(Adm Note: We received this from the Author, who then wished to remain anonymous. The note granted this board total freedom to use the article as we wished. He has subsequently changed his mind and we may be forced to take it down).
William Faulkner once said ““The past is not dead. In fact, it’s not even past.”
The direction that debate on Devolution is taking evokes the feeling of déjà vu for those who have followed the history of attempts to decentralize power in Kenya. With the latest juvenile attempt to deny governors the right to fly flags, it is my submission the wheel has almost gone full cycle. The work remaining to dismantle Devolution is surprisingly little – if one were to set his mind to it! The most critical requisite element for such an intervention – public opprobrium against counties and governors – is present and growing by the day.
In any event, Devolution as envisaged by many Kenyans was effectively mutilated and cast out of the constitution proposals at Naivasha before it was ever presented to Kenyans for a vote. Key provisions – such as the 2 tier regional government – were removed. It is now amazing that one of the architects or supporters of the Naivasha Mutilation – Isaac Ruto – is now presented as the most reliable defender of Devolution. It is perplexing that the same Isaac Ruto now turns around to point at fellow “Naivasha co-conspirators – William Ruto and Uhuru Kenyatta – as being the “greatest enemies” of Devolution! Perhaps Isaac Ruto has encountered his Damascus moment?
The fact is: without Isaac Ruto’s support, the PNU-led anti-Devolution column in the PSC Naivasha, would not have managed to discard the province and replace it with weak, indistinct and economically unviable entities beholden, inferior and answerable to the powerful central government in Nairobi.
The pedestrian manner with which some legislators talk of institutions of Devolution (including governors) almost creates the wrong impression that it (Devolution) is a badly thought out idea, probably introduced by some giraffe-necked selfish politician(s). Yet the truth could not have been any further from this. Devolution is probably the longest debate that the country has held; dating back to the pre-independence period. What happened in Naivasha strange as it may sound was nothing new – it has happened before. Anti-Devolution forces whenever granted an opportunity spare no effort to mutilate and eventually destroy it. Devolution has however proved surprisingly resilient. With many countries in the world embracing Devolution as the modern way of widening and deepening democracy, it is too early to rule out the final triumph of real Devolution in Kenya.
Thus the debate on Devolution of Power is a little older than the country – Kenya. This debate became more clearly defined with clear fault lines around 1954 and after the 1963 elections that led to the independence of Kenya. The actors have changed over time, but the issues remain the same. Positions – even of families for and against – have shifted with time. For example, Jaramogi Oginga Odinga was not just opposed to Devolution in every form, but actively aided in dismantling the system at birth. Yet his son, Raila Amollo Odinga, is considered by many the force behind modern Devolution in Kenya. In other words his role in pushing for Devolution of power in Kenya is unquestionable. Uhuru Kenyatta has declared his support for Devolution (as is from Naivasha) – something his late father might find, a little revolting, to put it rather mildly.
There has neither been a shortage of critics of Devolution nor any attempt or will to yield to rational discussion, leading to sound conclusions. Like all debates founded on emotions,ignorance and personal or collective prejudices, the opponents of any idea also become the “authoritative” sources of information on the very issue they are so deeply opposed to while semantics and trite word-play easily replace nonexistent substance. Over the years therefore, the supporters and opponents of the Decentralization of Power have traded places almost automatically depending on such mundane issues as the terminology applied in reference to that system.
While not denying that a good number of Kenyans voted for the 2010 Constitution with full knowledge of the implications of Devolution and other issues, the experience of watching and participating in the debate contradicts that belief. The fact that Kenya now has a limited system of decentralized government and enacted on the authority of a referendum-supported constitution is proof of the power of propaganda and yes, semantics, rather than a popular appreciation of the benefits of decentralized power. For instance, had the word “Majimbo” appeared anywhere in that proposed constitution, even without having any concrete alteration to the current provisions of Devolution, a large number of Kenyans would have voted to oppose it. As it were, they voted for “Devolution” and discarded “Majimboism”. Opponents of Devolution had already stacked the deck in Naivasha and probably cared less if the watered down version passed the referendum. The opponents of Devolution had no plans to share power with the devolved units. Security (Police, Intelligence and Paramilitary), Quangos1 and the Judiciary were left out.
In the early years of Kenya’s independence, the official KANU position as intimated by Jaramogi Oginga Odinga in his book Not Yet Uhuru blames the white settlers for devising the system as a way of indirectly controlling the country and keeping the land they had grabbed. Odinga simply expressed a well known and accepted position of KANU.
KANU saw Majimboism as a diabolical enterprise of the white settler class to split Kenyans into Bantustan-based ethnicity at the expense of a more desirable nationalist state around centralized authority. Since KANU was dominated by the two big tribes – Luo and Kikuyu – whose members had spread all over the country in search of labor and other opportunity, ethnic division of the country was unacceptable to them. Few can argue that the two tribes lacked the motivation to maintain Kenya as a “unitary state”. Following the construction of the railway, Luo émigrés lived in all towns and provinces in large numbers. The Kikuyu were equally spread out in Kenya. There was remarkable ambivalence among the Luhya, with the Maragoli whose numbers as casual workers in white owned farms naturally concurred with KANU and so voted; the Bukusu and a majority of the Luhya sub-tribes went along with KADU.
KADU on the other hand – supported Majimboism (regionalism) – a proposal for decentralization in which the provinces would each have equal status; KADU supported (and did in fact at some point form) a national government as long as such a national government did not compromise the position of regional entities. Ironically both KADU and KANU believed they were protecting popular interests in Land.
Throughout the negotiations for Kenya’s independence, KANU remained hostile to regionalism while KADU rejected all encompassing centralization of power. The fact that white settlers sympathized with KADU may have exacerbated KANU’s paranoia. KADU being largely composed of multiple minority tribes had found support from the white settlers who considered themselves Kenyan minority.
Contrary to the claims by Jaramogi Oginga Odinga, there existed no evidence that the settlers had founded Majimboism. If anything the Coastal Kenyans might have originated the idea. As residents of Kenya, settlers had to fit in to the political debates and spectrum of the day. They could not identify with “Nationalist” KANU whose clearly stated objective as expressed in the rhetoric of its national political demagogues was to expel the settlers and take over land. Clearly the small tribes feared domination by the big tribes. They had just seen how their small tribal “states” had been seized and subjugated under colonial rule for over 70 years and therefore naturally feared exchanging a white tyrant for a black one. Whether a decentralized government would have offered the desired protection from the domination envisaged by KADU is an open question.
However was this ever about Majimboism or Nationalism? Both Majimboism and Nationalism would later turn out to be mere tools for power hungry politicians to replace the colonial government and assume all the trappings of power, regalia and draconian power. To this end a coterie of politicians and hangers-on devised bewildering public lies, half-truths and national deception to achieve their nefarious aims. Just like the involvement of whites in KADU became a propaganda coup for KANU, most of the facts around centralized power and Devolution were twisted by both parties in order to win support. For example, during my time in school, children were taught that KADU was the party that opposed uhuru (independence) and wished to keep Kenyan Africans under whites forever. This was openly repeated on national radio especially during Madaraka and Jamhuri Day holidays. Land issues were twisted as well to present KADU as wishing to allow whites to keep African land and condemn Africans to suffer on barren reserves. With this hostility, it is clear that KANU could only have gone through the motions of signing the Lancaster deal, having no real intention to implement the 1963 Independence Constitution.
It is not clear exactly when KANU decided to exterminate Majimboism but when it happened, the number and frequency of constitutional amendments and other legislation brought and enacted before parliament set a record that would never to be beaten for a long time to come. Lost on most modern critics is the fact that while the amendments set out to pulverize decentralization, the main objective either changed or had always been a power grab by KANU and Kenyatta. Asked how and when KANU started the journey to reclaim power from Regional governments a former minister in the Kenyatta government that I spoke to some years ago (name withheld by author) candidly stated: “We started with fitina”. In other words, the Kenyatta government launched a massive anti-Majimboism campaign to isolate KADU and Regional Governments from the people. This appears the same recipe being followed today.
With the government in control of the only broadcasting media and having tamed the print media, it was a one-sided affair. All the falsehoods trumpeted by KANU could not be refuted for lack of any medium. With draconian laws on “public security” now in place, public rallies by proponents of devolution to educate the public were out of question. Before the end of the first term of the first Independence government, not only was Majimboism dead but almost all checks and balances in the constitution, provisions on land, civil rights protections and the independence of the electoral body and judiciary had been removed. By the time Kenyans went to the elections again in 1969 – after a one year delay – an imperial presidency existed, cheered on by a docile parliament, watched on by a toothless Judiciary, supported by a corrupt and draconian centralized Police and run by greedy mandarins of the compliant Civil Service and reliant on tribal allegiance.
The question is how did the Kenyatta government achieve this feat? It is no ordinary act to mutilate and deform a country’s constitution. A detailed analysis of this is probably a task for another day. Suffice is to say, no person would have achieved this without some popular support. Some have looked at the results of the 1963 elections and suggested that KANU got the mandate to scrape Majimboism. It is curious how a 53% electoral win (House of Representatives) could translate into a mandate to undertake the massive constitutional changes that KANU under Kenyatta carried out.
As already known, in April 1963 The Kenya Constitution was enacted as an act of the British Parliament, becoming law on the 31st of May the same year. Key provisions included a bicameral parliament comprising of 131 representatives and 41 senators. The cabinet was to be headed by a prime minister from the majority party. The country was therefore a British dominion with the Queen as head of state and a freed Kenyatta as the Prime Minister, heading internal government. Power was decentralized and Regional governments and legislatures provided for. Kenyans had gone to elections and KANU secured a narrow win (53%), forming the government led by Jomo Kenyatta. The main task of the government was the implementation of the constitution.
There were clear schedules and timetables for the transfer of functions and finances to the regional governments. The KANU / Kenyatta government failed and/ or refused to abide by these provisions. Instead, beginning the following year (1964) a raft of successive amendments would be brought before the National Assembly, enacted and quickly put into action over the next five years that would kill regional governments, centralize power, trample upon institutions and transform Kenya into a regular dictatorship with no rule of law.
The Constitution of Kenya (Amendment) Act No 28 of 1964, transformed Kenya from a Westminster Democracy in to a Presidential Republic. The key elements in this amendment were the creation of a powerful Office of the President. The president became both the Head of Government and Head of State. To avoid a backlash from the electorate that had been deceived, the new president was not elected by popular vote but by parliament which became an electoral college.
Following the amendment, power hitherto spread to the regions and other institutions was harvested back to this new mammoth office. Notably executive power was reclaimed from the regions and handed to the new imperial presidency. Authority on Lands that had been granted the regions was now reclaimed and placed under the office of the president, whose bearer could now single handedly allocate land to whomever and whatever he wanted (It later turned out that he had personally become the single largest single beneficiary along with his family).
Not long afterwards, KANU was back in parliament to seek the enactment of yet another amendment: The Constitution of Kenya (Amendment) (No 2) Act No 38 of 1964. Provisions on local authorities were amended to limit grassroots democracy. The power to alter regional boundaries was transferred to parliament. Independent sources of revenue to the regions was stopped making the regions entirely dependent on the willfully poor magnanimity of the central government.
A degree of megalomania now accompanied some of the subsequent amendments. For example, the Kenyatta government found the idea of regional leaders holding the titles of “President” highly offensive. The fact that they also carried the National flag on their cars irked the central government. From being called Regional Presidents, leaders of the regional governments were stripped of their regalia (flags) and renamed “Chairmen”. This was partially done to increase the prestige of the President while humiliating the regional authorities. All reference to “Regional” and “Governments” was deleted and replaced with “Provinces”. Any observer would have noticed a repeat of the same event(s) by the recent childish attempt in parliament to strip governors of regalia.
Lest the judiciary intervene and stop the cannibalization process, KANU took steps to emasculate it through a series of further constitutional amendments. The independence constitution had provided that the head of state consult at least 4 regional presidents before appointing or removing the Chief Justice; The Constitution of Kenya (Amendment) (No 2) Act No 38 of 1964 granted the president sole authority to hire and fire the Chief Justice. The President now enjoyed the power to hire judges alone. The next amendment would abolish appeals to privy councils and replaced the Supreme Court with High Court.
One could easily draw a parallel between the ongoing anti-judiciary brouhaha and what eventually happened in the 60s. Then as now, what can only be described as hostile propaganda preceded the prejudicial actions later taken against it. In essence, the target of intervention underwent “softening” prior to every debilitating attack.
The legislature was not excluded from this constitutional anthropophagy. In its case, the goal posts were changed (by widening) to ensure the KANU team scored more goals easily. The Constitution of Kenya (Amendment) Act No 14 of 1965 reduced the constitutional amendment threshold from 90% and 75% to 65% allowing KANU to henceforth amend the independence constitution at will with fewer legislators, then and in future.
While the 1963 Independence Constitution, granted the Head of State (amended to “President”) the power to declare a state of emergency, the declaration had to be approved by parliament within 7 days or lapse forthwith. Following the amendment, the period of Approval of Emergency was first increased from 7 to 21 days starting in 1965 and by 1966 it had been extended to 8 months. The parliamentary threshold for such approval was also reduced to a simple majority down from 65% – weakening parliamentary checks and safeguards. In 1966, the North Eastern Province, where no pretence of setting up a regional government had been carried out, was now firmly placed under direct rule by decree. Perhaps the new measures to amend the law removing civilian control over the military could be seen as a repeat of what Kenyatta did.
To get started on the constitutional mutilation, KANU had needed more legislators. KANU had won 83 out of 124 seats in the House of Representatives. It thus had the requisite majority in the House to govern. It however lacked such a majority in the Senate where it had won 18 out 38 seats but somehow managed to co-opt some independents and bulldoze new small parties to support its agenda. The opposition KADU was itself not entirely hostile to cooperation either. KANU was however not simply interested in running government. KANU wished to rule Kenya. KANU needed more power. Finding it lacked the numbers; KANU sought them – wherever they might be. KADU’s Moi now formed an alliance with Kenyatta with the aim of dismantling KADU. For dropping Majimbo – the backbone of his Rift Valley People – Moi was promised a personal promotion. Here one can see a parallel where Moi trades the aspirations of his people for a job; with William Ruto helping PNU to delete the Rift Valley and other regions in exchange for a job. Both Moi and Ruto received the same position – Vice President (now renamed Deputy President). Just like Moi betrayed the aspirations of KADU and the Rift Valley, so did William Ruto undermine those of ODM and the people of Rift-Valley.
In the 60s, KANU engineered the defection of opposition MPs to its ranks using inducements, bribes and threats. Public resources such as houses owned by the Nairobi Regional government were handed over to opposition MPs to get them to join and vote alongside KANU MPs. A good number of the opposition MPs crossed to KANU without as much as seeking the consent of their party or the people who elected them. With the split in KANU and creation of KPU, it now became clear that the intention of the new independent government was no longer just the concentration of power at the center but the total control of everything in the country. It became clear that Regional Governments had in fact been targeted because they had some of the power that KANU / Kenyatta regime craved.
Even with KANU now in control of both houses, a de facto one party state and completely pulverized institutions, the Kenyatta government returned to parliament with yet another amendment meant to grind decentralization to finer dust: The Constitution of Kenya (Amendment no. 4) Act no 19 0f 1966. This amendment finally abolished the Senate by amalgamating it with the House of Representatives to form a unicameral National Assembly. KANU could not resist the temptation to stack the deck a little more: While increasing by 41 the number of constituencies (and MPs), the quorum for transacting business in the house was placed at a ridiculous low of 30. Thus for example emergency declarations could be approved or extended for 8 months by a mere 30 MPs (or even fewer if no MP drew the Speaker’s attention to the lack of quorum). The life of the National Assembly due to end in 1968 was extended to 1970 partly as a reward to the Senators for agreeing to disband.
An examination of all the constitutional amendments made in 1966 would show a clear pattern towards a vicious dictatorship. Fundamental civil protections are removed while institutions are deliberately weakened. The weakening of individual rights and protections reflected the political desire to apply force and draconian tactics to deal with growing dissent. The weakening of institutions had the intention of stacking the deck to allow for fraudulent electoral victory for KANU. To this end, detention without trial was made even easier to impose on anybody. The Electoral commission of Kenya (ECK) – meant to be independent and neutral – soon suffered undemocratic intervention. The National Assembly speaker – a KANU operative – was made Chair, assisted by two persons appointed entirely by the president. Later, the president would be granted sole power to appoint all members of the ECK.
The Constitution of Kenya Amendment Act number 16 of 1968 formally completed the process of abolishing regional governments. All references to provincial and district boundaries and alterations were completely removed from the constitution.
It should be noted that parallel with the constitutional acrobatics watering and later completing the extirpation of regional governments, KANU pursued a policy of financial attrition. The regions were starved of cash using delays and bureaucratic trickery. The repressive colonial provincial administration far from being abolished was revamped and used to take over the functions of the regional governments. More officers serving the central government from the provinces were appointed and deployed.
It can therefore be stated that KANU employed trickery and pretence in accepting the terms of the 1963 Independence Constitution. Shortly after winning power, KANU devoted the first year towards sabotaging and eventually destroying regional governments and restrictions on land distribution.
To start with KANU refused to implement the provisions of the constitution by blatantly refusing to transfer executive and legislative power to the regions. The regional governments had been designated with such power in agriculture, education, housing, lands, mineral resources and local government. Just like the current constitution, the 1963 constitution contained a clear schedule / time table for the transfer of functions from central government to the regions. The Kenyatta regime used multiple excuses to avoid or delay the transfer. Perhaps those who have followed the ongoing events can relate to the complaints against the transitional Authority. Some of the arguments cited by the current regime to decline to transfer some functions ominously echo those advanced by KANU in 1960s.
KANU rightly identified the Senate as the possible hub of opposition to the intention to destroy Majimbo and thus took steps to thwart such an eventuality. First it took preemptive steps to prevent any assistance to the regional governments by the Senate by effectively taking over its leadership. An anti-Majimbo speaker – Mwinga Chokwe – became the Speaker of the Senate. Chokwe was also a well known rival and opponent of the KADU leader – Ronald Ngala. Through bribery, inducements, threats and persuasion, KANU began a systematic process of poaching KADU members in and outside parliament, to join KANU. Parliamentarians were not required to seek fresh mandates upon defection and as they were mostly defecting to KANU, this was highly convenient to the regime. It should also be noted that KANU had frustrated KADU to such an extent that a number of KADU members found their continued membership in their own party simply untenable and lacking promise and hence decided to cross over to the sumptuous government side.
While still working out the proposals to amend the constitution and kill Majimbo, KANU abused its power largely through the provincial and central administration – an entity that would be expanded at the expense of democratic institutions. The position of District Officers was empowered and many of these officers appointed and sent to the regions to strengthen the Provincial and Central administration. By expanding the provincial administration, KANU violated a key tenet of democracy: all power, however small or big, shall only be exercised with the express consent of the governed. Here not only was power being grabbed by unelected state appointees but it was in fact being reclaimed from elected regional authorities.
What is notable about the violation is not the lack of protest by the citizens who that same year had gone to elections and approved the new constitution by virtue of participating in the election but the apparent support. It would seem the Kenyatta regime so carefully executed the Majimbo decapitation plan that the very people whose rights were being violated applauded.
Today, we are witness to the public bad-mouthing of Devolution which is slowly leading ordinary Kenyans’ disillusionment with the system. Selective auditing and leaking of the finding out of context and the incitement of the media against counties, is preparing the way for the coup de grace. Before any of the county’s had become operational, there was talk of “devolving corruption”. This coming from a central government that is eaten up by corruption was fat.