Friday, June 14, 2013



By P. Anyang' Nyong'o

Although the issue is now before the Supreme Court for constitutional interpretation and determination, a few general questions by the layman can still be asked without intruding into the province of the court. And from the answers given some general remarks will definitely follow to amplify why counties need sufficient resources if they have to change the livelihood of the people at the grassroots for the better.
Obviously any reasonable person will realize that when the National Assembly sent the Division of Revenue Bill to the Senate the expectation was that the Senate would discuss it and provide some input. Which is exactly what happened. After providing the input, which proved to be substantial, the Senate sent back to the Assembly what it had done. The Assembly, in its wisdom or lack of it, now decided it was the rightful authority anyway, and the Senate's input was not worth the paper it was written on. Hence, in its original form, the Bill was sent to the President for assent. The President duly complied.

From a purely layman's point of view, something is wrong somewhere. First, was the act of referring the Bill from the National Assembly to the Senate a mere ritual or was it a simple mistake that the Speaker of the Assembly only realized when the results of the deliberations in the Senate came back to him?
It is difficult to believe that it was a mistake since the Speaker of the Assembly is a seasoned lawyer who, in that chair, must have known what he was doing. He actually composed a letter to his colleague in the Senate telling him simply that he was forwarding the Bill for discussion in the Senate as required by some well known procedure or law.

It is equally difficult to believe that the Bill was forwarded to the Senate as a mere ritual since no law has so far been cited saying such a ritual was necessary and the Senate made the mistake of wasting several days discussing a mere ritual.

What is obvious is that once the Bill arrived on the President's table for assent His Excellency was aware that there was already a controversy between the two houses of Parliament over it. The President proceeded to sign it into law notwithstanding the controversy. The question that laymen and laywomen are currently asking is whether there was wisdom in what the President did. I happen to be on the side of those who think that there was hurry in what he did while wisdom was given a wide berth. Why do I say so?

First, there must be somewhere in the constitution which provides direction as to what needs to be done when there is a conflict between the two houses of Parliament on an issue like the Division of Revenue Bill. Were I the President I would have asked for this guidance from the Constitution.

Second, notwithstanding what the constitution may or may not say, the art of conflict resolution says that it is helpful to listen to all parties in any conflict in order to arrive at a balanced decision. In this case the two speakers, the whips and the leaders from both houses could have been brought together by the President to consult on the issue. Along with this team would have been Mr. Nyachae and Mr. Cheserem: the former to help interpret the law and the latter to help on money matters. I am sure that some sober discussion would have ensued and provided some much more informed decision by the President than the crisis he now finds himself in.

Third, the 48 billion shillings that the Senate recommended to go to the counties were not to be spent in the North Pole. The money was going to help improve the livelihood of ordinary Kenyans. Every Kenyan comes from one county or the other, so the money was indeed for all of us. The constitution actually gives the counties some enormous responsibilities so as to release the national government from micromanaging development at the grassroots. The discussion that needed to have been held by the National Assembly is not whether this money should go to counties or not, but whether counties would use it for the purposes for which it was intended.

In the final analysis what we are fighting over comes as a result of scarcity. We all need to create more wealth at the county level so that we can begin to bake our own cake. The counties of Machakos and Homa Bay have both hit the road running in a positive direction. That is as it should be. We in the Senate are concerned about giving the counties sufficient resources to begin creating wealth from below.

The old model was for the national government to create state owned corporations for purposes of wealth creation. Such corporations have had problems of too much bureaucracy and very little innovation; too much expenses and rather meager results. Since it is people working who create wealth, the money put at the disposal of counties must go towards encouraging people to work in order to create wealth. Improving infrastructure, for example, will lead to more economic activities at the local level.

The money given to the counties must be enough to do the job and not mere tokens. It is not good, as the English saying goes, to be penny wise and pounds foolish. In turn county governments need to have effective structures and plans for productively using all the resources at their disposal. There has been a flurry of activities to build capacity for county governments. The outcome of such capacity building exercises must now be seen in the output of these governments.

Results or outputs are always measured in terms of short, medium and long term. The short term ones are the so called low lying fruits. These can be harvested with very little effort and very little expenses. They can have tremendous impact and create a momentum of their own in terms of positive change. But even low lying fruits cannot be harvested haphazardly; they require some method, procedure and organization. We may be taking too long to harvest low lying fruits in our counties. Work needs to begin and begin earnestly.

Unlike their predecessors that existed in terms of local authorities, county governments no longer have Nairobi to look up to for guidance. They must originate the innovations that will make some difference in resource use. Some synergy between the Senate and the County Assemblies will be necessary to cultivate this innovation.