After a struggle for two decades, in August 2010 Kenyans passed a new constitution which, provides for transfer of authority, administrative responsibility and resources from the central government to 47 subnational governance units—or counties. This constitutional provision under Chapter 11 represents a fundamental shift in the state structure and mode of governance in Kenya from centralized governance to a devolved government.
The overarching expectations of the devolved government are twofold. First, the new administrative system seeks to address the previous systemic exclusion of certain ethnic groups which has resulted in glaring disparities in regional development. Second, by attempting to solve this problem, devolution is also expected in the long run to tackle ethnically motivated violence by lowering the stakes in the competition for presidency, a perennial cause of ethnic violence in Kenya.
Origin of the debate
Kenya is a multi-ethnic society with 43 asymmetrically distributed ethnic groups. Historically, these groups, often through their political elite, have always (mis)appropriated their ethnic identities in the scramble to control state power. Over time, this tendency has not only created the notion of ethnic “otherness” but has also widened the social distance between these ethnic cleavages. Scholarship on constitutional design for divided societies prescribes either power-sharing or group autonomy to address the political disputes and problems created because of these cleavages. It is therefore not surprising that Kenya, like a number of African countries largely characterized by ethnic plurality, have been experimenting with different forms of federated administrative systems.
From the time of negotiations on Kenya’s independence, the question of federalism, has characterized all constitutional debates. The federalism debate took place as majimboism, a Swahili word meaning regions. During the negotiations, which were spearheaded by a political elite drawn from a number of ethnic groups, there emerged an ideological split as the communities perceiving themselves as minority pushed for a federal republic while those perceived to be dominant ethnic groups preferred a unitary state.
Apparently, the word majimbo’s loose translation exaggerated fears of secession, lending impetus to opponents of any form of decentralization. As a result, opposition to the majimbo debate obscured genuine fears of systemic exclusion under a constitution that had an inbuilt bias for centralizing state power in the hands of a powerful presidency in a fragmented society. Also, the 1960s post-independence state-building process in Africa was happening within a broader historical context in which citing the need for order and favourable environment for economic development, centralization of state power was preferred to federalism.
In the end, Kenya’s first constitution provided for regionalism or majimboism with a central government and seven regional administrative units, each with its legislature and executive. But this lasted for only two years (1963-64). The short stint of that system could be explained in part by the unclear constitutional foundation on which it was based and by the strong centralist ideology supported by a section of the political elite then.
Between 1964 and 1990, the country witnessed an exponential degeneration into authoritarianism. A series of constitutional amendments concentrated unchecked executive power at the centre, creating a powerful neopatrimonial presidency. In fact, the country’s second president best put the neo-patrimonial behaviour of the powerful executive in a Swahili phrase, “siasa mbaya, maisha mbaya”—meaning ‘wrong political choices, bad life’.
Authoritarianism and neopatrimonialism deepened disparity in levels of regional development while the central government’s capacity to provide public goods deteriorated. Understandably so, in the circumstances, it was inevitable that the nationwide debate in 2010 on the new constitution was based on how to share power amongst the various ethnic and regional groups.
New constitutional features
It is against the foregoing background that decentralization of power in Kenya under the new constitution promulgated in 2010 should be situated—as an apt and potentially transformative point for the future of governance of Kenya.
The new structure of the Republic of Kenya has a two-tier government, each with its legislative and executive powers. While delineating the counties, the crafters of the new constitution took into account the geographical size of regions, population, ethnic and cultural diversity, public goods provision and cost implications of the new administration system. Still, to a large extent, the federated units are based on ethnic homogeneity, a consideration with mixed implications for peace in Kenya.
A popularly elected president heads the national government’s executive while the executive power in each of the 47 counties is vested in a popularly elected governor. The national government has a bicameral legislature with members of parliament forming the National Assembly and a Senate with 47 elected members, one each from the counties. The county governments, too, have a legislature—county assembly.
The manner in which national government and county governments’ functions are divided grants a significant degree of autonomy to county governments, especially in matters of regional development such as cultural preservation, regional development planning and trade. However, functions deemed sensitive to national stability (e.g. defense, security and foreign policy) are retained at the national level. Similarly, the constitution provides that the two levels of government view each other as distinct but interrelated. These two levels of government must also foster national unity while recognizing diversity. This arrangement allows for regions to grow while also guarding against the possibility of emergence of secessionist agenda.
Fiscally, the devolved government arrangement requires the national government to allocate at least 15% of the national revenue to be shared among the 47 county governments based on a set criterion. Currently, revenue sharing among the counties is based on a basic equal share, according to population size, poverty index, land area and fiscal responsibility. In addition, the new constitution also outlays robust mechanisms of citizen participation within the structures of county governance with a requirement that not more than two-thirds of one gender shall occupy public offices. This provision is applicable at both national and county government levels.
Decentralization is a gradual process and does not necessarily follow a linear path to success. The Kenyan experiment is barely two years old. Yet, two fundamental concerns, one on the relations between the two levels of government and the other on weaknesses of county governments, have emerged.
First, there is a concern that by only setting the minimum allocation to county governments at 15%, a reactionary executive at the national government could stifle devolution. Indeed, the opposition has been campaigning for a national referendum on, among other things, raising the minimum allocation to county governments, accusing the current administration of being anti-devolution. The senate, the legislative body charged with safeguarding the interests of devolution, is also facing an existential problem as the judiciary, the National Assembly, executive and county governors are divided on its role. This situation is a throwback to the challenges faced by federalism at independence and has raised fears over the future of devolution.
Second, a number of worrying trends have emerged as county governments settle down. First, there are fears that county governments may reproduce a new layer of marginalization based on nepotism. Citizen involvement and accountability mechanisms in the running of county governments—critical pillar of this new system—are still weak. A recent study on elected county government leaders and the implications on inequality show that traditional patronage networks have not been broken.
Third, county governments’ focus on revenue allocation from the national government seems to have overshadowed the concomitant need for economic innovation using local resources.
Implications for peace
As mentioned earlier, electoral competition in Kenya has been marred with inter-ethnic violence implicating both the state and political elites from the dominant ethnic groups. Poverty, wealth disparities and real or perceived marginalization have historically compounded the notions of “otherness”. Considering that since the 1990s, intra-state conflicts account for up to 94% of conflicts around the world, reducing the impact of identity politics has increasingly become critical to peacebuilding in Kenya as well.
The devolution of government in Kenya—as laid down in the constitution—grants significant autonomy to the counties in terms of executive power, especially on functions that often cause inter-group conflict such as cultural preservation and local development planning. The regions have also been accorded identical relationship with the centre—an important aspect of federalism which eliminates perceptions of the central government’s bias towards certain regions or groups. The new system provides an opportunity for improved citizen involvement in decision-making and their innovative regional economic productivity. It also gives attention to traditionally marginalized groups.
Therefore, if it is properly implemented, we can make an optimistic projection of the long-term implications of this new system for peace in the country. It is hoped that, gradually, competition to control state power will cease to be a zero-sum game and there will be a net reduction of inequality while would markedly transform public goods and services provision. In so doing, devolution in Kenya is expected to substantially address the causes of inter-ethnic conflicts.
Regionally, stability and peace in Kenya is intricately linked with other countries in the Horn as it shares several trans-border ethnic groups with its neighbouring countries. Reduction in inter-ethnic conflicts and the attendant long-term stability is critical for its close neighbours such as Somalia and South Sudan. In addition, because other countries around the Horn are also currently involved in experiments with federalism, one cannot rule out possible cross-fertilization, exploiting the existing regional linkages.
The foregoing discussion has underscored some areas which pose threats to Kenya’s federalism experiment, which leads to the following three recommendations:
- National government’s commitment
Evidence from federal experiments in other parts of the world shows that a national government’s political will, especially in terms of fiscal decentralization supported by adequate allocation of funds to subnational units, is critical to the success of this experiment. The national government, therefore, must provide political leadership in the ongoing constitutional debates surrounding the relevance of the Senate, and questions on oversight and accountability of counties. It must also genuinely facilitate a constructive debate and agreement on the basis of current and future allocation of funds to county governments including the question of if, when and how the issue of 15% minimum allocation to county governments will be addressed.
- Innovation at county level
Inevitably, the new devolved system comes with considerable pressure to a country’s economy, a cost implication which will further burden the taxpayers. To check this and the possible opposition to devolution, the county governments must be pushed, using available political and economic policy tools, to unleash the economic potential of the regions, previously overlooked under the centralized system. This must be a made to be a primary objective of devolution and not devolution pegged only on appropriation of funds from the national government.
- Citizen involvement
There are already fears that devolution may not only continue hierarchical power structures but could also reproduce new forms of marginalization in the counties. Stories of entrenched corruption in the counties and accusations that nepotism is rife in county governments suggest that the new system is devolving ethnicity—the very problem the new system of government seeks to address. The success of decentralization in Kenya in part will depend on whether citizens and previously marginalized groups feel that they are part and parcel of day-to-day decision-making on local issues. As such, there is a need to enforce compliance with the existing provisions on citizen involvement while also bridging loopholes currently being exploited by county government leaders to perpetuate nepotism.
Fred Otieno holds a MA Pan-African Studies from Syracuse University, New York and is a former Fulbright fellow at Yale University. He currently works at SID as a Program Officer on Kenya’s 2013 Elections Book Project. He is also an adjunct faculty at The Catholic University of Eastern Africa. Can reached at omondi.otieno(at)fulbrightmail.org
 In several studies, Jacqueline Klopp has observed ethnic violence, sometimes state sponsored, as a characteristic of all the multiparty elections in Kenya.
 Lijphart, Arend. 2004. “Constitutional Design for Divided Societies” Journal of Democracy 15(2):96-109
 “Is Majimbo Federalism? Constitutional Debate in a Tribal Shark-Tank” by Kagwanja & Mutunga in 2001
 In 1960s when most African countries were attaining independence, the post WWII economic development theories favored centralized systems of government, the western ideological camp during the Cold War also preferred centralized system of government to ensure stability and check Communist threats.
 Media Development Association & Konrad Adenauer Foundation (2012) History of Constitution Making in Kenya
 Both sources cited in iv and v the above end notes make this observation.
 See the Final Report by the Committee of Experts on Constitutional Review available at kenyalaw.org
 The opposition has criticized the basis on which the national government has pegged revenue allocation to county governments. Rigorous objective examination of this debate however reveal that most such claims emanate from a general misunderstanding of revenue allocation process. See for example Dr. Jason Lakin’s article here http://www.theeastafrican.co.ke/OpEd/comment/Facts-about-funds-to-Kenya-counties/-/434750/2482780/-/otrkyz/-/index.html
 See Cornell, Agnes and D’Archy, Michelle. 2014. Plus ca change? County- level politics in Kenya after devolution. Journal of East African Studies 8(1): 173-191
 IDEA. 1998. Democracy and Deep-Rooted Conflict: Options for Negotiators
 See works on Latin America by scholars like Goldfrank, Cabannes, Gret, Sintomer, Baiocchi etc.