Kibaki's Blockade Against Devolution Laws

mank,

There is no mess to be fixed. Kibaki and his cohorts are the ones creating a mess.

I find the Standard version of the issue much clearer.

Here it is:

www.standardmedia.co.ke/InsidePage.php?id=2000052986&cid=4¤tPage=1

The root of this problem is simple. Kibaki and his cohorts have decided to retain the PCs, DCs, DOs by kifua even though there is no constitutional provisions for them and more importantly there is no work for them.

They kept them in the Draft from the Ministry of Internal Affairs and that of the OP. They have no work. They are just supposed to be there to represent the national government. What exactly will they do? What are their tasks? What are Kenyans going to be paying these people for? So far they are being maintained merely as watchmen and women for State House. That is a collosal waste of money to say the least. If they are there to handle security matters then specify what those security matters are, who will handle them and how. You don't need the entire PA system smuggled in through the back door for security. That is a very lame excuse to maintain the status quo.

What the M.Ps did was to compound the problem by creating work for the DCs and DOs within the county governments. These positions should have been abolished completely and let the national government use the time it has to reform the provincial administration system not just to impose the old one they had and claim they have reformed it or that they need five years to do so.

You don't need thousands upon thousands of state employees with no work getting paid to keep an eye for the president when the national government has no clue what they want them to do.

In my view the first step towards solving this problem is to do a way with the DCs DOs etc until the national government comes up with new reformed structures which of course wil have to be debated and accepted in parliament.

The so called national government just like the counties cannot make roadside laws. Whatever laws they want must pass through parliament.

The government has wasted too much time trying to figure out how to sneak the PA system back rather looking into ways of reforming it. So what M.Ps should do is to remove the whole chunk about the DCS and DOs and ask the government to go back to the drawing board and come up with something workable.

The other aspect is that this could end up in a stalemate. If parliament cannot get the 2/3 majority to overide the Kibaki veto and Kibaki cannot get the numbers to torpedo the system to his liking we have a stalemate. Then what?

Mank,

Chicken finally coming home to roost. Na bado. We are still grappling with the election date, as we speak not even captain Fabregas knows when we shall vote despite it being his secret weapon. And the issues just keep cropping up daily. If only we could have waited for a month or two more.

The article you cite above is as vague as can be. More interesting is its ceding of the responsibility of restructuring PA to the national government.

Adongo Why are you complaining about how the constitution is unfolding and yet you were not in the "NO" side, which according to you was the loser? If you think about that question seriously we probably can have a reasonable discussion.

You are the wrong person to ever expect an objective and reasoned discussion of anything with. So I won't struggle much. As I pen off, sorry to tell you, the time to make your humble suggestions to get rid of the DCs DOs na kadhalika was pre-referendum - so I am not sure which part of the referendum you do not want to rehearse, because you were rehearsing the pre-referendum phase even before I made my first input. But you always like turning your discussants to the subjects of the discussions, hence the contradictions as far as the actual subject of discussion is concerned.

You cannot insist on pointing fingers at referendum "losers", excluding yourself from the group, yet in the same breath be the one crying loss by pointing out that things are not going your way. If you won there should be nothing to complain about! You should leave complaints to losers like me, me who lost the moment we as a nation decided we had not the time to iron out the ambiguity that is the source of the mess you identified when you started this thread - the fact that you turn around to claim that there is no mess (just to counter me) means nothing unless you already feel that parliament and Kibaki are at equal footing, a footing that is also the prescription of the constitution - i.e. unless you believe that this thread has no basis.

Adongo,

I pointed out the article that gives Kibaki the constitutional standing for the position he holds - that article was purposely put there as a thermoflask of a pre-referendum hot potato. At least some other hot potatoes were inadvertent!

So what seems the problem is that it is the constitution that is the problem, not a delivery problem as you present it. If you disagree, please provide the article that shows Kibaki is contradicting the constitution by taking the subject position.

i think we are starting on the wrong foot if we perceive this as yet another round of tug of war between who wields the most power/clout

in the old constitution, the provincial administration was primarily (ab)used by the executive in one of two ways

a) to smother dissent
b) reward sycophancy

the administration was also used as a pivot center for delivery of other govt services

this is enshrined in the founding elements of the PA and aptly captured on the Ministry of eternal insecurity's website as follows

==
Provincial Administration traces its origin to the colonial era, when colonial authorities introduced institutions which represented both formal mechanisms of Government decision-making and political influence. During this period, its main functions were to collect taxes, maintain law and order and pacification of the natives in the colony. It also provided judicial services (lay services) and participated in legislative matters in the Local Authorities.
The colonial administration, created institutions that included the native research, in a bid to strengthen itself at the grass root levels and to ensure that development and enforcement of policies and laws were seen as locally made. This indirect rule was an administrative technique that was meant to legitimise colonial leadership. The chief, then known as the village headman, derived his authority from the Chief's Authority Act. He was the prime instrument of the District Commissioners, then known as Regional Agents, for the disposal of colonial government business. The Headman relied on "village bullies" to exercise his authority and to effect colonial Government policies. These "village bullies" took up the role of the native police by enforcing and arbitrating as delegated by the Headman.
The Local Native Councils (LNC's) were established in 1924 and played an advisory role to the District Commissioners, levied taxes and made by-laws for the agriculture and education sectors. Also in place, were the African Tribunal Courts, whose main function was to adjudicate disputes under customary law. In reality they were governed more by English Law and administrative supervision, than purely traditional judicial process. The District Commissioner served as the Court of Appeals for the tribunals.
==
source: website - min. of eternal insecurity

the national government has specific duties and responsibilities working in tandem or side by side with county government which in turn has its complementary duties and responsibilties.

this is a tremendous opportunity for kenya to break away from "i am the boss" to "lets forge ahead together"

the roles of the restructured national government administration to execute its mandate according to the 4th schedule is well defined just as that of county governments.

two issues simultaneously arise.

one is that in terms of technical competence and clout for project execution. in the given areas, the county governor controls most clout and if county governors chose to work well with the constituency reps, they will pretty much have de-facto and legal mandate control over projects

in other words, even if the projects are "national", local governments will exert their influence over implementation

but the second issue is the most contentious - that of security. basically the PA was an extended (bully) police force using the headmen, chiefs, DO, DC, PC to intimidate locals by use of (brutal) force or reward since these guys sat in almost every local council or body. therefore politicians wanted to and still want to be able to control the security apparatus.

this however should change as the new police structure is set in place. already the judiciary is on its way to reform, still shaky and a long way to go, but the judiciary is at least marginally free from executive influence.

if done right the police force will be on its way to reform as well.

therefore the role of PA should generally be reduced to that of providing admin (coordinating) services for national government services as per the fourth schedule with reduced influence on bully services

so back to my point, this is an opportunity for the ministry to restructure service delivery based on schedule 4 as well as the principles of devolved government.

if this is indeed done genuinely then kibaki is right that the constitution provides for the operations of national government be separate from those of county government but complementary

what i see missing from the documents is the convergence/collaboration zones i.e there doesnt see to be a clear and well defined information sharing policy or mechanism in place. therefore it may be possible for county government or national government to have access to critical information but no mechanism provided either for mandatory and/or opt-in sharing of the same.

finally although i've downloaded the three bills, and skimmed through quickly am unable to find where it explicitly states that the DCs and what not report to county governor. maybe will find time to go over it later this week, but if someone has that detail kindly share.

the real challenge here is for the national govt to outline the restructured prov. admin. specifying roles, structure, limits and purpose etc for service delivery of stipulated national govt functions. and not necessarily for the county govt do that for them.

the golden opportunity is therefore for the national government to actually "re-invent" this tool and refashion it from a colonial and retarded oppression relic into a modern tool that revitalizes and rebuilds our nationhood.

to turn this into a juvenile tug of war will get us nowhere. we need visionaries, and not people either trying to cling onto power nor create new centers of power.

the three bills are downloadable from kenya law (presented by mudavadi)

www.kenyalaw.org/klr/index.php?id=98

bw. dedan kimathi

first of all kudos,

so far your contributions are reflective of a just kenya. you have a huge task ahead on account of your moniker. so far it appears you will fit the bill

on the issue of provincial admin

if it retains the old mandate, its going nowhere

if they reinvent themselves they have opportunity under the new dispensation. otherwise they will fast become irrelevant and obsolete. i will give them a little benefit of doubt to reinvent themselves for now

FYI - the biggest "problem" i have with adongo is that on more than 90% of his contributions he is right. he needs to up it to 99% ;D otherwise we do not give him any rest. in my view this is one very good man that has gone through a lot but remains committed to a better kenya.

tactician,

How will the DCs, DOs, Chiefs, Sub Chiefs etc help the national government with any of those tasks? That is where we need to start because the issue here is about retaining the PA system?.

How will the DOs help with Foreign Affairs for example? Doesn't the national government today handle Foreign Affairs? How about energy policy? Postal Services? Health Policy? Agricultural Policy? You can add on the list. The DCs, DOs Chiefs etc have absolutely nothing to do with any of those.

Other than Disaster management, correctional services and policing, I see very little in that long list where the DCs, DOs, Chiefs etc are needed. Does the country need tens of thousands of these PA workers to do those few things? Can we have the entire PA system in place waiting to distribute food when there is famine? Is that really sensible and affordable?

There is no issue about the relevance and importance of the national government in the counties after all the national government retains 85% of the national budget which has to be used to provide services to Kenyans each and everyone of whom will be living in some county. The issue is how do you structure the delivery of those services.

Agricultural Officers should continue their work in the counties and get paid by the national government. They do not need DCs and DOs to hold their hands to tell them what to do. Veterinary officers should do the same. Postal workers can go on with their work. Railway services do not need DC and DOs. We can go on and on.

My point is that the national government has to come up with specific jobs that these DCs, DOs etc are going to be doing instead of merely claiming that the national government needs a presence in the counties. We cannot complain of the extra cost of additional layers of government while at the same time carrying on with excessive baggage of the PA whose jobs no longer exist.

Take qualified staff there and re-deploy them in other areas where they can be productive and then reform the national security structures and deploy an appropriate number of personnel working for the national government in coordination with the county governments to do the job. That is what the government should have been doing for the last year and a half instead of just scheming to retain these colossal dead wood and stick the country with billions in expenses for people doing nothing.

This thing is very doable if people think seriously about it and the politicians stop playing endless games to preserve the status quot.

Very well said Mank. As Dedan must have realized, no one is talking about the second (or is it the third?) Tuesday of August as the election date despite being explicit in what he calls the constitution proper (whatever that is). Even the judges of the high court could not wrap their heads around it.

Similarly, on the current issue, the drafters of the supreme law could not just make up their minds as to whether we needed to do away with the PA or not.

In fact, I can dare say, they intended it to remain but in a different form as the national government (Kibaki, Kimemia and cabinet) may wish as long as whatever structure is adopted does not dilute the county government.

My opinion is different. I think the drafters (in this case the COE) wanted to abolish the PA. But they knew it would be a strong campaign tool for those against it because ordinary people think chiefs are great.

Whatever the arguments, I do not see a place for 'provincial administration' reporting to a president but operating in a county government. That is a recipe for conflict.

As expected, interpretation and more important – implementation - of the constitution will continue being contested. Section 17 of the 5th Schedule states:


"Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with, and respect, the system of devolved government established under this constitution."


It’s only logical to assume that the restructuring will be on-going even after Kibaki’s term. The restructuring will continue after Kenyans elect 47 County Governors and a new President. I can bet the trajectory of the restructuring will definitely not be the same as what Kibaki envisages today.


But even if we stick to the current legislation that Kibaki is attempting to veto. There is already a big element of competition here – between the Office of the President (OP) and legislators. Don’t rule out MPs marshalling 145 votes to over-ride Kibaki’s veto.


Save for CDF’s, the Provincial Administration (PA) - serving interests of the OP – is always at loggerhead with MPs. The PA greatly reduces the influence of elected MPs on local policy decisions and resource distribution. MPs don’t like playing subordinates to PCs, DCs and these administrators assigned to their areas by the OP. MPs will confess to you that it is easier for a Chief to compel villagers to attend a baraza than for an MP to summon a community meeting. Scrapping these positions will be a power advantage for MPs who wish to continue serving as MPs; and still an advantage for MPs wishing to now become Governors or Senators. They see an opportunity – they will likely seize it.


MPs aspiring to be governors don’t want to empower the PA which would then compete with them (for influence and power) in future. MPs will also confess that under the old Katiba, to even conduct a Harambee, they had to literally cow-tow to the Provincial Administration. It is anybody’s guess what MPs will want to do regarding this situation; to eliminate the need to bow down to the PA.


On the matter of PCs, I don’t even think that title or vocabulary should exist anymore. There are no provinces anymore; why retain PCs? On DCs, Dos etc…whatever new role they assume must recognize that County Governors will be the duly elected executives of those counties. Common sense dictates that their role becomes balanced between the two levels of government.


If we are genuinely serious about dismantling the Imperial Presidency (as the new Katiba requires), we must appreciate that the PA has always been the naughty hand perpetuating suppression. If we are serious about sharing power between the national and county governments, then the PA must give room for emergence of elected leadership in counties.


In terms of security, the OP should recognize that county security is part and parcel of national security. It is silly to expect that 47 elected county governors should be excluded from national security matters; strictly shielding security within the OP and PA. There should be collaborative and cooperative governance if unity is to be maintained. There is no need inviting unwarranted suspicions between county governments and the national government.


Coming to the vexing question of land! I know this informs a big part of the nervousness by the OP when it comes to the PA. The OP doesn’t want to let go the PA partly because it hopes to cling onto the security apparatus within the PA; so as to maintain an eye on individual parcels of land scattered across various counties. This will be dangerous attitude. Elected county governments must have a role to play in safeguarding public land within their jurisdictions. The national land commission will also have its separate functions safeguarding state land including national forests among other functions. But trying to squeeze the PA as a buffer between county governments and certain commercial land interests will be direct courting of disaster. Kibaki’s current move must be critically interrogated with this point in mind.


Lastly, Kibaki himself should be the last man to start fretting about possibility of county governments creating ethno-political identities because he superbly failed to unite Kenya and reduce ethnic tensions throughout his tenure. Ever since he rejected unifying all constituent members of NARC in preference for ethnic cocoons; there has been entrenchment of politics of exclusion, isolation, tribalization and marginalization.


Today, Kibaki gleefully watches the perpetuation of hate rallies along the tribal-divide-and-rule paradigm. In my view, the PA may have very limited role in stopping Kenya’s slide towards the direction of counties that are self-defined by ethnic identities. That horse already bolted from the stable – the moment the colonial-carved 47 counties were listed in the Katiba. Kenyans should accept the new devolution structure where power is shared between counties and the national government.


Article 179 of the Constitution requires that all county executive authority and its exercise be vested in the County Executive Committee (CEC) headed by an elected governor and his or her deputy. County governments are empowered by Article 183: Clause 1 (a-d) to implement county legislation, manage and coordinate county administration and their departments including functions conferred to them by national legislation. County governments will also create county public service mechanisms responsible for creating offices, recruiting, promoting and disciplining public servants within their jurisdictions. This means they will have their own bureaucracies – not the PA - to enable them to better serve their citizens. A president’s hand-picked PA should/must not interfere with the county bureaucracy.

mank,

There is one question you folks have not answered. What exactly are the PCs, DCs, DOs and Chiefs going to do for the national government? What is their job description? What duties and responsibilities will they be tasked to do? Where are those duties provided for in the constitution?

It is not enough to just keep saying that the PA system has to be restructured in five years. What will they be restructured to do? If any of you can bother to answer that question you will find out just how irrelevant the PCs, DCs and DOs are.

There is no provision in the new constitution indicating that the PCs, DCs, DOs etc have to be retained. Those positions can be eliminated or re-assigned to align with the devolved system of governance as part of the restructuring constitutionally provided for. Restructuring does not and cannot mean retaining the old system. People should not confuse restructuring the PA system with keeping the PCs, DCs and DOs when they don't even have a job description that is consistent with the constitution.

People need to get into the solutions business. That is what will move the chains up. I don't see that from those telling us that somehow the constitution got the country into some kind of a bind. The status quo is not an option. That is where we have to start from.