Kenya's Devolution of Government

Full Transcript:

Introduction:

Hello and welcome to the Rules of the Game podcast, where it is my job to discuss democratic institutions.

Kenya’s 2010 constitution brought about substantial changes to the vertical allocation of political power that has been exercised at two tiers of government since then, the central government and the 47 counties. Despite the devolution of Kenya’s government functions, the country is organized as a unitary state, and hence county governments are not as independent as in a truly federal structure. Yet, devolution is giving the subnational governments significant political decision making power by defining the functions that the lower tiers of government can exercise.

With Brenda Ogembo I discuss the many different facets of Kenya’s devolution since 2010. She explains the historic background of the struggle for political power between the center and the various regions and tribes of Kenya. Brenda is convinced that the Kenyan people are generally satisfied with having more political responsibilities and power at the county level, while the implementation is of course challenging.

I also ask her about the effects of the plurality electoral system on the composition of county assemblies, and the role of international development partners that play a central part in guiding citizen participation through citizen assemblies, but also have made themselves hard to replace.

We really do tap into a great variety of topics around devolution in Kenya. I am very happy to welcome her as a guest on the Rules of the Game podcast.

Brenda Ogembo is a Democracy and Governance Expert and works as a Principal Clerk Assistant for the Senate Legislative and Procedural Services at the Parliament of Kenya. She holds a PhD in Political Science and Governance from the University of Birmingham. What makes this conversation so fascinating is that Brenda not only has done extensive research on Kenya’s devolution, but that she has many years of experience working for the parliament in Kenya implementing such processes and thus providing first-hand experiences.

I am your host, Stephan Kyburz, and this is the eighteenth episode of The Rules of the Game podcast. I am a political economist with a PhD in Economics from the University of Bern in Switzerland. And I previously held positions at the London School of Economics and Political Science and the Center for Global Development.

You find a full transcript of the conversation on my website rulesofthegame.blog. If you this podcast, please leave a review on your preferred platform and share it with friends and colleagues.

Now please enjoy this wide ranging conversation with Brenda Ogembo.

Interview 

Stephan Kyburz: Brenda Ogembo Ogambo welcome to the Rules of the Game podcast, I’m very happy to have you on the show.

Brenda Ogembo: Thank you, It’s good to be here. I’m looking forward to a discussion.

Stephan Kyburz: Thank you. So as usual I ask the first question to all my guests. What is your first memory of democracy, or maybe of politics in general?

Brenda Ogembo: That was an interesting question actually when I saw it because I really had to think back to my past memory of democracy and I think actually I realized it was what we call in Kenya the Saba Saba riots which happened, which took place in 1990 and that was on July 7th and so 7 is Saba in Kiswahilian that’s why they’re called Saba Saba riots and at the time it was organized by civil society activists who were campaigning for a return to multi partisan and a change in the constitution in Kenya at the time and the reason why this stands out to me is because it was a first time I think I actually realized about four and a half years old I realized that we lived under a dictatorship and this wasn’t okay. At the time I don’t think you know at the age of four and a half you really thought about the system of government that you live under but I remember that we had to stay home because there was so much violence that took place. And we were not able to go to school, if I’m not mistaken for about a day or two days and I really began to realize that there is something about who governs you know I hear my parents talking and I’d pay more attention to some of the fears they had about, for example, you know threats to people’s lives, people who had been killed or assassinated or I guess suspected assassinations that have never been proven and the grievances that arose from you know, kind of ethnic conflict between communities. So I think that was a time when I really began to realize that there is democracy. There is a difference between types of government and there’s places where people have greater choice and the kind of comments they have, how much they can speak out but I think it was mainly the realization that my parents lived in so much fear. There was so much fear and you, even in school after it happened you know our parents who tell us don’t talk about it, don’t ask questions about you know, political leaders. Don’t talk about so and so. And so we began to really, I think that’s when it really began to hit me that there is something different about the country that I live in because you would hear parents talking about wanting to relocate, leave the country, live in you know more democratic countries. Obviously some of this made more sense. The older god but that really is my past memory of democracy.

Stephan Kyburz: Thank you for sharing that. That’s very impressive and I guess it also made a huge influence on  your life in the sense you know, what career you have chosen. So you’re working for parliament in Kenya and you’ve done a lot of research about local democratic participation at the county level, so what motivated you to do this research and how was it related to your work? 

Brenda Ogembo: Yeah, that’s a good question. I think there are two parts to this question. So there’s a question about why I studied democratic participation, but there’s the question about why there is an interest kind of in democracy more broadly and that as you say is partly history and experience with obviously living under a dictatorship for so many years or an autocratic government if you will for so many years. But then as I got older and you know, had my degree and now we’re adults we could vote seeing so many people in my generation who had kind of grown up in the 90’s when not much of them could not vote, but had lived under this move to move to multipatisan, moved to you know the right to be able to have free and transparent elections really lived through this push towards more transparent and accountable government, begin to ask for a return to more autocratic government because, you know this idea of benevolent dictatorship that, you know Africa cannot work unless you have a benevolent dictatorship, seeing people, you know my generation who their parents have fought so much for the right to be able to vote in multi-party elections choose not to vote because they felt that you know it made no difference, to the outcome of the election, the elections would be rigged and so I think it was our question especially because I mean I think I don’t believe in benevolent dictatorship because it relies on the principle that you can have a benevolent dictator. But so many people felt that way and so the interest in being able to study democracy began there. Why do people feel this way? What is wrong? Why isn’t democracy working in African countries the way that it’s supposed to work? Why are people so frustrated? Of course I know that there’s a big slide away from this, so much populism right now but still, it’s been there for a while that’s strip pull my generation and so one of the things that led me starting democratic participation more specifically for people being able to engage in decision making and government was the was the fact that the Kenyan constitution, when we changed our constitution in 2010 one of the main pillars was to give people a voice to be able to determine the decisions of government and to be right at the center of it, in fact, that really, especially after years of advocating that is one of the most central themes in the current constitution of Kenya where literally government cannot make any decision without the input of people and they must have a say, they must be involved, in any kind of decision. For example, we have participation in every single legislation that goes through you know our local legislatures at the county level and at the national level. But despite this, despite the space that I had fought for for so long, there was so much apathy when it was finally instituted. People would not show up. They were discouraged. They felt like it was performative and having walked in parliament at the time I saw this performance, and I saw the frustration between the elected members and the public. But this thing that everybody had fought for for so long was not working um the way it should and so it was a question of why isn’t it working? Why is this something that people wanted so much and now seems like something that’s being forced on the throats of both elected members and the public and is it having any impact? Was it the right approach? Was the right thing that we should have done? Should we really be doing public participation? Do citizens have the right understanding of them, the capability to actually participate? Is this more about citizens, kind of you know, being apath thattic, not wanting to be engaged but really wanting transparent and open government by not wanting to have to play a role to achieve that? So yeah, the work of Carolyn Hendriks comes to mind when it comes to these kinds of issues about, you know, citizens really do not want to be called upon to have to engage and make decisions or rather that the right decisions are made for them. So that really is where my interest is in understanding the public but because I worked in parliament the state that I walk in committees and I saw this every single day in my work. I had to put bills out for public participation and I was literally on the phone calling people to show up for meetings and then I began to see a gatekeeping process evolving where it was always the same people and so there was nothing different really in what was happening now and you know before the new constitution and so I started to go into my Phd and focus a bit more on trying to understand how people interpret public deliberation or public participation as it’s called in Kenya.

Stephan Kyburz: So we already mentioned the constitution of 2010. Can you walk us through what are the main milestones in terms of devolution of power and political decision making because the constitution really created a new level of government that the counties, there are 47 counties and each county has a government and specific responsibilities and functions which sometimes are shared with the central government. But from your perspective what are really the key elements that were part devolution of political decision-making in Kenya?

Brenda Ogembo: I think it’s important to set slightly further back because the constitution of Kenya created obviously two levels of government but this wasn’t the first time that Kenya had this. In 1960s through the 1963 independence constitution actually had two levels of government. So you had the national government and then you had regional governments, only that there were 7 at the time. And if you look at the regional governments that were there at the time they’re pretty much arranged by tribal communities if you will. You can actually see the tribal arrangements that exist at the time. So this was in 1963, but the two major… So we had two parties at independence and the main party, the leading party was in power at the time but leading up to the independence and the establishment of the constitution, the main party which was Kano was made up of the two biggest communities in Kenya if you will and they were very interested in centralized government. The smaller communities were very afraid that their issues would be absorbed and so they were really advocating for regional government. So obviously the independence constitution in order to… I mean it gave Kano power, it kind of went into the party government and Kadu agreed to partner but that was based on the fact that we would have regional governments and so they would have a bit of say about what was happening in the smaller communities would not get absorbed and they had regional assemblies. But this was never in the interest of the ruling party and the two big communities and they wanted centralized government and so in 1966, because obviously you know the changes to the constitution were already happening, our independent president was a already beginning to show autocratic tendencies and so 1966 they made an amendment the constitution that abolished regional governments and with it they abolished the Senate, which I work in now in, and created a unicameral of parliament and we had centralized governments and even though they did a way with this regional governments and the senate the issues and the reasons for the establishment of regional governments never went away because obviously Kenya has deep, if you know about Kenyan politics, it has very deep ethnic cleavages. It’s a big part of our politics and so that never went away. The smaller communities feeling that they had been subsumed the fact that obviously as we progressed under that constitution, political power became very much about the tribe that was in power and not really two tribes, and so the two tribes that had even formed government at independence fell out and so there was deep marginalization of regions in the country. So the discourse was always on the table about returning to regional government or to devold government where people would be able to make decisions about their livelihoods and you know be able to address issues of marginalization because all decisions were being taken at the center and this never went away, in fact the discussion was only suppressed because of you know, strong and strong autocratic elements.In 2003 obviously Kenya then goes through a period from the 80’s to 90’s where you have multipartism come back. Then you have the general election take place where President Moy, the second president then retires in 2002 and the opposition takes over and back in 2003 you have the introduction of the constituency development fund. For example, similar to the ones that it passed and introduced in India and this was not really about regions per se but it was about independent and individual constituencies getting a percentage of ordinary revenue to be able to determine their own development programs and there was a criteria of the kind of programs that would be done but was really supposed to address deep issues of marginalization that had come through the years of, you know, over 20 years of the Moi government. And it was for building things like classrooms,doing small roads, and building markets. It was really left up to constituencies to determine what they wanted. And so the member of parliament would appoint a board that would then consult the community about what they wanted done and they would then get the revenue from you know the Constituency Development Fund board would be distributed to them and they were free to do this project. They would be oversight but it was their projects. They determined their development projects that they wanted and this was very popular. It was extremely popular and probably… and was very successful, especially for areas that had been extremely marginalized under the Moi government and so when it came time to agitate, when the agitation for a new constitution was Kibaki he had promised a new constitution, when that agitation grew, there was no way that the evolution was not going to be on the table. Everybody wanted funds to fall because they had seen the power of people having say of a decision making or postage(?) making within you know their own locale, within their own county, whatever it was going to be. They wanted decision making power brought down to a lower level especially on service delivery and so that is where I think CDF cemented the fact that if there was going to be any change to the constitution it was definitely going to have to include regional government. But the counties or whatever it is at the time, it was in counties, whatever regional level of garment was created was going to have to have a percentage of the national revenue to be able to determine for books at a local level what it is that they wanted their priorities to be and ensured that there was even development if you will that marginless areas where nobody would ever have to rely on centralized government to deliver services to them. And so then you have the activism around the 2010 constitution. There were many permutations proposed. I think at one point we had 100 and something counties on some of the drafts. At some point we had 8, going back to… they added one, because we had, if i’m not wrong 8 provinces before the new constitution that people who felt that we should have the devolved units operate around those 8 provinces in the end they settled for 47 which is the old district. I believe in the constitution, the independence constitution or the governing districts before independence… I forget but they settled all the old districts and they agreed on 47 counties, which once again were, you know, small enough to allow communities to feel that they were able to make decisions about their own lives. But really, it was about the fact that at this point everybody was so worried about being marginalized that it was ensuring, beyond tribes, smaller tribes that have a say in government, who have their own governments but also balancing almost clan, you know, because we have… even though in Kenya you have ethnic tribes, some of those tribes as they exist are creation of colonial administration requirements and so you have, for example, Luo but there are very many different sub-tribes within that. So the 47 counties sort of respond to that. And it was largely… It was the most acceptable alignment that was created for devolution. Yeah.

Stephan Kyburz: May I quickly ask, like the pressure for the changes in the 2010 constitution that the devolution of power did that more come from from the population or was it more the political elite that decided it was necessary to to devolve power in order to safeguard, you know, the functioning of the country?

Brenda Ogembo: Well, it came from the people. To understand the 2010 constitution, initially it was what you’d now call the current political elite. But at that time they were all in civil society because a lot of the current people in government at the time the push for the 2010 constitution had begun before 2003, when Moy was still in power and all these people were in the opposition they were all either active in civils… and many of them were active in civil society and had been lobbying for this for very many years. Yeah. And so in 2003 when Kibaki was elected one of his promises was that he would deliver a constitution. He would respond to some of the needs that people had, devolution as a promise at the time, and on many things you know, the independent judiciary… What else? So there were a number of things that people really wanted. The new constitution to respond to, protection of political parties and things like that. Now it doesn’t through with Kibaki was elected. Obviously he came into power with the old constitution that created a very strong centralized presidency. He was in power with many… it was a coalition government with many people in power of different ethnic communities and so it was easy for him, at the time, to be able to push aside, if you will, push for a new constitution. So that’s why in 2003, you didn’t see a new constitution. And then you come and we get to the election in 2007 but he’s now fallen out with the main leader who he had signed  the coalition agreement with Raila Odinga and so at this point you have a huge fight, where the demand actually..they actually had a refer referendum at some point where Kibaki tried pushing… He was in 2005 Kibaki tried pushing a cause because he had promised to deliberate, he brought a constitution that was roundly rejected, did not propose not go as far as people wanted in issues of devolution, was still quite centralized and so Kibaki proposed constitution fails and so Raila Odinga then leaves government at this point and pretty much joins the opposition and is preparing for the 2007 election. So you have many political elites at this point then leave the government, leave to join Raila in opposition. Society is still advocating because there’s been a complete failure of this proposed constitution of 2005 and so when you have the election in 2007 Kenya is extremely divided and people at this point felt that Raila is the one who’s going to deliver the 2007 election. But then you have the deep violence that then takes place in 2008 for the election. That election leads to so much ethnic violence, when people feel that Raila has been denied the presidency and the Kibaki presidency has stolen it. And I think that moment was a moment of reflection for all the political elites. I think they realized that they needed to devolve power. They needed to deliver a constitution for the Kenyan people that they could not go to another election with this constitution, and so your question is twofold, I think the people began it but I think the delivery was about consensus among political elites. I don’t think that just the push… it had been there for a long time but I think if Kibaki and Raila had not had the big fallout that they did, it might have been pushed down the line, it would have been continued debate. Should we do this? No. Let’s, you know… constantly draft after draft… but 2007/2008 one of the agreements towards peace was that there would be a constitution. This would not be put off. It would have to be passed, in fact initially, I’d say a 100 days he did… that was 2005, but I think the coalition agreement then set up firm timelines and put in external actors who would, obviously, bring the delivery of the new constitution. It happened because there was a consensus among political elites who knew that they needed a new constitution, to vote to keep the state together. Then we have the 2010 constitution being delivered, you know 2 years or a year and a half after that election.

Stephan Kyburz: Wow, That’s very interesting. These developments and also the struggle or the push of Civil society, of the population putting pressure on the elite really, and they realizing that there is no other way than going forward with a new constitution.  I think we see this pattern often in many countries actually, when new constitutions come into place. 

Intermezzo

Stephan Kyburz: Now going back to my previous question…  The kind of milestones or how did Kenya essentially then devolve power? What were the main elements?

Brenda Ogembo: So Kenya’s constitution is what I think is called by devolution, you know, academics, big bang devolution. So Kenya, you know, passed the 2010 constitution and we’re in the great election of 2013 and we pretty much essentially just devolved everything at once. Obviously there was supposed to be a phased devolution, that was what was supposed to have been done. They set up what was called the transition authority which was supposed… this was set up for the 2013 transition authority was supposed to study sort of all government ministries and determine based on what was in the 2010 constitution lists what functions belong to the national government and regions belong to County governments. National government obviously remains with big functions such as security, education except early childhood education… I’m trying to think of what else… Defense issues. Agriculture is fully devolved. There are few others. If you look at the 2010 constitution it lists about 20 functions but it also lists about 20 functions for the county government such as early childhood education, agriculture, health, up to what we call level 5, so the national government deals with national hospitals whereas county government still deals with all other hospitals below that. Gambling for example, betting holes, those kind of things, sanitation, local community service issues and so the transition authority was then supposed to study and help ministries unbundle these functions and determine what would remain at national government and what would go to County governments and also do a costing of these functions, which has never been done, but was supposed to do a costing of these functions that would then also help determine how much it would cost for counties to deliver the services. Obviously the national government was willing to let go of, you know, as happens everywhere, I did not want to let go of a lot of the subsets it had, for example in health care for example, I mean, had all been taken away and given to county governments, effectively leaving a ministry with only policy. In the national hospital, health is a budget that has a lot of money so obviously there’s resistance from some of those ministries but the agreement was that the transitional authority would enable a phased transaction because if the staff who work in the ministries are also supposed to be transferred to quality governance, when you have the governors come in in 2012 I believe, if I’m not mistaken, 2012/2013 they demand especially on the roads function, they demand that all services be devolved immediately. They wanted every service that had been given to them. Every authority that gave them the constitution, they wanted it. They wanted the money that went to it. They did not want to work on a phased transition. And the reason why this works obviously is because the governors that were then in power at the time were former members of parliament so they were kind of the senior political elite, who then moved to the counties to become governors. They immediately show that this is where the money was going to be. These political elites are also funders of political party that are decision makers in the political party and so when they demanded that the powers be devolved to them it was very hard for the president to say no. They had a lot of push and a lot of persuasion and so Kenya goes into this big bank devolution where all the services are literally transferred and you have a huge mess that occurs, I think in certain aspects are still being resolved. Obviously a lot of development of partner support to be able to resolve that. But in certain sectors you know you have staff staying with a ministry who were supposed to go to the county level who really resisted because they did not want to go to the county government to work there. You have counties that did not want staff from the ministries, who wanted to hire their own personnel because you have people who’d be campaigning for you, who are setting up administrations from scratch, so they want their own people to work in those counties. Then of course there was not, currently I think the biggest concern beyond the political, was financing of services which wasn’t clear because when national government and all functions are centralized, national government has space or has the authority to move funding around. You know as long as it’s in the budget ceiling. It will move funds around the central issue into this but it does, able to fund different sectors and some of which was even funded with development partner support that does budget support, especially for example, like in healthcare and so when they transfer functions to counties, the national government holds on to quite a bit of the funding. Healthcare is one of the biggest examples, where it holds on to funding and also development patterns don’t want to send money down to the counties and so the service goes. But then the funds don’t follow the functions. You have a situation where counties are unable to deliver services at the level that they’re supposed to because there’s insufficient funding for functions. This has remained a huge situation. Due to the fact that costing of functions was never completed and so even the cost of delivering functions… and remember National government was marginalizing many counties now that you divide the money across the counties, It’s still not enough because the basis for sharing revenue. The commissioner revenue and the location that is supposed to guide this process that was established by the 2010 constitution is now trying to rectify this by trying to kind of find out what does it actually cost to deliver function to some of the more rural areas, some of the far-flung areas compared to a city like Narobi. What is actually the actual and correct basis for sharing revenue between the counties? That has continued to be an issue. So once you have this big bang devolution then taking place where funds at [?] functions are sent to counties they find that there’s not enough funding. There’s a big push then obviously for counties to raise their own revenues. Which really was not anticipated. I mean I know people may hold a different position for me. People say that counties should be able to raise funds and the opportunities to be creative and develop revenue raising measures. The constitution doesn’t really give many opportunities to county governments to raise revenue and create some fees like for market licenses.

Stephan Kyburz: One question I had was the constitution didn’t even allow the counties to raise more… I mean they were these specific types of taxes or fees that they can collect but the county governments weren’t allowed to create new ways of raising money? Or maybe that’s what you wanted to explain.

Brenda Ogembo: Yeah that’s what I wanted to explain. So there were… they had very few, it was fees and if I’m not mistaken property taxes. But the property taxes that you can collect primarily in cities, would be Nairobi and Mombasa. Remember that most of Kenya is still… If you will… Have agricultural land. Most of it is freehold. It’s rural land. And people do not pay property taxes on it. They primarily pay in cities, in urban areas. We don’t have many customs in urban areas given Urban areas and Cities Act that was supposed to have been passed. And then the new constitution kind of classifies and agrees what constitutes an urban area. This was also very controversial because a lot of the counties are in rural areas and trying to make people, who are holding family land, pay property taxes. Is extremely complicated. And in other areas is community land held and community trust. So the property table,  if you will, in Kenya is not that large and it’s an extremely political issue. Even in Nairobi, being the… You know, the county government is probably one of the highest, own source revenue collectors. There are still huge issues with collecting or raising property taxes. And this is an even bigger issue in more rural counties, which a larger percentage, a greater percentage of Kenya’s county governments are. And so this is not a main revenue honors for Kenya’s county governments and many of them have tried to introduce fees, building markets, getting treaters to pay fees one are the biggest that became very controversial has ended up being caught and I was going to say that many… the kind of the jurisprudence around devolution issues that have been litigated is also kind of setting up the structure of Kenya’s devolution. So countergarments tried to raise revenues by taxing  companies that were working in their counties, as kind of says, where they would pay to be able to cross or take, you know, rope materials out of their counties, for refinement in Nairobi or in the capital, in another town and obviously manufacturers and companies were able to come together and lobby the senate and eventually this went to court. It was declared illegal. They don’t have the jurisdiction to do it. it has never really taken off. And this is because of the desperation that arises from counties needing money to also… They are underfunded but they also need money to deliver the development needs that people want. So for example, County Government… Kenya’s from highly… You know, it still accounts for a [?] country but you have a lot of poor people who need to rely heavily on government services, if you will. And so when they see… when the local government is brought to them… There’s not very clear… They don’t separate… and this is under the issue that comes up in participation… They don’t separate who is delivering what. They don’t understand that this is the role of the national government in the local government. When they go to their county they want education. You know they want to know why teachers are not showing up. They want to be able to go for a referral hospital and they want the county to pay for them. They want the county to build more hospitals, or employ more teachers or they don’t really separate. The national government has this jurisdiction and we need to lobby them for this. Our county garment has this, you know, specific roles and we need to lobby them. They just know that this is the closest level of government to them that they can influence and so governors have found themselves, and this is a huge problem, where that delivering…one of the easiest subjects being bursaries, education bursaries used for students to go to primary school, to go to high school because they’re associated fees with that. But mainly for university and technical colleges. But this is not a devolved function. So there’s no way that this is in their budget. They’re doing it. But there’s no… they don’t have because County governments are all responsible for early childhood education but if you want to get reelected you’re going to have to deliver bursaries to people. So county governments are spending even the little resources that they have on functions that are not theirs. For example, one of the ones that has suffered the most is training of doctors where counties are supposed to train them, it was a devolved function, but we’re not training. Especially it’s almost impossible for Doctors to get funding to be able to go to school and specialize because it’s not a priority. They want doctors who are working. They don’t want doctors far away because they can barely afford to employ them. And people feel like… even though you want a nurse, you want a school even more and this has become a huge issue I think. People do not realize that devolution is primarily about service delivery. People wanted to be about development. This is slowly changing, especially the work of civil society. The fact that people are seeing governments County governments move away from service delivery. There’s a bigger push to focus on services. But still when you’re coming up to an election governors need to show what they’ve built. Nobody’s going to remember that they’ve been paying salaries and nurses have been coming to work or you know agriculture extension offices are showing up in the counties, people want to see.. they want roads, for example which the national government is not really willing to send a lot of money down for, yeah.

Stephan Kyburz: Yeah, so now I have so many questions because we could go in so many different directions.

Intermezzo

Stephan Kyburz: One question that is of interest to me would definitely be from almost a federal perspective, really this devolved power. Did that lead kind of to a competition between counties for who can better deal with the problem? Or can raise maybe more revenue? Or was it on the other side more increasing pressure on the central government to provide more resources? So were the solutions tried to be found at the county level or was it just increasing pressure? Like at the center.

Brenda Ogembo: That’s a good question because it was an aspirational value that you to have an intercounty competition and the commission of revenue allocation has actually tried to introduce that by creating revenue sharing. Sorry, measure an index for revenue collection. So counties that collect more revenue, obviously it’s called better indexes when the release packages and so they get a reward for that which has also been very controversial because certain counties are always going to collect more revenue and I think they’ve changed that in the current formula. So the idea was that there was going to be this great competition. And remember Kenya is quasi-federal. We don’t operate in the same way that the US government does. They’re not completely independent state, you know, local governments. But what interestingly happened is that no, there was not competition. There are governors who do really well, and that’s really nice for their counties but it hasn’t led to regional counties feeling pressure, or the national government feeling that it should, you know, maybe step up. What has then happened in those counties, the people who have responded to counties that have done well have been development partners who have put in more money. 

Stephan Kyburz: So development…Sorry development partners are, partners of like NGO’s, International development funding or….

Brenda Ogembo: Yes. Yes. Yeah international development agencies. Sorry, we call them partners. So a lot of ideas, even some obviously many many local civil society organizations in Kenya are funded by international development agencies or international organizations overseas. They’re the big ones, you know, USAID, Danida, UK Aid which is now FCDO, so they’re world bank. They have big projects in the counties and even though they do try to spread out activities across all the different counties and they work with them and they have, you know, a collaboration framework, you do find that counties that are doing better, that are moving activities faster become the golden child. It has better results. You can do better reports and so their projects move faster. They get more pilot projects, if you will, because then you can use a time of project to ask for money. So I like to call those the golden children of devolution. And a lot of those… there’s one particular county, and I think anyone listening to this podcast will know, he was very much he was… He walked in civil society before and was a great activist who had worked with development partners and that probably explains. But he has done well obviously. Especially around the issue of public participation, interestingly now, than the Golden child. But that has now led… I don’t think it’s necessarily competition between counties but doing well in your county, I think this facet of governors is hoping people propel them to the Presidency. Only challenge has been that because there’s no Intercounty competition, even if your governor has not done well, they still need to elect somebody from another tribe to become the president. Because at the end of the day there’s still a lot of power left in the central government and people still want the presidency and if your governor is not going ahead trying to find the presidency, or is not that kind of person, there’s another county candidate who is not a governor who is running for president. I would say further down the line this may happen when we have counties that have done extremely well.That everybody can see…and you have… the biggest thing is you have people moving into those counties who have been living there to be able to benefit from the services. We might begin to see that but what we do see now is counties realizing that there are certain services that they cannot deliver on their own. There’s certain economic benefits that they cannot seek on their own. And so we’ve had a bill that has been before the senate several times, to create… what do they call them… regional blocks where, you know, it’s interesting. The regional blocks are structured around the 8 former provinces where counties in the 8 provinces have. So within the 8 provinces you have different counties that were created so those 4 provinces have then come together to create a regional block to try and create an economic blueprint for the region. You know, to try and see what services they can deliver or how they can pull their resources to be able to better do development for the region so that seems to have taken off more. And this sense of this county is doing so well, we’re going to put pressure now, Governor, now holding him more accountable to ensure that you know, we have the same kind of development and also the fact that I think those counties are still too spaced Out. You know the counties… kind a very big county but one county. Another It’s quite fine. It’s very hard to know what’s going on in another county because even they’re reporting for local people is still not that well documented and so they wouldn’t know. You may hear things in the pipeline but you’re not really sure of what’s going on another county so to be able to put that pressure on your governor is not something that has really gained traction. Yeah.

Stephan Kyburz: Okay so one question that I often think about and I don’t really have a clear answer yet but… Did the international or development partners, did they kind of take away from the accountability mechanisms at the county government level? Like is there a way of like, you know… If there were no development partners, let’s put it like this, that the county governments would have to provide or maybe take more responsibility. Would you agree with that or not? Or maybe it’s complicated… I mean it’s a huge issue. Right?

Brenda Ogembo: No… Yeah it is. It is. I think they have taken away from accountability in that it’s hard for local communities to take their own responsibility for ensuring accountability. But at the same time there’s a concern… It’s almost like you’ve gone too far down the track to be able to reverse it and nobody has found a logical way or a sustainable way of creating locally funded community action. That’s probably a better way to put it. And so there are obviously county assemblies that have responsibility to do oversight of our county governments and they’re not county councils. They are actual legislatures. They’re parliaments, if you will, and they make legislation on matters concerning county governments. They, you know, obviously, the budget of the county element and they do oversight on county spending. They vet members of the executive nominated by the local government. And so they do have significant power, if you will. But they also rely and their intentions are they would rely on a very strong local active citizenry at the local level. And obviously this has always been a problem in Kenya, I think it worked and people were advocating for democracy when they’re advocating for a more multi-party system and that was… it was easier the issues around that were easier. When you look at counterarguments, a kind of legislation, for example, you need to pass, the kind of a consequence. The issues are slightly more technical for people. When you want to engage on the county budget, for example, the issues are very very technical. They need to align with what is called the county integrated development plan. What has the governor said as an annual development plan. You need to see if there’s actually things that are good to benefit your county. What’s the long run is this budget balanced? What are projects that have been budgeted for that have not been delivered that are being budgeted for again? And those… and I say this with great respect Kenya still not a country where… People are educated, primary education is quite widespread. But the level of higher education, the ability for people to engage in some of those issues is still quite limited. And so development patterns have been active in supporting community based organizations, local development organizations to be able to support, if you will, create sort of facilitators, create champions on badges for… to train the local community, get the community to come together and engage. But then you need to realize that as they do this the community becomes relied on somebody else driving the accountability process. There’s somebody who is going to distill the information for them, who is probably being paid by somebody in Nairobi who’s given the fans frame to book spent time analyzing this information and is able to hire consultants to be able to break down the budget and Writer Citizens budget, if you will, for citizens in a way that they’ll understand, is able to pay people sometimes in certain cases. Not everybody to attend these meetings. Even if they don’t pay them they provide lunch, they provide teas they provide transport. You know it’s a whole system. And when they provide lunch and teas it makes it worth well for somebody to spend their day there rather than looking for something to earn money. Or they don’t have to spend time reading the budget because it’s going to be distilled for them. Or they’re going to be told what to go and say when they go before the budget committee in the county assembly. So when you pull out, and this is once a metric I talk about in my thesis, a concern is development actors have now almost written themselves into a fixed job because if you leave, how are these local communities going to fund these activities. You work on the fact that you’re going to create strong local development organizations. But you’re going to create them on the premise that they’re not funding themselves from the beginning, you’re funding them and then you want to pull out and you want them to fund themselves. Can it work? It’s questionable because the pulling out of development patterns in different sectors even at the national level issues of governance, the slowdown in funding has led to a very weakened civil society in Kenya. Our society, of course, many people did go into government but still, there’s the civil society has become very weak at the national level with a huge focus now being on county governments. So what happens? And you know donors are tired of county governments and there’s another sexy issue on the table. It’s a big problem and I think, if you ask me, it’s about building the culture of accountability and funding accountability must come from people themselves.How do you do this? This is a big question but that is a question that we need to contend with not creating… You’re creating the problem at the national level and at the county level. You need to create a culture of self-funding for accountability that’s driven by Kenyans, that’s driven by big corporates, driven by private sector were really invested in this but allowing them to fund as part of corporate responsibility, social accountability and not to be able to drive their own agenda at the county because, that’s the other thing, we don’t have strong enough laws to… we haven’t had a strong culture of lobbyists but it can easily evolve at the county level because they’re not enough seats and so you need to help them or create legislation as well as build a culture from the beginning where they support this for the sake of developing. Greater transparency and accountability and good governance within the county rather than driving it because you don’t want the county assembly to pass this legislation or because you’re hoping that your company is going to be given this rule when the governor is doing it. Which is still a problem So there are certain things in counties like conditional grants which have been development partners, they fund those.. There’s questions about who does the oversight on that. Is it the national government, is the national parliament or is it county assemblies? But in terms of engagement It’s a difficult question honestly because right now a significant percentage of the engagement that takes place, especially around the budget, which is we have a budget cycle that has different parts to it, a significant number of donors are putting money in that and obviously it’s early years. It’s only been about 12 years, but still the problem for me is that all votes like in all those early years, we need to support it. But the problem is you’re building in a certain culture that you know once you leave there’s no way for local actors to be able to continue the high standards that you have set. And I think it needs to be accompanied by several things which, you know, donors are no longer willing to fund, it needs to be accompanied by training local communities, giving scholarships to people and making sure that they come back into those communities. You know, engaging younger generations to fully understand and appreciate the responsibility for participation rather than just supporting actors, are already on the table preventing gatekeeping. And that that is a huge undertaking, especially in a world where more and more international development partners have to show results to be able to justify their funding and some of those results are 10, 15 years down the line and cannot be seen immediately.

Stephan Kyburz: So there are certain dependencies, right, on development partners, between government and development partners, and also probably almost one needs to think about kind of, I don’t know, a phasing out to move more responsibilities and into the governments. But that’s a whole other discussion I guess. I want to go back to the county governments and the county assemblies, also closer to the research you’ve done. So one aspect that I always liked to talk about is: you know the electoral system in the county assemblies and also the governor, right? So these are single-member districts, single-seat districts and these electoral systems like the plurality system usually favors the bigger party, or the bigger parties in the community. Do you see a kind of huge influence from, or not huge, but an influence from the nationalized parties onto the assemblies? Or are the assemblies controlled usually by one or the other party?

Brenda Ogembo: That’s a really good question. So obviously yes, as you say, the single-member wards, we call them ward districts at the county assembly. And in certain places so you have again, this comes down to ethnic politics in Kenya. So Nairobi County assembly for example is very multicultural because Nairobi is the capital city and there are people from all over Kenya who live here and so it has the biggest county assembly and it has 85 elected members and 38 nominated. I don’t have an exact breakdown of the tribal representation but that will also usually reflect how people of different tribes live in the city. So ward members who come from a certain area where let’s say a constituency, where people live, you’ll have a lot of ward members being of that tribe. And generally members of a similar tribe will be in a similar party. And so Lamu for example, Lamu is different, Lamu is the smallest country assembly has fifteen MCs. It’s very small compared to Nairobi of which you can see has 100 and something MCs. Lamu has a distinction of, you have Kikuys who are from central Kenya who settled in Lamu and then you have indigenous Swahili if you will that live in Lamu. And so they have a divided county assembly, because they have clashes between the Kikuyus and the Swahilis. And they have different political parties because they have different political interests. Mombasa which has I think 50, I’m not sure but let me not give you a number, it has about a range between 40 to 50 something members of its county assembly. It is a multicultural city as well. It’s the second largest city in Kenya. But it is predominantly because of history, it has always sided with Raila Odinga Ray, they always voted for Raila Odinga who is a Luo, they share similar political values. They have had serious issues with land. And so even though people are from different tribes, at one point I think in the last election, I’m not sure in the 2010 election, 2012 election. If I’m not mistaken that the entire assembly was full of one political party, I think in the current assembly that’s going to end. There may be 1 or 2 people who are from a different political party but the majority are – even though they’re from different tribes – you know that if you don’t run for ODM, you are not finding your way into the assembly and so everybody joins that particular political party. But then you have areas like northeastern Kenya who practice a very different sort of politics. They practice negotiated democracy where they make decisions by clans and so the clans agree on who is being elected. And sometimes the clans may agree on a person who is in a different political party but they are electing a person, they’re not electing a political party. They will generally have, they’ll generally all be in one political party. Recently we’re seeing an emergence of – based on devolution – communities creating their own political parties so that they can have their own negotiating power. It’d be interesting to see how that plays out. So they have their own political party for their local elections. But they’re going to be part of a major coalition that only delivers the presidency. And so it plays out Kenyan politics is very much about tribe and so some of these political parties that exist in this election will not exist in the next one, because they not been done away with. So political parties are a vehicle to power and when they’re no longer useful or they no longer have the ability to be able to deliver people to the presidency, that are then done away with, and they create new vehicles that are reflective of how the politics at the national level is being arranged. But I would answer your question and say largely you do see that people from – especially in the rural areas – political parties will tend to be, I mean members from the wards will tend to be from one political party. Especially in very far, like in really rural areas, because all the ward members are from one party to get the support of people voting for the president who came from that region. And so the assembly will be very much from one tribe and from one you know will be ODM or will be Jubilee. But you need to remember that even though they then get there on one political party, at the county level they’re very deep clan issues. We never stop, so we have ethnic politics, then we get into clan issues. So sometimes holding the governor to account, you’ll have that everybody is from one political party but they impeach the governor, or they impeach the speaker. Because they then have inter-clan issues where a certain clan is not happy with the governor or feels that the governor is only awarding tenders to members of his clan. And so just because members of your political party are in power doesn’t mean that a speaker or a governor or a committee chair, that you will get everything that you want. The clan issues play a big part when it comes to local development which has had its own intricacies on developments.

Stephan Kyburz: Very interesting. Thanks for sharing all these thoughts and analysis. 

Intermezzo

Stephan Kyburz: Last but not least, I’d like to talk a bit about your thesis and how at the local level people can participate in political decision making. And I think it’s very important you know, participation of the local population in decision making so my question is, or probably, two questions probably. One is what are the instruments for people to really participate at the county level. And the other one would be what is from your research from your experience also what are the results, and do actually people get a say or is it more a bit pro forma like, has it influenced on county politics?

Brenda Ogembo: To answer your first question, it’s not necessarily instruments. So we have public participation required by law on almost every decision taken by government, whether it is appointing a board or in the case of counties, development of their development plans, on their budgets. And they’re determining spending priorities on committee meetings. So committee meetings are open and anybody can attend. And really the committee can invite public participation on legislation. People are free to attend and if you really had something to say I don’t think any chair would try to stop you both at the national level and the county level. Probably more at the county level because of how that can impact their politics. But participation is required in every single legislation. The problem that we have is that we have never had a structured, we don’t have any public decision law if you will, a public participation legislation. So there’s no definitive structure or minimums that you have to meet in order to be able to say that you conducted public participation if you will, or certain things that are similar across the board and it’s left very much to the discretion of respective institutions. There are guidelines that have been given, for example, by the ministry of devolution on public participation. But there’s been attempts to pass legislation at the national parliament that has failed several times. There’s several bills that are across in both houses that have never gone forward. And so public participation has really turned into a public hearings and this then goes on to your second question of this then is a frustration, because we created public participation but the problem is that actually when you read the provisions of public participation, when you read the kind of trading materials that are out then what is expected. What they’re providing for his deliberation. And what you then have is a public participation is a language that people know and this is again is because of development practitioners. So development practitioners use the language of participation because that is easily understood by everybody, but created an expectation especially among the public of deliberation. They want to have a discussion, they want to see how you know their input is considered by committees, is considered by the executive, they want explanations for why government has deviated from what they’ve said but that is not happening. 1) because of resources. It’s this devolution that’s extremely expensive to do. 2) facilitating this on every single legislation is practically impossible, and 3) the politics of decision making is more complex than simply what’s put on there and so managing expectations at the outset is not done. And people have said together that they can just change anything based on what they want. And politicians feel that we have given you an opportunity to engage but they’re not expecting deliberation and so they’re frustrated either because people are engaging on the wrong issues or because they feel that public expectation is too high for what they can practically engage in. And really without a clear legislation that demands specific things, they don’t have to deliver, they don’t have to do, they’ve given you a chance to say, we listened to you. At least, they’ll always attach a public participation memorandum at the back and who attended and what they said. They are required to say why they didn’t take certain decisions but nobody takes them to court. There’s never been any ruling that really they should deliberate and show how they arrived at a certain decision. even though there is certain legislation would provide for that. The court has ruled that public information, what it has ruled on is that there should be widespread because what they would do is to publish in the newspaper a call for public participation on this legislation. So particularly in county governments, there’s been demands for using other news that people can actually access, because very few people can access a newspaper, to using radios, using town halls, announcing. And so you find that more and more they do that because failing to do participation will definitely lead to going to court and that legislation has been struck out. So that is clear for everybody but whether the participation actually really is doing what it’s supposed to do I believe is about a mismatched expectation to start with. It is very performative but really what donors have sold, because I think even in the global North, but deliberation is expensive. You see the attempts to institutionalize things like citizens as descendance deliberative polls. They’re mainly done by external actors, very few, very rich countries in the Global North have been able to institutionalize, like Belgium and create these permanent citizens’ assemblies. People in the Global South are struggling to just have the opportunity to participate. Governments barely have enough human resources to be able to run the actual business of the legislature, trying to then introduce another layer of deliberation is simply not going to happen. Not in the way the current research on deliberation is proceeding with the kind of gaze and lens on the Global North and Global North institutions and structures. There needs to be a greater push to understanding as well the kind of history of political engagement in the Global South. And like in Kenya, you have to consider our post-colonial history. The fact that engagement with government has a lot of ties with how government were setup, how people view government. How people don’t view government as genuine that they don’t they view government as an extractive space for their communities. And so deliberative participation is more something that you do, but it’s not where you go when you really want something for your community. When you want something you will speak to the governor, you speak to your MP, you organize a local meeting for your ward representative and tell him to come home to the village and meet the local elders where decisions are then made about what he’s going to do in the legislature. And so public participation in a formal sense remains a space for lobbyists, for development partners, for people who have jobs they need to respond to it. And without clear legislation that actually clarifies what it is that we are trying to do and creating legislation that is actually friendly and creating a facilitated mechanism, putting the resources for facilitative mechanism for deliberation that counties spend. And I had somebody say recently at the OECD report, a kind of independent, almost like an Ombudsman, a highly independent office within the legislature that facilitates public participation, provides the facilitators help and engage. Then maybe we’ll begin to feel that people trust government. That it’s not just the legislature, the executive that is doing this. But the external actors that are facilitating to making this information available. Distilling decisions and translating them. But it’s a very complex issue and that’s what my research showed. People don’t want it to go away but the fear is more a regression of democracy. Not that they want more opportunities to participate, they like it just fine how it is. But it’s more because they thought that if it was to be done away with because it’s not efficient, we will return to an era where people don’t have a say in government where we begin to regress in democracy and to transfer power to the national level and devolution will go away. So it gives people an assurance that you can study its effect. It’s mainly just performative maybe, it’s mismatched expectations, different understandings of what’s going on. And the resource constraints are one of the biggest issues that nobody’s addressing. To have effective participation you really do need to put in a lot of money. And in counties and countries where basic services are already a problem, there’s obviously […] corruption. But even if you take into a account corruption, which so that doesn’t exist in the Global North, delivering services when you’re comparing, creating delivering water to people, or hiring nurses or building a hospital, to setting up an entire department to just facilitate public participation and translate documents into different tribes [languages], and taking money out of the budget just for that, it’s likely to become you know a very contentious issue and could actually even cost somebody an election.

Stephan Kyburz: Wow. Super interesting. Thanks a lot for sharing these developments and also my personal opinion actually on this topic is participation is great and it’s important. But I think for me priority is always on representation in the official assemblies. So the better representation in the assemblies, in the actual assemblies, the more power is also shared among different groups in society. So my last question is, if people want to read up on some of these topics, do you have any books or papers that you recommend and of course I can link to your research also in the show notes.

Brenda Ogembo: I may have to send you some of this. I mean I think one of the books that would give people the most comprehensive or rather a snapshot, if you ask me, – because there are many books written on Kenyan politics – but the Oxford (Routledge) Handbook of Kenyan Politics does a good job of combining, what you call it, a quick snapshot of Kenya’s history starting from the advocacy for a new constitution, and then kind of how that has changed different aspects of Kenyan society, in Kenya’s politics. So I really like that for just a beginner reader. And then of course there are numerous other books that detail different parts of Kenya’s history. I think a lot of it currently is still being written. I know there’s a book – I can’t remember the name – but authors such as Peter Kathangu (?) who has published a book on Kenya’s devolution. There is professor Karuthi Kaninga who has written numerous papers on Kenya’s devolution and played a big part in the arbitration that led to the 2010 constitution, especially also around the 2007-08 election violence. So I would definitely talk about those two. And I can send you some to link to the blog if people want more specific books. But I would say for the avid reader the most recent book that I’ve seen that covers a good space, a good chunk of time written by different authors, is definitely the Handbook on Kenyan Politics. And most of the authors there, people like Nic Cheeseman, who has done a lot of work on Kenya’s devolution and governors and oversight and elections. They definitely have a chapter there but also their work is definitely something that somebody wanted to read.

Stephan Kyburz: Cool, I’ll definitely link to those in the show notes. So Brenda, thanks a lot for taking the time to be a guest on the Rules of the Game podcast. It has been fascinating, very interesting, I’ve learned a lot and I think Kenya is definitely a very important and interesting example of how devolution can happen and what are the issues around it. So thanks a lot Brenda.

Brenda Ogembo: Thank you, Stephan! Thank you for inviting me and it was great to talk about Kenya and it’s not all doom. I think Kenyans are very happy with devolution, I must say that, and I think they would still choose this form of government or regional government and decision making over a centralized government. So I think it’s acknowledging that development and change is incremental and it’s one step at a time and we’ve achieved certain things in this generation and the next generation will achieve other things.

Stephan Kyburz: Cool. That’s that’s good to hear. Thanks a lot.

Brenda Ogembo: Thank you very much.