Kenya_-_Final_USAID_Devolution_Report.docx

DEVOLUTION IN KENYA:

FINAL REPORT TO THE TRANSITION AUTHORITY AND USAID-KENYA

SEPTEMBER 2012

This publication was produced for review by the United States Agency for International Development. It was prepared by J. Tyler Dickovick.

This report has been prepared for the United States Agency for International Development. Contract: AID - 00052

Authored by: J. Tyler Dickovick Associate Professor of Politics Washington and Lee University;

DickovickT@wlu.edu

DEVOLUTION IN KENYA:

FINAL REPORT

SEPTEMBER 2012

DISCLAIMER

The author’s views expressed in this paper do not necessarily reflect the views of the United States Agency for International Development or the United States Government.

Acronyms

Executive Summary This report offers perspective on the current process of devolution in Kenya, with a particular emphasis on the role of the Transition Authority (TA). This report makes recommendations for action by Kenya’s Transition Authority (TA) during the transition to devolved government from 2012 to 2015. Like the draft report delivered on August 22, 2012, this final report is based on an analysis of several factors:

1. the existing legal framework for the TA and for devolved government in Kenya;

2. the political and social context in the country; and

3. the comparative analysis of other experiences with decentralization, particularly in Africa, but also elsewhere in the world. It is attentive in particular to ways that USAID can serve as a constructive partner to the TA and to the process of devolution in Kenya generally.

This report draws upon lessons from elsewhere in Africa, particularly in Section 3. Nonetheless, the report is thematic: The aim is not to report exclusively on other countries’ circumstances, but to focus on general conclusions that are supported by evidence from other countries. It applies general lessons about devolution to Kenya’s particular situation and governance needs. In other words, it is forward-looking, drawing upon past and present experiences in Africa for future use, not a backward-looking review of what has happened. The report also notes some best practices, but also “worst practices”, or pitfalls to avoid in the devolution process.

There are several implications of the analysis. In general, Kenya’s devolution process has many promising features, and can contribute to major goals such as stability, development, and democratic deepening, but it is not a foregone conclusion that it will do so. The recommendations in the conclusion place an emphasis on actors with whom the TA can collaborate to maximize the likelihood that devolution attains its objectives. Recommendations are ultimately brought together in three areas: building capacity of county governments (and other actors); building supportive intergovernmental relations (IGR) institutions that link to counties; and working with civil society to enhance the accountability (as well as the autonomy) of county governments.

Outline of the Report This report aims for a simple structure. The first three sections follow the factors noted at the outset. Section 1 briefly examines the structure of the Transition Authority and the legal framework that shapes its action. It evaluates the legal context, notes the challenges that arise from it, and makes recommendations on this basis. Section 2 looks at the broader devolution environment in Kenya, and similarly follows the approach of noting context, challenges, and recommendations. Section 3 examines the experiences of other countries in Africa and uses again the same format to reach recommendations. Finally, section 4 of the paper synthesizes the findings of the previous three sections to make recommendations that cut across the various themes. The main themes that emerge are developing strategies for: collaborative efforts at capacity building for county governments; support for institutions in intergovernmental relations; and the incorporation of civil society into governance in multiple ways.

1.0 The Transition Authority: Structure and Legal Framework

This section briefly outlines the structure and legal framework in which the TA operates. Its purpose is to highlight how this context affects the actions of the TA. The challenges revolve around scarcity of resources (time and money alike), and the corresponding recommendations are for coordination with other bodies so that efficiency can be maximized.

1.1 Context

The background and legal authority of the TA require little explanation: the relevant legal framework is established in the Transition to Devolved Government Act of 2012, which emphasizes the principal responsibilities of the TA: undertaking an audit of physical assets and liabilities for counties; identifying human resources for the county levels; evaluating the readiness of counties to take on devolved functions; and civic education and capacity building to support devolution. For the purposes of this brief report, this legal framework is taken as given; rather than explore its background, we turn instead to issues over which the TA can exercise control, including its own internal functioning and approach.

Internally, the Transition Authority has prepared to move ahead by establishing committees responsible for evaluation in three areas: audit of assets and liabilities; audit of human resources; and devolution of functions. This is a useful approach in terms of dividing labor for the three principal evaluation tasks. The tasks of capacity building and civic education are also needed to accompany devolution, so that government officials (at the county levels and other levels), civil society, and the citizenry at large are prepared to assume their responsibilities. This is an open-ended set of tasks, unlike the audits of assets/liabilities, human resources, and evaluations of functions. Whereas those other responsibilities will generally culminate in some kind of authoritative decision or report, the civic education and capacity building can be ongoing and indefinite.

1.2 Challenges for the TA

One clear challenge for the TA is the scarcity of resources, including for a secretariat. While the TA members bring considerable human resources to the table, there are practical constraints on the amount it can do in terms of processing information, requesting follow-up information from counties, undertaking follow-up studies, making its determinations, and providing support for capacity building and civic education. This is particularly challenging if one assumes that the new counties themselves will provide information of variable quality, and may have human resource constraints of another variety.

The resource constraint relates to a second challenge: determining the scope of the TA’s work. The TA must determine how far it should go in pursuing information about county preparedness to absorb functions, along with human resources and assets and liabilities. If financial resources and time were abundant, then the list of tasks to undertake could be fully comprehensive. Since this is not the case, the TA must develop approaches that allow it to complete its functions at a high level of achievement.

In the first draft of this report, a key question was to what extent is the TA’s task evaluative and to what extent is it investigative? The TA’s approach is now understood to rely upon a combination of initial audits and information gathering and subsequent collaboration with executive branch agencies that will follow up on TA suggestions. That is, the TA will work through and with other institutions to determine whether a county is prepared for the devolution of functions. This approach – which combines evaluation with requests for collaboration –is more feasible than full investigation from a resource perspective. But its challenge lies in reliance on the cooperation of other institutions that are beyond the control of the TA itself.

1.3 Implications and Recommendations

There are several recommendations that will allow the TA to do as much as possible with the minimum amount of resources. The recommendations involve collaborating with and supporting other actors that can assist the TA, and making the most of its legally mandated opportunities for communication. The collaborations can take various forms. First, it includes collaboration with development partners, as is envisioned in the TA’s efforts to build its “development partners’ matrix”. This should help prevent duplication of effort and render capacity building more efficient. Second, it can include collaboration with the other central government bodies mandated to provide capacity building support. And third, it involves identifying key persons at the county level that can help disseminate the TA’s efforts. This last item is especially important. For its audits and assessments, the TA will need reliable information from county governments, while it also has a capacity building responsibility to support decentralization into the future. One concrete recommendation is to identify early on the key persons who may help facilitate the spreading of knowledge. If the TA’s role is primarily evaluative (i.e., assessing the work done by counties in their requests and evaluations), then advance preparation should result in a higher degree of county compliance with what the TA requires. If the TA’s role is investigative, then early collaboration with county personnel will allow the TA to develop professional relationships with key interlocutors, which should improve both the audit process and devolution thereafter.

The last recommendations in this section center on the communication strategy. The TA can control some of the content and delivery of its communications. It may be able to communicate publicly, for instance. It can also communicate as thoroughly as feasible. In communicating decisions on whether it approves the devolution of functions with specific capacity building recommendations, the TA can make its determinations public and provide specifics for any further work that is required. Being public and offering modest detail should help hold to account other actors responsible for building capacity.

Figure 1. The Transition Authority Structure and Legal Framework: Context, Challenges, and Recommendations

2.0 The Devolution Environment in Kenya

Section 2 looks beyond issues specific to the TA’s operating framework to examine the broader devolution environment in Kenya, and the challenges it presents. It sketches out the Kenyan context for devolution and notes what challenges this presents to the TA. The recommendations in section 2.3 center on developing cooperative relations among the various institutions in the devolution framework, in order to meet these challenges.

2.1 Context

Four elements of Kenya’s devolution context are worth noting, and are highlighted briefly here. The first three represent challenges that give rise to the push for decentralization in Kenya, or challenges that Kenya’s context poses for decentralization. These are the questions of stability, governance quality, and the capacity of devolved governments. The fourth element of the context is more legalistic: it is the framework of laws in which the TA and other advocates of devolution must operate.

2.1.1. The Stability Imperative

Perhaps the most crucial element of the decentralization context is the concern about internal tension, civil strife, and divisive politics. Devolution has been in large part a response to the violence of 2007/08. This places considerable pressure on the process to “deliver”, failing which conflict could reemerge. This challenge is greatest in divided or heterogeneous counties (such as in Coast or the Rift Valley, e.g.). Neither the TA alone nor even a perfectly designed devolution process can guarantee social cohesion, but institutional design does matter. This affects the actions of the TA – and recommendations for its action – because the success of devolution (and stability in Kenya generally) depend upon balancing different interests.

2.1.2. governance challenges The second element of the devolution context is the set of governance challenges facing Kenya, including most notably a legacy of centralized government and the persistence of patronage and clientelism (to include corruption). The concern here is that devolution will not improve, but rather exacerbate, these governance problems.

2.1.3. capacity challenges The third element is the set of capacity challenges at the county level, and the uncertainty about what will be devolved. (Of course, the TA exercises some control over determinations about devolution, but this remains a relevant feature of the context in which it operates.) These capacity challenges and uncertainty will affect the decisions to be made by the TA regarding devolution of functions in particular.

2.1.4. legal framework The fourth and final contextual feature is the legal framework for other actors in devolution. This merits lengthier comment than the previous three features of Kenya’s context. A range of actors is involved in the devolution process besides the TA (whose own legal framework was noted in section 1). Relevant bodies include: the national parliament and executive, central government ministries, commissions and committees (CIC, CRA, IEBC, etc.), county governments, sub-county institutions, intergovernmental relations institutions (such as the Council of County Governors, e.g.), and civil society institutions. Perhaps as important are the institutions that do not exist in law. Examples include institutions such as sectoral forums (akin to the Intergovernmental Budget and Economic Council in the PFM Act), or mechanisms to ensure communication between MPs and the county governments their constituencies represent.

Though the structure of devolution in Kenya is familiar to USAID-Kenya/DG and the members of the TA, it is worth drawing particular attention to the potential for relatively underappreciated entry points for action. Of course, much of the activity in preparing for devolution necessarily takes place at the county level, but several other actors (that are more easily overlooked) will have important roles to play in the process after the transition is complete. To view this, the basic structure is illustrated in Figure 2 below. Figure 2 shows the various levels of representation in Kenya (except the presidency). This includes both the national parliament, with its National Assembly and Senate, and the subnational levels of government at the county level and below.

Figure 2. The Legal Framework of Devolution in Kenya Senate (68) Senators (47) elected from counties Counties (47) Elect Govs., County Assembly, 47 women to Natl. Assembly Sub-county (290) Administrators appointed by county Ward (1,175 – 1,450) Appointed by county; constituencies for County Assembly National Assembly (350) MPs (290) from constituencies Parliamentary Constituencies (290)

Three particular levels are highlighted in red in Figure 2 because they represent the levels at which citizens elect representatives: counties, parliamentary constituencies, and wards. Senators (as well as women representatives in the National Assembly) are elected at the county level, MPs in the National Assembly are elected in constituencies that are geographically identical to the sub-county level, and county assembly members will be elected at the ward level.

It is worthwhile to draw attention to these various levels because elected officials in electoral systems like Kenya’s have quite clear incentives to respond to the demands of their geographic constituency. What is noteworthy is that MPs will have incentives to address the needs of geographic units that are identical to the sub-counties, while County Assembly members will have incentives to serve the interests of their wards.

Advocacy by MPs on behalf of sub-counties and by County Assembly members on behalf of wards could be a point of real promise in Kenya’s devolution. Elected officials can that represent sub-county and ward units will likely have incentives to advocate for “further devolution” below the county level, at least in terms of resources. This is particularly salient because of another element of the devolution structure worth noting: the size of the counties. Consider Table 1 below.

Table 1. Geographic units in Kenya and Population estimates Geographic Unit

Source: World Bank, County Governments Act, author calculations The counties are relatively large, compared to other local governments in Africa. As Kenya’s population grows over the coming years, they may average nearly one million people per county. In this context, a challenge is ensuring that county government itself does not become too centralized. It is important that local government reach down into highly functioning institutions below the county level, and the sub-county and ward units will require political backing to ensure this happens. The TA will do well to recognize the promise that comes from working with elected officials that have their own political incentives to decentralize further, particularly since devolution is intended in part to address the possibility of social divisions and conflicts, as well as make governance more locally accountable for reasons of economic development and democracy. Sub-counties and wards have average sizes that are more amenable to truly local response to needs. By emphasizing these levels, the TA and devolution advocates may be able to promote a form of decentralization in which different groups feel they have greater voice and access to a fair distribution of resources. This recommendation is revisited in section 4.2.

The final elements of the legal framework to consider are the enabling laws that put devolution into effect. Of particular note here are two pieces of legislation gazetted in the second half of 2012: The County Governments Act and the Public Financial Management Act. Each deserves brief comment.

The County Governments Act establishes the functions and powers of the counties (and the decentralized units of the counties), as well as the electoral provisions for county executives and legislatures, and the administration of the County Public Service. Of particular note in the County Governments Act are the provisions of sections VIII and X, which establish protocols for citizen participation and civic education. These draw attention because they are likely to be at the “front lines” of how citizens interact with county government, and how they understand (or do not understand) the process of devolution and the functioning of devolved government. The legislation mandates that counties provide for participation and civic education, but does not specify the mechanisms through which support will be forthcoming. The TA will have a role in the interim period in developing mechanisms for both civic participation (along with a range of partners) and civic education. One aim should be to “bequeath” the institutional knowledge from the TA to the counties and supporting institutions, such that these processes do not start from scratch; rather, as suggested in other recommendations, capacitating selected county-level officials during the transition process will do double-duty in supporting the transition and the smooth functioning of counties thereafter.

The Public Finance Management Act has been the source of considerable controversy since 2011, much of which was centered on the question of whether it would be desirable to have a separate act governing county financial management. In the end, the PFMA will reinforce the tendencies toward central control of county finances, but it should be noted that this is not necessarily problematic, if counties receive adequate transfers under the constitutional provisions to meet their devolved functions. While many decentralization advocates seek greater autonomy for the counties, the motivations for a consolidated bill are partially due to a consideration of best practices elsewhere, some of which come from learning lessons “the hard way” in cases where counties have overspent and compromised national economic stability; this has happened in Latin America, and has been a potential issue in Africa’s federal states (especially Nigeria and South Africa, though macroeconomic crises that might have been caused by provincial/state overspending have been largely averted in these cases).

The PFMA can be understood as counterbalancing a degree of fiscal autonomy for counties with requirements for close collaboration with the central government. Among its many provisions, the PFMA elaborates upon Kenya’s process for the division of revenue (which provides revenue guarantees to counties), and sets up an Intergovernmental Budget and Economic Council to coordinate between levels of government. In these elements, Kenya remains similar to the model in South Africa (which is by many accounts a nominally federal state, and would thus be expected to have relatively substantial autonomy for its provinces). The PFMA also has a clear provision for county borrowing (Sec. 140 – 145, e.g.) that is in fact less limited than in many other countries with unitary states; again, this is coupled with requirements for collaboration with the Finance ministry and other central government bodies. In sum, given the need to prioritize economic stability alongside devolution in the transition to a new system, the PFMA has several appropriate features; they correspond to the Act’s purpose in avoiding problems with public financial management in a system of multi-level governance. The PFMA can be expected to exercise some “centralizing” tendencies, but in areas where central government has a pressing national interest in retaining a modicum of control.

2.2 Challenges for the TA

The context noted in section 2.1 leads directly to the challenges facing the TA. The first major challenge for the TA is to “do no harm”: it must seek to avoid actions that exacerbate social tensions or governance problems. This is a clear goal, but easier said than done. Decentralization can, if done improperly, can worsen conflict by empowering groups bent on social division. It can also “decentralize corruption”, bringing it down to a local level and extending patronage networks. The second challenge is ensuring that the devolution process starts well and continues. This includes the TA’s task assessing the capacity of counties at the outset, of course, but also providing for improvements to county capacity over time. Furthermore, a challenge for the TA is to help ensure that the devolution process is not derailed by a lack of capacity or by efforts at recentralization. That is, the TA is partially responsible for devolution becoming robust and remaining so over time. A final challenge is navigating between the various institutions of devolution to ensure that nothing “falls between the cracks”. Draft bills on Intergovernmental Relations, Intergovernmental Fiscal Relations, County Government, and County Financial Management all featured an array of such bodies, but it is unclear the extent to which some of these have taken root in current legislation.

To phrase this last issue differently, if a function will be important for social cohesion or for improved governance, but there is no body clearly identified to ensure that it is met, does the TA have a role? One possible instance of a necessary function comes from the aforementioned ethnic tensions surrounding devolution. It remains unclear from the state of current legislation how ethnic minorities will be represented in the various counties, which can give rise to tensions as noted above. It may be crucial for social cohesion that minorities feel they have some political voice. A very useful function might be to facilitate interaction between MPs elected in their constituencies and the sub-country structures that cover the same geographic area. If a minority group is not well-represented at the county or sub-county level, it may have some representation in the form of an MP. Facilitating dialogue between MPs and sub-county officials may reduce tensions, and supporting “further devolution” to sub-county, ward, and village levels may generally help the process progress in a peaceful fashion. Some specific proposals for consideration and discussion are noted in recommendations below.

2.3 Implications and Recommendations

These challenges highlight the scope of the TA’s endeavor (which comes as no surprise to the TA itself). The implications of these challenges can be outlined with several interrelated recommendations. At the overarching level, the main recommendation is that the TA will need to collaborate with other institutions for its own work, and encourage collaboration between other institutions for devolution to work. The recommendations all involve the TA collaborating with multiple actors in the devolution environment – county governments and sub-county structures, other executive commissions, MPs, and development partners – to enhance social cohesion and cooperative devolution. They involve a relatively broad interpretation of the TA’s mandate, but not one that arrogates excessive power to make decisions about how counties must govern.

2.3.1. Understanding other bodies, incentives, and constraints The first such constraint is the incentives and constraints facing other actors. The second such constraint is the time constraint, which places a premium on quick and feasible action (instead of more elaborate schemes that might never come to fruition under the circumstances). The limited time available also heightens the sense that it will be necessary for many institutions to undertake collaborative efforts to accomplish their tasks.

2.3.2. Building political capital

One of the central challenges facing the TA is developing a strong strategic planning that meets two sets of constraints: it needs to be both politically feasible and possible to complete in the available time. In other terms, it should be “realistic and rapid”. The twin challenges of political and timing constraints mean that the TA should place a premium on actions that simultaneously enable efficient collaboration (helping the TA to meet time constraints) and bring it into closer proximity (politically) to allies that support devolution. One path to building political capital is to identify – and collaborate closely with – those institutions that have leverage over the decision making process. This includes in particular the Commission on Revenue Allocation, elected parliamentarians, and the ministries.

Another way to build political capital is to earn public support. This would likely involve the TA engaging the broader public in a way that gathers support for its vision of the devolution process. It should be noted that efforts to make the TA’s activities more publicly known will have several positive characteristics that are mutually reinforcing. First, it can provide a sustained basis for interaction with development partners that are committed to the progress of devolution. The TA and development partners will share many interests in disseminating information to the citizenry, and this may constitute a useful beginning to programming in devolution. Second, the TA may find it learns a considerable amount about citizen perceptions, and will be better able to anticipate difficulties that may arise over the 2013-2015 time frame. Third, this will heighten the TA”s own legitimacy in the eyes of the public. While a comprehensive survey of Kenyan attitudes toward the devolution process was not possible, it is a fair guess that many will see it as highly technocratic, taking place inside a state apparatus that has historically not been as open as many in the public would wish. Efforts to engage the public – such as via open meetings (in the style of village meetings or “town halls”, e.g.) may have the effect of giving the TA real legitimacy and the bulwark of popular support.

While the TA and various bodies have already undertaken some initiatives. A couple of options present themselves in the area of seeking interaction with the public:

· The TA could seek to further its process of holding meetings in the various counties, and working with local media and development partners to spread the word about these meetings and any conclusions. This can provide an avenue for communication with the populace that will allow some Kenyans to say their view on devolution has been considered (as it was at the time of the constitutional referendum, when support for devolution appears to have been high). It will also serve as an early indicator and example for local residents that the devolution process is designed to have strong elements of civil society engagement and participatory democracy.

· The TA could serve as a clearinghouse of information on the evaluations of county capacity for the devolution of functions. Whether via electronic media (website, e.g.) or regular public releases of statements (or both), the TA could serve as a body that would take seriously the principle of public availability of information. Of course, this would have to take account of any legal restrictions on the TA’s role, as well as any possible political constraints that may make publicity undesirable (since releasing information prematurely could be detrimental to the process under some circumstances). Nonetheless, the principle of early and open dissemination of information could be beneficial. Information to be disseminated could include the TA’s evaluations of capacity, as well as a clearinghouse of other information and studies that have been undertaken by research institutes and development partners regarding county preparedness.

2.3.3. Collaborating with existing institutions

This leads to the third recommendation, which is that the TA can work with other Kenyan institutions to empower bodies below the county level, so that all groups in a county feel they have adequate political representation. To link this to collaborating with other bodies, two possibilities below refer to cooperation with other commissions, such as the National Commission on Integration and Cohesion (NCIC) or Independent Electoral and Boundaries Commission (IEBC), though it may also be possible for the TA to take on some of these initiatives itself.

· The TA can collaborate to require that, as part of their documentation for devolution of functions, counties provide some plan for further devolution to sub-county structures;

· The TA can collaborate to help require that, as part of their documentation to receive devolved functions, counties show that they have considered the question of representation in their assemblies (see Sec. 7(2) of County Governments Bill), and explain why they have adopted the structures they have;

· The TA can work with the NCIC, CIC, and others to facilitate collaboration between MPs in their constituencies (in which county minorities may be represented) and sub-county structures.

The final recommendation is that the TA can make its capacity building and civic education as efficacious as possible by leveraging the support of other “capacity builders” and by bringing county-level officials into the mix early. Other “capacity builders” include development partners and other central government bodies charged with capacity building. For development partners, the TA’s “matrix” of cooperation will be a useful tool. In terms of other central government bodies, the legal framework requires that the central government capacitate the counties where these fail to meet standards. The TA should join with other bodies charged with this task, to avoid duplication of effort and combine resources. The other step in making this efficacious was hinted at in section 1: beginning early to identifying key “recipients” of the capacity building, so that they can be used as resource persons in turn to help spread the knowledge at the county level. In development circles, this approach is sometimes referred to as “training of trainers”, with the idea being that technical support can be offered to key personnel who in turn share that knowledge or train others on their own. If the TA can educate, capacitate, and empower selected county officials, it will have a multiplier effect as its “trainees” will interact with their county public service on a sustained basis. Point persons in the counties, trained early in the process, can help ensure that devolution proceeds more smoothly over time.

2.3.4. supporting new “linking” institutions The final specific recommendation for collaboration relates to circumstances where collaboration may be needed among multiple institutions, yet no clear mechanisms are in place. In these circumstances, the TA may need to take the lead in new forms of collaboration among various bodies involved in intergovernmental relations. This can include:

· Supporting and participating in “sectoral forums” for coordination of public services by central ministries, ensuring that counties have adequate voice in the process.

· Facilitating other forums that empower the institutions of devolution such as the Senate and strengthen its links to county representatives, such as forums along various axes: Senator-Governor, Senator-County Assembly, and between Senators and MPs from constituencies This section can be summarized with the items in Figure 3. A common theme that cuts across all the recommendations is the need for the TA to engage with a wide range of other actors in order to make its contribution to the effectiveness of devolution. Collaborating with intergovernmental bodies will help coordinate action, while promoting inclusive devolution will likely require work with counties and sub-county structures, MPs, and other commissions to ensure that the devolution process does what it can to encourage broad representation, without compromising the one person-one vote principle.

Figure 3. Devolution in Kenya: Context, Challenges, and Recommendations

3.0 African Experiences With devolution: major lessons

The first two sections of this paper have focused on issues specific to the TA and to Kenya itself. Yet Kenya’s devolution can be informed by the successes and failings of experiences elsewhere in Africa. This section draws thematic lessons from those other experiences, with a focus on how they can be applied to the circumstances in Kenya.

3.1 Background: kenya in comparative perspective

There are several lessons that policymakers and practitioners in Kenya can draw from experiences with devolution in other African countries. To situate these experiences, the key is to understand how Kenya’s experience fits alongside other efforts at decentralization in Africa.

3.1.1 Kenya in Comparative Perspective

Experiences with decentralization have been distinct in each African country, yet certain patterns recur, depending especially upon region and the broader legal framework (some of which is traceable to Anglophone vs. francophone heritage). Table 1 shows how Kenya compares and contrasts with 10 other countries in Africa that have undertaken devolution; these are the countries studied in USAID’s Comparative Assessment of Decentralization in Africa (2010).

One thing that becomes immediately clear is that Kenya’s system is different from all other African countries. Kenya has created 47 counties as the single constitutionally authorized level of subnational government, with provisions for further devolution to other bodies that are accountable to the counties. The counties could be seen as comparable to either “districts” or “municipalities” in other African countries. They are listed as comparable to “districts” here for two main reasons: the average population of the counties and the presence of cities and urban areas (which are akin to municipalities) below the county level. In any event, Kenya is distinct from some countries due to the size of the counties (as contrasted with less populous districts in other countries), and distinct from others in that the counties have a Senate. Both of these issues are revisited in the section below. Of the 10 countries besides Kenya highlighted below, several deserve special attention for the lessons they offer. In section 3.2, there is particular attention paid to other Anglophone countries.

Table 2. Structures Representing Elected SNGs in 10 African Countries

Botswana

Councils

Burkina Faso

Commune

Kenya

County

Ward

Mali*

Mozambique

Autarquia (some areas)

Nigeria

Local Government

South Africa

Municipality

(rural)

District

(LC1)

(LC5)

Parish (LC2)

Sources: Comparative Assessment of Decentralization in Africa reports (USAID 2010).

*Note - The institutions for Mali refer to those in place prior to the 2012 coup. The future arrangement is uncertain. In Mali, the High Council for Collectivities in Mali is a consultative body, without legislative power.

This chart does not capture all of the intricacies of local governance in each case, and Kenya (like other countries) has other subnational structures. For example, in several Anglophone countries, the names of districts often differ in urban or semi-urban settings. Cases where district-level governments go by different names include Botswana (urban councils and rural councils); Ghana (metropolitan assemblies, municipal assemblies, and district assemblies, as well as town councils, area councils, and zonal councils); and Tanzania and Uganda (city, municipality, town). This is seen in Kenya with the case of the cities, municipalities, and towns under the Urban Areas and Cities Act (2011).

3.1.2 Major approaches to decentralization in Africa

While each country’s decentralization process has been different, we can say for the sake of simplicity that countries have followed two major approaches: “Big Bang” decentralization or a more gradual process. Roughly speaking, the “Big Bang” decentralizations simultaneously devolved substantial powers, resources, and responsibilities to subnational governments such as states, provinces, or regions. The clearest example in Africa is Ethiopia in the 1990s, with the two other federal countries (Nigeria and South Africa) also having some similar features. Uganda is a unitary state that experienced a sort of big bang in the late 1980s, but with different traits: devolution was built from the ground up after the state collapsed. An interesting commonality from a Kenyan perspective is that all of these countries in Africa undertook major devolution after a civil war or major social unrest along identity lines. These were all – to some extent – post-conflict countries, and a major imperative behind devolution was ethnic stability. Another interesting tendency is that three of the countries mentioned (Ethiopia, South Africa, and Uganda) have all witnessed either the central government retaining considerable power or some form of recentralization after devolution. Nigeria is an exception to this rule, remaining quite decentralized (but with other challenges), as discussed below.

The more gradual processes have been, indeed, very gradual. They have been modest, to the point that it is unclear in some cases of decentralization if much power has been devolved at all. African countries undertaking gradual decentralization have generally passed impressive decentralization framework laws, have held elections for local governments, and have passed some responsibilities to them along with some guaranteed access to revenues. This is impressive on paper, but on the other hand these processes have generally seen a limited transfer of funds and most public servants remaining under central ministry control. Examples include most francophone countries that have adopted decentralization (Benin, Burkina Faso, Mali, Senegal, e.g.), along with Mozambique and some Anglophone countries such as Botswana. It is interesting that some of these (Benin, Botswana, Senegal, e.g.) have been among the most stable and democratic countries in Africa since the end of the Cold War

3.2 Challenges for the TA

The challenges facing Kenya and the TA flow from the examples above, and are to avoid the limitations and excesses of decentralization seen in other countries. Of course, the TA’s ability to solve problems is circumscribed by the issues raised in previous sections: devolution is a democratic parliamentary process in a country with resource constraints, so the TA cannot just bend the process to its will. Still, it can help respond to many challenges, which can be grouped in two categories as noted above.

3.2.1 Too Little Autonomy: Centralized Governance Persistence in spite of Devolution The first category of challenges in African decentralization is “too little” devolution resulting from the process. This can take many forms. One is that state bureaucracies can continue to wield considerable power even after laws have been promulgated to devolve power, as has happened in francophone countries especially. This can be understood as a question of incentives. Why would central states willingly devolve powers and resources if they can retain these? Sectoral ministries and deconcentrated bureaucracies may retain a strong preference for centralized governance. Meanwhile civil servants seek to remain part of the national system. The dissolution of the Provincial Administration should contribute to devolution, but the continued employment of these officials at the county level might mean that a legacy of top-down state administration remains in the “political culture”.

A related problem is that the political support for devolution is quite likely contingent. Without passing prior judgment on the preferences of Kenya’s top public officials, it can be said from other African countries that politicians frequently prefer devolution when they are in subnational office, only to oppose it when they have national responsibility. As the phrase goes in politics, “where you stand is where you sit”; this can also be said as “your position depends upon your position”, meaning that one’s position on an issue (such as devolution) depends upon the office one holds. There are many instances of top politicians supporting more devolution when they are in the opposition at the national level, only to prefer centralized control when they claim the presidency. The same holds for political parties as a whole: a party that is in power in municipalities and out of power nationally may logically advocate for devolution, and then may reverse course if they later win the presidency. On the other hand, a party that governs nationally today may resist devolution now, but may support more devolution if it is likely to lose nationally in the future and win big at the county level. A word of caution is thus to beware presuming that the “political will” to support devolution will remain intact in the central executive.

This challenge has translated into a common problem observed across Africa, as noted by the TA’s Chairman Wamwangi with reference to the Zimbabwe case: a devolution process can look “great on paper”, but be far less powerful or meaningful in practice. Put another way, decentralization has advanced more de jure than de facto: processes have devolved plenty of legal authority, but not much real autonomy.

This set of possibilities is a major concern for Kenya, given its history of centralization. Too little effective devolution has been most common (unsurprisingly) in countries with long histories of centralized states. It is possible to envision in Kenya attempts by many actors to limit subnational autonomy, whether these are central government ministries or elected officials. Similarly, one interpretation of a peculiarity of Kenya’s devolution suggests that some of this may already have occurred: one plausible interpretation of the relative lack of devolution in the education sector would involve resistance on the part of organized groups of civil servants (teachers, e.g.) to decentralization of their positions.

3.2.2 Too Much Autonomy, Too Little Accountability: Governance Problems from Decentralization While many decentralization processes in Africa have involved too little autonomy for subnational governments and too much accountability to central governments, the opposite problem could also arise: too much autonomy and too little upward accountability. Decentralization can create more problems than solutions, if it is not done correctly. Autonomy for counties requires accountability and capacity to accompany it, otherwise devolution can simply “decentralize corruption”. In Africa, the most problematic case of this is undoubtedly Nigeria (see table 3), which has several states that are renowned for corruption, even when a central government makes efforts to curtail it. But the problem is not limited to overt corruption. Another related problem – albeit less obviously criminal – is that decentralization can create more new opportunities for patronage and favoritism. Decentralization means new layers of government, and new “opportunities” for politicians to seek rents. County governments will not be immune to the pressures of favoring certain groups or seeking preferential treatment from the central government. In some extreme cases, decentralization has created opportunities for central governments and governing parties to entrench themselves at the local level by creating elected positions for party members; this has happened in neighboring Ethiopia, for instance, where the governing party now controls over 3.5 million local elected seats (in a country of somewhat over 85 million people). This situation will not be replicated in Kenya’s multiparty environment, so it simply shows the extreme version of what devolution can mean politically.

Table 3. Lessons Learned from African Devolution:

Cautionary Tales from other Countries

Corruption is decentralized Accountability is inadequate

Botswana (also francophone & lusophone countries)

Autonomy limited by admin., fiscal realities Human resources remain centralized

Central party (EPRDF) retains considerable control Accountability is questionable in single-party context

The exemplar of problematic devolution from too much autonomy for subnational governments is Nigeria, and the problem of too little autonomy is exemplified by many francophone West African countries, but can also be seen in the case of Botswana. In between these “excessive” and “inadequate” forms of devolution sit the countries that are likeliest to have more useful lessons for how Kenya’s devolution can be effective, though none is a perfect model. These are the Anglophone countries of Tanzania, Uganda, South Africa, and Ghana, each of which provides positive lessons and cautionary tales as seen in Table 4 below.

Table 4. Lessons Learned from African Devolution:

Countries Comparable to Kenya

Democratic with solid development Ethnic/regional tensions unaffected Autonomy limited by fiscal realities Human resources remain centralized Center appoints 30% of district officials

Strong state capacity Ethnic/regional tensions reduced Central party (ANC) retains much control Autonomy limited by fiscal realities Human resources remain centralized

Civil society active in governance Ethnic/regional tensions reduced Central party (CCM) retains much control Autonomy limited by fiscal realities Human resources remain centralized

Relatively robust development Ethnic/regional tensions reduced Central party (NRM) retains much control Autonomy limited by fiscal realities Experienced recent recentralization

The positive and negative lessons from experiences in these countries can be summarized. On the positive side, they are all countries where devolution seemed to help (or at least not harm) defuse ethnic or regional tensions to some degree (between races in South Africa, with Zanzibar in Tanzania, and with the question of Baganda calls for federalism in Uganda) and have proved consistent with a degree of economic development and democratic governance. The political outcomes of devolution and the development impact in these countries have been modestly constructive. Why only modestly? The negative lessons show that these devolution experiences still retain a substantial degree of central control.