and accessibility of quality public services at lowest level of the society. Constitution devolved system of governance created self-rule and shared rule paradigm of governance in Kenya. The country constitutionally established County as the point of reference in matters of devolved political, fiscal and administrative authority.
The first step in making the devolved system of governance work is developing the capacity required for the effective exercise of powers and performance of functions. It is more about ensuring that Counties are properly capacitated to give full effect to their constitutional mandate.
The role of County governments can be outlined as follows. First, there have strategic role to develop a vision and a framework for integrated economic, social and community development. Secondly, they are drivers of holistic development ensuring that county planning and budgetary processes give priority to the basic needs of the community and promote social and economic development fairly. Thirdly, play intergovernmental role through establishing forums, processes and institutions for purpose of delivery, participatory decision-making and accountability.
Fourth, they are given regulatory role through legislative and executive authority to enforce effective performance of their institutions’ functions. Fifth, they play an institutional development and capacity building role. Sixth, they have fiscal and development priority setting role. Seventh, they carry out monitoring role in order to ensure high standards of public service and good government. Finally, they are given intervention powers in the affairs of local governance to protect and promote minimum standards of local governance service delivery and ensure that county government fulfils its constitutional mandate
The real problem confronting the County Governments are political not constitutional deficit. There are hasty judgments being made that county governments are corrupt and are failing to meet their obligations. It must be acknowledged that problems with capacity, resources and service delivery are not limited to county governments. In fact, inefficiency, poor accounting and lack of transparency have characterized many national departments for decades.
Before arriving at final decision of amending Constitution, it is appropriate to conduct an intensive policy review of the devolved governance with Constitution as the point of departure. It is worth noting that there are many examples where county governments have been able to address effectively the needs of their people. The policy review should also be directed at those successes and the reasons for them to build on positive experiences.
The comprehensive policy review panel would take a wide approach to the analysis of the county governments by not restricting its investigation to constitutional and legislative concerns. Attention should be paid to the identification of practical solutions to service delivery and also to success stories from which lessons can be learned to find solutions to the following questions: How can the capacity of the county governments be enhanced to ensure delivery at this level of government? Are the county governments strong and competent to supervise and control local governance? How can the duplication of functions and responsibilities be improved? How can the system be made efficient and cost effective? After this policy review, correct decisions will be arrived at.
The Constitution of Kenya 2010 must be allowed to grow. It must be interpreted by the courts progressively. New political practices, norms and culture must be developed to ensure it functions properly. Creative policies and procedures must be implemented to ensure it functions optimally.
There are mechanisms in the Constitution that can be used to improve the functioning of county governments. Institutions created by the Constitution can assist to better equitable sharing of resources between national and county and between counties. There exist legal mechanisms putting obligation on the national government to provide resources to county governments to enable them discharge their duties.
If the constitutional duty to support county governments were used more effectively, many of the concerns regarding the functioning of county governments would be addressed. It is only as a very last resort that large-scale amendments to the Constitution should be considered. It is especially in young democracies, such as Kenya, constitution must be treated with the utmost respect. It must be seen as the foundation document upon which the nation is based. Moreover, change to it, if any, must be kept to a minimum and only when absolutely necessary.
Many mechanisms in Constitution remain underutilized. It does not make sense to amend the Constitution before all reasonable efforts are made to improve the way in which it operates in its present form. Any large-scale amendment will bring with it new challenges. It is therefore preferred to refine the constitutional allocation of powers and functions within the framework of the current Constitution, to improve intergovernmental relations, expand support that is available to county governments, and expand the ability and capacity of county governments to fulfill their constitutional mandate.
If Constitution is implemented and administered properly things can drastically improve. This would require a better understanding of the provisions of the Constitution, extensive training programmes, refinement of intergovernmental processes, and improved communication and coordination between government departments within the respective spheres of government.The county need honest and transparent political negotiations for devolution to succeed. Many of the serious service delivery problems are not attributable to the constitutional and legislative arrangements but rather to poor understanding of the Constitution, lack of training and coordination, and inadequate sharing of resources