Even without the unfortunate handling of the Division of Revenue Bill by the National Assembly and the confusion over the transfer of functions and funds to the counties, the demands for constitutional amendment to enhance the powers of devolved units was inevitable. In Kenya’s tortuous constitutional making history, one of the most contentious issues has been the number, boundaries and functions of devolved units and the powers of the institutions that support devolution, especially the Senate. This was true whether in boisterous Bomas or in the bare knuckled political bargaining process that defined Naivasha. Watchers of the Naivasha proceedings will recall that of the two weeks spent at Naivasha, Parliament allocated Devolution and Representation chapters one and a half weeks whilst the rest of the constitution shared the balance of three days. Those seeking to review the Constitution to either enhance the powers of the Senate or increase the powers and funding to the Counties would be well advised to read the Bomas and Naivasha proceedings. They will discover that the arguments being made now were vigorously canvassed. On the question of the minimum amounts to be guaranteed for the counties, there was a strong push to provide a minimum 30 per cent funding. Opponents of this sum felt that the minimum guaranteed sum should be restricted to only that sum that would enable the Counties to function administratively; every other funding being allocated on the basis of the cost of functions that the Counties would be performing. The compromise was a 15 per cent minimum funding, balanced by an oft-ignored provision in the constitution that requires that all functions that are transferred to a level of government must be accompanied by sufficient funding. My unsolicited advise to the County Governors would be; vigorously lobby for the unbundling and assignment of functions in a manner that transfers the core service delivery components of Schedule 5 functions to the Counties and ensure that the process of assessing the cost of functions is fair. That process would guarantee way more than the 40 per cent funding being proposed. Going down the road of constitutional amendment is risky. One, the minute we open up the opportunity of amending the constitution to â €œimproveâ€� it, the possibility that we will also introduce regressive amendments is very real. You have enough constitutional skeptics currently to guarantee regression. Two, the country cannot afford another season of politicking, in financial terms and the accompanying negative energy. Three, in true Kenyan fashion, the issue will quickly degenerate into political competition, sacrificing the key issues being debated on the political altar. As for the Senate, had it not been for the resoluteness of the Committee of Experts, Parliament had completely neutered the institution. The poetic justice is that some of those who weakened the Senate in Naivasha in 2010 are now members of that House, loudly crying out for its empowerment. What is unstated in this discourse on the Senate’s powers and what Kenyans must recognize is that the constitution of Kenya 2010 whilst containing extensive checks and balances and protections for minorities and the marginalized is unashamedly majoritarian. That is why the President is elected on the basis of universal suffrage and the National Assembly, which comprises of units with fairly equal populations, is the more powerful house. Any significant increase of the powers of the Senate may therefore call for a renegotiation of the population equity between counties, thus “redressingâ€� the situation today where Lamu and Nairobi with a population of about 100,000 and 3,000,000 respectively have a Senator each. My unsolicited advice to the Senate would be; it’s okay to seek court interpretation on the respective powers of the Senate and the Assembly when all options fail. As matters stand, it is more useful to seek political solutions to the impasse between the two houses so that the Senate is able to exercise its still considerable powers in the Constitution. I have always wondered how the Jubilee coalition, with a majority in both houses cannot accomplish this task.
Posted on: Sat, 03 Aug 2013 19:52:13 +0000
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