Uhuru Seeking To Derail Devolution

WEDNESDAY, 24 AUGUST 2011 00:06 BY PHEROZE NOWROJEE

Uhuru Kenyatta is preventing the implementation of the most vital part of the Constitution – devolution. He is doing this by withholding the funds for the counties. He says that he is withholding the money because that is one of the conditions laid down by the International Monetary Fund (IMF). Another condition is that the Minister of Finance shall be the sole person deciding on payments to the counties.

How has Kenya agreed to these conditions that give total financial power to one man, and one ethnic group, over all other Kenyans in the 47 counties? The IMF and every Kenyan knows that this is exactly what the new Constitution has prohibited and is guarding against. Is it possible then that it was the Kenyan team itself that asked for these conditions to be imposed, because it would benefit some of them and their ethnic group? Were Kenyans with influence at the IMF, but long out of office in Kenya, made part of the team for such a purpose?

Uhuru is the same person who when faced with personal danger to himself at The Hague complained loudly, “Sovereignty! Kenya alone must decide the trials.” Yet when faced with constitutional danger to Kenya at the IMF he did not say, “Sovereignty! Kenya alone must decide the counties’ money.”

Uhuru says the IMF has decided that the counties will not be able to manage the monies they get. This is for the Constitution and not the IMF to decide. The Constitution prescribes: “county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively.” (Art.175(b)). This is what Uhuru has to comply with. The IMF condition is void. The treaty with the IMF may be law, but by being the law, like any other law, it is subject to Art.2(2), Constitution : if it conflicts with the Constitution, which it does, the treaty is void to that extent. Uhuru does not have the power to change this provision, nor to agree with the IMF to do something that conflicts with the Constitution.

Likewise, the IMF condition that it is the Finance Minister who solely decides on monies to the counties is also contrary to the Constitution. Allocations are matters for the Budget and Parliament, and not for the Minister by himself. Devolution is critical to a de-ethnicized, democratic and economically fair Kenya. But, contrariwise, what Uhuru is doing 1. prevents the new Constitution from taking effect in respect of the counties; 2. attempts to reverse the democratic gains of the new Constitution; 3. prevents democratic local government from taking root; 4. brings back unfair tribal domination by one group over all others; and 5. perpetuates dynastic control of Kenya.

All this violates Art.174, Constitution. This says devolution is to promote democratic and accountable exercise of power. It is to foster national unity by recognizing diversity. It is to give powers of self-governance to the people and to enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them. It is to recognize the right of communities to manage their own affairs and further their development, and to protect and promote the interests and rights of minorities and marginalized communities. It is to promote social and economic development in all the 47 counties and not just some of them, and to provide proximate and easily accessible and accountable services throughout Kenya. It is to ensure equitable sharing of national resources throughout Kenya, (not just in the areas which the President or Minister of Finance favours, nor to deprive any areas which they want to punish for not supporting them, nor to discriminate against any on an ethnic or other basis).

By being able to withhold moneys Uhuru defeats all these constitutional provisions. These were the major purposes of the long struggle for constitutional change. Uhuru is seeking to defeat this long struggle. Once devolution is in place, no President or Finance Minister will ever again be able to have one-man rule in Kenya like Kenyatta and Moi’s rule. Uhuru is seeking to bring back this type of rule.

This move against devolution reveals the true face of Uhuru’s 2012 campaign: it is to roll back the new Constitution and to return to the unchecked power and ethnic politics Jomo enjoyed from 1964 to 1978 and others from 1982 to 2002. Uhuru’s move against devolution is the most dangerous move against the new Constitution. All Kenyans must reject it. Loudly.

The writer is a lawyer.