Devolution without Devolution: Centralized Police Service Implications in a Decentralized Government in Kenya.

Author:Mbuba, Jospeter M.
Position::Essay
 
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Introduction

The Constitution adopted in Kenya in 2010 paved the way for a form of decentralization that has been hailed by the World Bank (2015) as "among the most rapid and ambitious devolution processes going on in the world... as the country builds a new set of county governments from scratch." The Constitution divided the country into forty seven county governments, which have jurisdiction over the provision of services in several sectors such as agriculture, health services, cultural activities, transportation, animal control, trade development, disaster management, and local governance, among others (Steeves, 2015, p. 461). This jurisdiction, however, was not extended to the police service, which is still the preserve of the national government.

Operationally, although the concepts of decentralization and devolution are loosely used interchangeably, there are definitional and functional differences that may impact the way in which law enforcement agencies operate in decentralized and devolved governments.

Decentralization has been found to have no concrete definition but to be rather controversial in the literature where its usage has been "restricted to abstraction" (Kessy, 2013, p. 215). Even when the term embodies a somewhat concrete phenomenon, the embodiment is not static but finds incrementally new meanings over time. According to Kanyinga (2016, p. 166), "in the 1970s and '80s the term [decentralization] was used to refer to the transfer of authority, responsibility, and resources from the center to lower levels of government through various forms of deconcentration, delegation, and devolution". Kanyinga further notes that "the concept now encompasses, in addition, the sharing of power, resources, and authority for shaping policies in the society" (p. 166).

This definitional fluidity is particularly true considering the existing variations in the functions of local governments across the country. Kessy (2013, p. 216) views decentralization as "an initiative engineered to empower people by giving them an opportunity to decide on matters of significance to their lives". The primary emphasis in decentralization, especially administrative decentralization as opposed to political decentralization, is in the transfer of some government functions from the national government to lower level units of the same government for implementation purposes.

Devolution has a deeper, broader, and legally guaranteed and therefore more enduring transfer of the national government's functions to lower-level semi-autonomous government entities. It focuses more on political decentralization, which is usually entrenched in the Constitution so that defined power and authority transferred from the national government are systematically and predictably passed on to constitutionally elected leaders of sub-national units. In the Kenyan experience, the Constitution delineates the powers and authority of the devolved and semi-autonomous county governments in the Fourth Schedule, titled, "Distribution of functions between the national government and the county governments" (Constitution of Kenya, 2010, p. 174).

The Constitution is unequivocal, that policing, law enforcement, and security matters are functions of the national government. To be clear about the centrality of security to the national government, the National Security Council, which manages all security matters, is chaired by the president who also serves as the country's head of state and commander-in-chief of the defense forces. However, there are regional, county and local levels of security administration, but they are manned by officials of the national government. At the county level, county police commanders and county commissioners are in charge of law enforcement and the national security apparatus respectively.

Since county police commanders and county commissioners are not answerable to the governor but to the national government, the subservient position of governors with respect to control of law enforcement and security matters creates tensions in some counties between the elective leadership of counties and the appointive members of the national government security system (Cheeseman et. al, 2016).

As a result of these tensions, Cheeseman et. al. report that "governors complained both that the security forces were not guaranteeing the safety of their people, and that they were abusing their powers; and they demanded some kind of control over security" (ibid, p. 25). Even more profoundly, county governors find it anomalous that even their personal security is determined and arranged by other forces at the county level while they (governors) don county flags on their official cars, which symbolizes executive power, and are addressed with the highest salutation in the country--"Your Excellency". Since the main function of the police is to serve as the law enforcement arm of the government, and since functionally devolved governments with centralized police services are a rare combination, this paper aims to provide a critical assessment of the effects of retaining the police at the national level while most other essential services are devolved and provided by the county governments. The paper also aims to highlight the nature of the lateral relations existing between the national government holders of police power at the county level, on one hand, and the leadership of the semi-autonomous county governments, on the other.

The Onset of Devolution in Kenya

The concept of devolution is not a new phenomenon in Kenya; several attempts have previously been made to decentralize state resources, although the state power always remained with the presidency until the enactment of the 2010 Constitution. Elaborate post-independence decentralization efforts can be traced to as early as 1969, when the government initiated the District Development Grant Program, which was to later transform into Rural Development Fund (Chesire, Mutiso, & Chege, 2015). The objective of the District Development Fund was to "set aside funds in each district to implement specific development projects" (ibid, p. 250). In another major attempt to decentralize state resources, the government unveiled, in 1983, what was touted as the District Focus for Rural Development strategy, which entailed decentralization of development activities to the district level (Sigei, 1987; Kirori, 2015; Auya, Bunei, & Kimeu, 2015; Chesire, Mutiso, & Chege, 2015). Under this strategy, administrative districts were responsible for identifying the needs of their communities and implementing the government plans with resources being sent directly from the national government.

A more comprehensive form of decentralization was launched in 2003 under the banner of the Constituency Development Fund (CDF), which sought to decentralize government resources to constituencies under the supervision of political leaders at the constituency levels (Auya, Bunei, & Kimeu, 2015; Chesire, Mutiso, & Chege, 2015).

The CDF programs as encapsulated in the National Government Constituencies Development Fund Act of 2015 (Laws of Kenya), have, however, been judged to be politically driven initiatives, at least to the extent that they "nurture the integration of diverse communities into a common set of political and social values in support of the existing system" (Baskin, 2010, p. 3).

But as Baskin further notes, "constituency-based initiatives can protect communities from the impersonal administration of inflexible and centralized state organizations that often overlook individual communities in the name of administrative rationality" (ibid., p. 3).

The common denominator in all these initiatives is the transfer of resources and some power to the lower levels of government that are relatively independent of national government, referred to as "democratic decentralization" (Hope (2014, p. 339). Although there was a political will to transfer power to the people to prioritize their own needs, the piecemeal transfer failed to contain the surge for devolution and perhaps even added impetus to the clamor for devolution. Ultimately, the full devolution was availed through the new Constitution enacted in 2010. That full devolution, however, did not include the police service.

The magnitude of power sharing that was decreed by the 2010 Constitution as is currently practiced remains unmatched by any of the previous attempts at decentralization. The Constitution, either directly or through calling on Parliament to create new legislation, provides sufficient structures to run and sustain a devolved government, in addition to creating county governments. Under article six, the Constitution divides the territory of Kenya into counties and decrees that "the governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation." To entrench it even further, the Constitution identifies sharing and devolution of power as one of the "national values and principles of governance" (Constitution of Kenya). Chapter eleven, titled "devolved government", aims among other things "to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the state and in making decisions affecting them" and "to facilitate the decentralization of state organs, their functions, and services, from the capital of Kenya" (ibid).

A critical twin question emerges from the foregoing observations. What led to the concerted outcry for the new law and what kind of Constitution existed prior to the much acclaimed 2010 Constitution? The first post-independence Constitution in Kenya, which was framed in the early 1960s following independence from British colonial rule, allowed for competitive multi-party politics. But the Constitution was replaced in 1969 by a new version that consolidated the plethora of amendments to...

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