KIRIMA: Rethinking devolution: Kenya’s counties debate

Dr. Mukhisa Kituyi has reignited the conversation around the cost of devolution.

Recently, he delivered a stark assessment of the current governance structure, opining: “Kenya cannot afford 47 counties. If we were to do a new constitution, devolution should have ten counties.”

A distinguished veteran of Kenya’s Second Liberation politics and a seasoned technocrat, he has long maintained that Kenya’s devolved units should align with the former eight provinces—a position he held even during the constitutional reform process.

To underpin his views, he identifies three main demerits that make 47 counties too many and economically inefficient: duplication of county roles with national ones; leakage of resources; and graft. While these concerns are unquestionably well founded, proposals to reduce the counties to ten would be draconian. A brief understanding of the rationale behind the current framework is indispensable in charting a way forward.

Article 174 of the Constitution of Kenya enshrines nine objectives of devolution. The overarching purpose can be summarised as the establishment of a system that seeks to correct historical marginalisation of communities by underpinning self-governance of subnational units.

Consequently, the post-2010 dispensation centres the right of administrative regions to take the driver’s seat in implementing their own development agenda. The spirit and letter of that constitutional provision ought to be considered within the backdrop of Kenya as a post-colonial state—that is, a pluri-national, multi-ethnic, and multicultural entity whose experience with a centralised form of government only yielded exclusion and inefficiency. To understand devolution struggles, one has to appreciate this historical background.

The rise of the modern nation-state was defined by late 19th-century Europe, most notably through the formal unifications of Germany and Italy. Coincidentally, this was around the time European powers were contemplating the scramble and partition of Africa.

With the eventual colonisation of the continent, European powers replicated the nation-state model by grouping distinct African communities into single administrative entities. Societies that had existed for eons with their own culture, traditions, and systems of governance suddenly found themselves consolidated together.

Even post-independence, the international law concept of uti possidetis enjoined newly independent states to maintain colonial borders and a fixed national identity. That is how Kenya, a nation-state of around 42 communities, currently exists, notwithstanding a turbulent past of ethnic clashes, marginalisation, and persistent claims of exclusion.

Cognisant of the foregoing, if there were to be any downscaling of devolved units as currently constituted, there should not be fewer than twenty. The applicable approach would be to consider, as closely as possible, the socio-cultural composition of regions. For instance, amalgamating counties like Nyamira and Kisii into one Abagusii region would be one possible configuration. Cosmopolitan units or those that do not fit into a single identity, like Nairobi, Nakuru, and Mombasa, among others, would remain as currently constituted.

The rationale would be to ensure that communities with shared identity and culture maintain some level of autonomy. After all, it has been demonstrated that the purpose of devolution was not primarily to promote economic efficiency in governance as posited by Dr. Kituyi. Far from it; it was to balance the socio-political realities of a fragile plurinational state.

Be that as it may, the demerits mentioned by Dr. Kituyi are not to be trivialised. There is no doubt that Kenyans have seen the impact of corruption more up close through devolution. Gone are the days when citizens would only hear reports of high-ranking national officials stashing looted money in offshore tax havens.

Today, they can see mansions deep in their villages, perhaps linked in public perception to misuse of county resources. Kenyans at the lowest level can now directly perceive what leakage of resources looks like. Previously, not many could. Reconsolidating devolved units as espoused by Dr. Kituyi will not necessarily solve corruption or leakage of resources. It may only recentralise it.

As it stands, only about 10% of the annual national budget goes to counties. Dr Kituyi arguably overstated the cost of running counties. It may very well be that revenues lost through corruption at the national government level could significantly fund the counties as currently constituted. As such, reducing the number of counties merely because of governance challenges that are also present at the national level would be akin to throwing the baby out with the bath water.

Contrary to Dr. Kituyi’s proposals, the 47 counties should be left untouched. Nonetheless, were any alteration to be effected, it must preserve Kenya’s plurinational reality at all costs—even if the price is economic efficiency.

 Victor Kirima, Advocate of the High Court of Kenya, Governance & International Law expert) [email protected]