Introduction
The World Bank hails the devolution process in Kenya as one of the most ambitious decentralization efforts in the world. Since 2013, counties have been allocated an increasingly generous portion of the total annual government expenditure, currently standing above the minimum 15 percent threshold. Historically marginalized regions have benefited from the resource allocation to prioritize citizen needs. For instance, Marsabit county built its first tarmac road since independence, thanks to county government resources. (Kipchirchir, 2016) The county government also sunk boreholes and constructed dams and water pans that cut distance traveled by constituents in search of water from 70km to 20km. (Muchui, 2016) One goal of devolution was to establish and guarantee that citizens are fully involved in the governance processes. Positive economic impacts aside, public participation under devolution in Kenya faces some challenges: county governments have failed to carry out adequate civic education; insufficient dissemination of information; inadequate entrenchment of public participation in county laws; and lack of a framework for sharing innovation and best practices.
Background
In August 2010, a 67 percent majority of Kenyans voted to enact a new constitution after a reform process that had lasted five years. (Nation, 2010) The constitution elevated the place of the people, “All sovereign power belongs to the people of Kenya… The people may exercise their sovereign power either directly or through their democratically elected representatives.” (National Council for Law Reporting, 2010) Among the provisions of the new constitution was the establishment of a devolved system of 47 county governments with both executive and legislative functions and a bicameral house (national assembly and senate). (Kimenyi, 2013) The devolved system of government was envisioned as a tool to bring the power closer to the people, expand the political space, and “enhance the participation of people in the exercise of the powers of the State and in making decisions affecting them”. (National Council for Law Reporting, 2010, Article 174(c ) )
In March 2013, Kenyans voted for the first time for 47 governors and their deputies, women representatives to the national assembly, senators and members of county assembly. These new counties, headed by the governor with oversight from members of county assembly (MCAs) would be in charge of some functions such as health care, pre-primary education, and maintenance of local roads. (Kimenyi, 2013) Since then, the counties have seen varying degrees of success in distributing resources, reducing marginalization, enhancing national unity and intensifying public participation. The proceeding will focus on the place of public participation and women in leadership as contemplated in the constitution and in law.
Women in leadership
The Constitution of Kenya 2010 provides for equal rights among citizens of both genders. Article 27 goes further to protect representation of women in leadership “…the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” (National Council for Law Reporting, 2010) This essentially assures the place of women in leadership, a protection from past discrimination. It is for this reason that the election of March 2013 saw Kenyans vote 47 women representatives to the national assembly. However, no single woman was elected as a senator or governor, and only 6% of the more than 1400 elected members of county assembly (MCA) were women. (NGEC, 2014) These legislative bodies, therefore, resorted to nominating women in order to fulfill the two-thirds gender rules.
A 2016 rapid assessment performed by CREAW Kenya, a nonprofit that advocates for women’s rights, revealed that the role women play in leadership is still limited. The assessment was carried out in Nyeri and Meru counties. It showed that the respondents were unaware of the leadership positions that were available to women for contestation. For instance, only one woman in a sample of 90 mentioned that she could run for the presidency. (CREAW Kenya, 2016) Further, the study shows that most respondents indicated being aware that women could participate in MCA and Member of Parliament positions, but fewer than a third indicated that women could contest for positions of governor and senator. (CREAW Kenya, 2016) The major challenges mentioned by women hindering their participation in leadership include family responsibilities, violence and insecurity, lack of confidence in their abilities, lack of awareness of positions available, lack of resources and cultural norms that discourage women from seeking leadership opportunities.
Legal and constitutional framework for public participation
In January 2016, the Ministry of Devolution and Planning in conjunction with the autonomous Council of Governors published guidelines for improving public participation in governance. The document noted that though the constitution provided for public participation in all matters concerning them, there didn’t exist any national guidelines on how to go about it. This left county governments to engage in tokenistic participation which “deprived the public the ability to engage with trust at every stage, to ensure development of sound policies and quality legislation, effective planning and budgeting and efficient service delivery” (Ministry of Devolution and Planning & Council of Governors, 2016). Further, the County Government Act, 2012 requires that the county governments should “ensure that there is public participation, coordinate the participation, and develop capacity of the public to participate”. Further the Urban Areas and Cities Act 2011 sets provisions for urban areas and cities to provide public forums for active citizen participation in the affairs of an urban area or city. Moreover, the Public Finance Management Act of 2012 requires public participation in county public finance matters through the establishment of a County Budget and Economic Forum. (IEA, 2015)
Case study of four counties
A review of public participation by the Institute of Economic Affairs in Makueni, Isiolo, Kisumu and Turkana counties revealed that the county governments fared variously in establishing the legal frameworks, disseminating information, performing civic education and engaging civil society.
County-level legal frameworks
The four counties are at various stages of fostering public participation in the law and engaging substantively with their electorate. According to the 2015 study, the Kisumu County Assembly has not enacted a County Public Participation law as required to provide a legal basis for policy formulation. Further, the bill on information access is still in draft stage. The county publicized the FY 2014/2015 county budget via Ramogi FM, a vernacular radio station, giving the public an opportunity to scrutinize expenditure planning. Turkana county has already enacted a County Public Participation Act which established the governor-led County Budget and Economic Forum to engage the public in financial planning. The county government also publicized the FY 2014/2015 budget via a gazette notice on a national newspaper. Further, public ward meetings are held quarterly where county budgeting and planning is discussed. In Isiolo county, the County Executives and MCAs held public budget hearings for FY 2013/2014 although the forum was unclear on how input from the public informed government agenda. Disagreements between the executive and legislative branches of the county reduced opportunity for deliberation of FY 2014/2015 budget at the community level, and the government failed to pass the appropriation bill by the June 30th deadline. Makueni county has established a policy to award county public the priority in providing goods and services for government contracts. (Institute of Economic Affairs, 2015)
Information dissemination
Strengthening public participation requires an informed public. Makueni County Government has established a County Disclosure and Communications Policy to guide its provision of information to the public. Further, it publishes a quarterly newsletter (ENE: The Makueni People’s Magazine) to provide information on government projects. The government also provides agricultural information via two vernacular radio stations, Musyi FM and Mbaitu FM and Facebook pages. Isiolo county uses community radio stations and its website to disseminate information. The county website, however, is missing crucial information such as budget estimates and finance bills. Turkana County Government established two periodicals, Turkana Mirror and Turkana Times (now defunct), and its website to inform citizens of development activities. Kisumu County Government established a toll free number in conjunction with the Ecumenical Church Organizations which the public can use to call and find out information about development projects. (IEA, 2015)
Civic education
An educated public will be able to participate fully in governance. Makueni County Government trained over 900 community members as public interlocutors in FY 2013/2014. This is in recognition of the importance of a civically engaged public in development. The County also established a Public Participation Office to coordinate efforts across all departments and also set aside resources in FY 2014/2015 to facilitate planning and civic education. Isiolo and Turkana counties have not put in place any civic education mechanism. (IEA, 2015)
Civil Society
The last aspect of public engagement involves the place of civil society. Kisumu county has a number of civil society organisations advocating for various causes. Transform Empowerment for Action Initiative (TEAM) is a grassroot civil society organization that advocates democratic governance, human rights and civic engagement. It also educates citizens on policy issues through dialogue forums, local radio stations and dissemination of education material. Another CSO, DUKOKE advocates for greater involvement in county governance for persons with disabilities. In Turkana county, Friends of Lake Turkana and The Catholic Justice and Peace Commission (CJPC) – Lodwar Diocese are two CSOs that are working to educate the public on matters to do with their rights, environmental protection, greater participation in governance and better natural resource usage. In Isiolo county, the Pastoralist Women for Health and Education (PWHE) conducted social accountability trainings for community representatives, who then conducted social audits for projects and shared the results in an audit forum. The Makueni County Government contracted civil society organizations and professional associations such as Teachers Association Union of Makueni, Makueni Churches and Pastors Associations (MACOPAP) and Transformational Education Initiative (TEI) to conduct civic education and facilitate public participation. (IEA, 2015)
Lessons and Recommendations
The study reveals that the county governments have made a number of attempts to engender public participation in running the counties. Further, counties are at different levels of establishing the enabling environments for an informed and engaged public. Moreover, the role of women in national and county leadership is still insufficient to fulfill the requirements of the constitution. Below are some recommendations to further improve the situation.
Firstly, the succeeding 12th Parliament needs to enact the legislation on two-thirds gender rule as directed by the High Court and required by the Constitution, a move that has failed several times in the current 11th Parliament due to lack of quorum. (Shiundu, 2017) Maendeleo ya Wanawake – CSO in Kenya that advocates for women’s issues – chairperson Phoebe Asiyo called for the national assembly to enact laws to protect women against political violence to ensure a level playing field for political contestation. (Nyaundi, 2016) Further, Kenya is likely to have its first female governor in the coming 2017 election as the two frontrunners in Kirinyaga county are women. This will set a precedent for future elections and encourage more women to put themselves up for other elective and appointive positions. As with other marginalized citizen groups, civil society and county governments need to raise awareness and increase affirmative actions to produce meaningful and substantive women leadership.
Secondly, the government may want to consider establishing a county public participation index that ranks counties on various indicators for involving their constituents in the running of the county affairs. Devolved county government units encourage competition among the counties. It is in the best interest of the county governors to perform well, as some seek to enter the national leadership platform. This index, would among other things, place the onus on every county government to do better than their peers, and thereby improving service delivery to the communities. For instance in Elgeyo Marakwet county, the Center for International Private Enterprise (CIPE), together with the Kerio Center for Community Development and Human Rights (KCCDHR), suggested a program-based budget proposed by the communities as opposed to a line-item one. This alternative way of budgeting, proved very popular with both citizens and community based groups, because it was simpler and more relevant to the communities’ wellbeing. (Gatere, 2015) These best practices could be shared on a common platform to ensure quicker diffusion of ideas and knowledge.
Thirdly, the study revealed that there is an abundance of grassroots CSOs. These engage the government and public to create the forums for greater participation and strengthening of devolution. There has also been a great innovation in the way government and CSOs engage to drive the civic education and participation agenda. A representative of the Ministry of Devolution and Planning called for “closer harmony between civil society groups working to enhance public participation in the counties.” (Musau, 2016) Civil society groups need to work together and share best practices as well as form a larger pool of advocates for specific issues. This will increase the voice on public participation issues and move to encourage greater engagement by the citizenry in governance.
Thirdly, local FM radio has emerged as the most important media of communication for a majority of citizens. This is the media tool with the widest reach to inform and engage the most number of Kenyans. Most counties use it well although a few underutilize this key tool. The Institute for Social Accountability, TISA, suggests that information should be disseminated in a timely and accessible manner. While all counties had websites, the information posted was usually outdated, haphazardly structured, inaccessible and difficult to understand. A study by Konrad-Adenauer-Stiftung (KAS) and the Centre for Enhancing Democracy and Good Governance (CEDGG) in Baringo county showed that print media is inaccessible to a majority of citizens. The report suggested the use of more effective forums for dissemination of information such as churches, mosques, local markets and social media. It stated, “The choice of the mobilization strategy should be informed by the preferences of the target group” (Konrad-Adenauer-Stiftung – Kenya Office, 2014)
Finally, a UNDP report compiled on an evaluation of devolution noted that there was inadequate funding to ensure sufficient citizen mobilization and civic education. (UNDP, 2016) TISA recommends that county governments set aside funds to facilitate civic education, and also engage other stakeholders such as development partners and private sector to mobilize for resources. (Omolo, 2010) Citizens need to own the governance processes as theirs, and therefore, be willing to contribute financial resources for development. To achieve this more effectively, citizens need to form citizen interest groups through which funds can be channeled, deliberations made and issues prioritized. This should take advantage of the already existing social cooperatives that Kenyans already participate in e.g. financial groups (chamas), water action groups etc.. As Grace Maingi of Uraia Trust, a Kenyan CSO that deals with governance issues, notes, citizens must begin engaging in governance, “…If we do not engage, we cannot participate, if we cannot participate we cannot begin to cause a change”. (Maingi, 2014)
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