Does Kenya Need a ‘Devolution Policy’? [opinion]

“Policy” seems to be the current catchword of the government. It is undoubtedly a good thing for the government to plan carefully what it intends to do, and to share its intentions with us – indeed even better if they ask us what we think about its intentions.

In fact the constitution requires both: it stresses that good governance, transparency and participation of the people are among the national values.

Participation cannot be meaningful if the people do not know what the issues are. The Ministry of Devolution and Planning has been working on a “Devolution Policy”.

This is not about whether we should have a devolved system of government – the people of Kenya have already decided that by adopting the constitution – but about how the national government should carry out its own responsibilities for making devolution a success.

To do them justice, they have invited comments on their draft.

A useful policy paper should explain what the issue or set of issues is, how the government proposes to approach dealing with the situation, including why it has adopted certain approaches, and perhaps why it has rejected others.

It should be clear, and enable us to judge in the future whether the government has actually done what it said it planned to do. The draft Devolution Policy (June 2015 version) relies upon certain trendy forms of analysis, or what you might call “development-speak”, including a SWOT analysis and pillars of development.

You may be fortunate enough to be ignorant of these substitutes for thought. SWOT stands for STRENGTHS, WEAKNESSES, OPPORTUNITIES and THREATS, and is intended to constitute a situation analysis.

In this particular instance, there are lists, but not analysis. And some of the factors mentioned as strengths are identified as weaknesses.

The factors identified are stated in very general terms and it is not clear to the reader what are the particular strengths, weaknesses, opportunities or threats.

More importantly, it is not clear at all from the draft policy which, if any, specific measures to be taken to address the weaknesses and threats that have been identified from the SWOT analysis.

“Pillars” are a favourite metaphor in policy documents – here there is a list of “Pillars of the Devolution Policy”, alternatively described as “Independent Variables” that lead to “Development and Democracy” by way of “intervening variables” or “Objects of Devolution”.

All this makes no sense. The draft policy does not explain how these 11 pillars were arrived at, how they relate to the SWOT analysis, such as it is, nor, indeed how they relate to the nine policy objectives of devolved governance under Article 174 of the constitution, which are also quoted. And, within each of these “pillars”, the specifics (“policy measures”, perhaps the bricks that form the pillars?) are very often equally vague, feel-good statements with little concrete content.

Improving this, promoting that, educating the people about the other, making sure the law is enforced and officers are accountable for their behaviour

Do we need a policy document to tell us this? Perhaps the most remarkable aspect of the draft policy is that much of what it says is not specifically related to devolution at all.

This comment is obviously not true of the misleadingly named “pillar” of “decentralised (devolved) units”, which is really about decentralisation to levels below counties, like sub-counties, townships, wards and villages; nor is it true about the “Intergovernmental relations” pillar.

Several of the “pillars” say absolutely nothing about counties or devolution at all. And when they do, there must often be some doubt about whether the national government has the power to do what it proposes – such as “establish planning units at the national level and also within the counties including at all decentralised units”.

Is this not the job of the counties? As a whole the document is a collection of generalities that could be applied to government as a whole, including building capacity, improving leadership and governance, transforming the public service, improving public procurement, civic education, public participation, public finance management, public communication, equity and inclusion.

All these are good things, falling into the category that Americans would call “motherhood and apple pie”, but not specifically devolution related, nor precise enough to offer any programme or July 04/05 2015 basis for evaluation.

On the evidence of this document, the government would seem to be suffering from a lack of “joined-up thinking”, or from its right hand not knowing what its left hand is doing.

There is hardly any useful reference to ongoing policy formulation processes or existing policy documents in the different areas that the draft seeks to address. Other bits of government are working on public participation.

And several counties have actually passed their own laws about this. When discussing public service transformation, for example, there is absolutely no mention of the Capacity Assessment and Rationalisation of the Public Service (CARPS) that has been ongoing (under the auspices of the same department).

Nor is there any mention of existing work on an Urban Development Policy, when discussing levels of government within the counties.

In this area of public life, in which there is now a great deal of law, there is very limited attempt to relate that existing law to the needs and to the proposed approaches.

Perhaps the explanation lies with the use of consultants to develop the policy, rather than those who are immersed in this field on a day-to-day basis.

This is not to deny there is need for some clear thinking about making sure devolution works.

There are issues about clarity of the roles of government institutions at the national and county levels, remaining challenges in the shift from the old system to devolution, over adequacy of resources, over accountability in the use of resources and exercise of powers.

Some of these issues have come before courts of law, but courts have also made it clear that it is not the role of courts to make policies or policy decisions on behalf of the governments at the national and county level.

And careful thought and planning can often avoid the necessity to go to court. When the constitution says the different governments must work cooperatively, it does not mean only that the counties must be cooperative – this is a two-way process.

Intergovernmental consultation (as opposed to passive participation of one level) is important for purposes of getting a “buy in” from both levels.

The two levels of government should jointly identify key policy areas and agree on a common approach to policy implementation.

But it is not clear that such close consultation and cooperation has taken place in the development of this “policy”.

National government institutions and people, including civil servants and MPs, have sometimes found it hard to come to terms with the reality of devolution. Even Senators, whose function is to protect devolution, have tended to view especially the governors as rivals.

It has not been easy for them to accept that there is a second sphere of government, which is “distinct”, with its own powers and responsibilities, and its own electorate to which it is responsible.

Overcoming this negativity should be a policy objective, though perhaps not appropriately enshrined in a policy document. Our constitution lays out plenty of principles and guidelines. Now it is necessary to translate it into hard, practical action.

The national government needs to identify what, within the limits of the constitution, it must do and what it may do to strengthen, and sometimes to regulate, devolution.

This requires much thought, and careful study of the constitution. And it requires moving beyond platitudes.

This article reflects the work of several members of the Katiba Institute, including Conrad Bosire, Jill Cottrell Ghai and Ben Nyabira.