Assessing Kenya's Cooperative Model of Devolution: A Situation-Specific Analysis

Published date01 December 2018
DOI10.1177/0067205X1804600407
Date01 December 2018
AuthorJames Thuo Gathii,Harrison Mbori Otieno
Subject MatterArticle
/tmp/tmp-18XY9Lo3OZA56P/input ASSESSING KENYA’S COOPERATIVE MODEL OF
DEVOLUTION: A SITUATION-SPECIFIC ANALYSIS
James Thuo Gathii* and Harrison Mbori Otieno**
ABSTRACT
Kenya’s form of quasi-federalism termed devolution was introduced under the
Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47
county governments which are constitutionally independent sub-national units with
direct election of county level leaders. Given the complexity of devolution’s relationship
to national politics, as well as the broad variation in how devolution has unfolded in the
47 counties since 2013, this article argues in favour of a situation-specific assessment of
devolution in Kenya. This analysis departs from the emerging scholarly consensus of
devolution in Kenya represented in two predominant approaches. One approach
contends that devolution in Kenya has simply devolved corruption and patronage from
the national to the county level. Another approach argues that devolution has so far been
relatively successful because it has introduced a new political system at the county level
that has a robust system of checks and balances but that has empowered a new dynamic
in Kenya’s politics at the sub-national level. This article argues the first approach paints
the emerging devolution experience with a broad brush that is not reflected in every
county or even on every issue. This article has more in common with the second view.
However, we argue for a more situation-specific, case by case analysis of devolution to
show variations in how devolution has or has not facilitated the delivery of services and
opportunities that were prior to 2013 likely to be unavailable particularly in the most
economically disadvantaged counties.
I INTRODUCTION
The 2010 Constitution inaugurated a weak form of federalism in which 47 new county
governments have functions and powers separate from the national government. The
counties are constitutionally independent subnational units with direct election of
county level leaders. Unlike in the pre-devolution era, when county-level elites owed
their loyalty to national-level elites on whom they relied for patronage and access to the
resources of the state, in the era of devolution county-level leaders must be responsive
to county-level pressures. This is in part because the 2010 Constitution guarantees that at

*
Wing-Tat Lee Chair in International Law and Professor of Law, Loyola University Chicago
School of Law.
** Assistant Lecturer, Strathmore University Law School, Nairobi, Kenya. The authors would
like to thank Ron Levy and an anonymous reviewer for their comments.

596
Federal Law Review
Volume 46
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least 15% of national revenue every year must be allocated to the counties. 1 This
guaranteed monetary allocation, together with the creation of executive and legislative
elections at the county level, provide a level of insulation from national level politics. In
addition, the fact that county assemblies have the power to impeach county Governors,2
and competitive county level elections, puts pressure on county leaders to be responsive
to highly mobilized county electorates. The 2010 Constitution also created a Senate, as
part of a bi-cameral parliament, to protect county affairs at the national level.3 The
advocacy of the Senate together with county Governors for increased resources from the
national government have played vital roles in defending and expanding the power of
county governments.
The advocacy for county authority and resources has in turn become a driving force
for accountability at two levels: first, between county Governors and county legislatures;
and second, between elected leaders and county electorates. This increased pressure for
accountability between the executive and legislative arms in the counties has decreased
the likelihood of political deadlock in county governance that characterised the first set
of county governments between 2013 and 2017. In the 2017 general elections, voters,
apparently disenchanted with the political deadlocks that characterized county
legislatures and county executives, voted out two thirds of county legislators, half of
Governors and 80% of women representatives elected at the county level to the national
assembly.4 For county level politicians, political deadlocks have therefore also become
undesirable since they slow down access to county resources—both for executing the
politicians’ county functions and powers as well as for rewarding their supporters.
Indeed, since county level officials want to protect their access to county resources, they
often seek to limit the national government’s control over them.5 This in turn has
strengthened the support for devolution.
Given the complexity of devolution’s relationship to national politics, as well as the
broad variation in how devolution has unfolded in the 47 counties since 2013, this article
argues in favour of a situation-specific rather than a broad-ranging assessment of
devolution. This analysis departs from the emerging scholarly consensus of devolution
in Kenya represented in two predominant approaches. One approach contends that
devolution in Kenya has simply devolved corruption and patronage from the national

1
2010 Constitution art 203(2).
2
County Governments Act (Kenya) No 17 of 2012 s 33.
3
2010 Constitution art 93(1).
4
Michael Chege, ‘Kenya’s Electoral Misfire’ (2018) 29 Journal of Democracy 158, 170. A
combination of factors explain why a large number of women representatives were voted
out, including inadequate political support from their political parties, and lack of resources
to challenge poorly conducted political party primaries: National Democratic Institute and
Federation of Women Lawyers, ‘A Gender Analysis of the 2017 Kenya General Elections’
(Report,
February
2018)
Elections%20FINAL%20High%20Res%20for%20Printer%20-
%20NEW%20COVER_small.pdf> 6.
5
See generally Nic Cheeseman, Gabrielle Lynch and Justin Willis, ‘Decentralisation in Kenya:
The Governance of Governors’ (2016) 54 Journal of Modern African Studies 1; Alex Dyzenhaus,
‘Decentralisation: Accountability in Local Government’ in Nic Cheeseman (ed), Institutions
and Democracy in Africa: How the Rules of the Game Shape Political Developments (Cambridge
University Press, 2018) 327.

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Assessing Kenya’s Cooperative Model of Devolution
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to the county level.6 The other approach argues that devolution has so far been relatively
successful because it has introduced a new political system at the county level that has
a robust system of checks and balances.7 This article shows that the first approach makes
a totalising argument that is not reflected in every county or even on every issue—even
in some of the counties with the worst corruption. This article has more in common with
the second view. However, we argue for a more situation-specific, case by case analysis
of devolution to show variations in how devolution has or has not facilitated the delivery
of services and opportunities that were, prior to 2013, likely to be unavailable. A case-
by-case analysis does not imply that no general patterns can be drawn from the newly
emerging devolution experience. Rather, this approach foregrounds thick description as
a starting point and springboard for analysis and for asking further questions. This
approach makes it possible to understand devolution in light of the specificities of the
particular context. Thus, as noted in Part III below, some regions of the country have,
since the establishment of devolution and for the first time, had benefits such as
tarmacked roads and hospitals that conduct caesarean operations. Adopting a situation-
specific analysis helps to refer to the emerging devolution experience in a way that
complements and adds to approaches that look for patterns such as the two approaches
described above.
An example of why this more fine-grained assessment of the merits and demerits of
devolution in Kenya is warranted can also be gleaned from the 2013 general elections.
In those elections, devolved governance played what in retrospect was a one-time role
in reducing the high-stakes winner-take-all nature of Kenya’s first-past-the-post election
system. The 47 counties created a new and important arena of political contestation that
de-emphasized the zero-sum competition over the national Presidency that has
characterized Kenyan elections since the introduction of multi-party politics in 1991.8 In
the 2013 presidential election cycle, county elections gave Kenya’s opposition parties
control over more county governorships in the country than the ruling party. That
included the very highly visible Nairobi county, the seat of the Kenyan government. The
new governing opportunities in the counties gave the opposition the promise that they
could translate victories at the county level into future opportunities of winning power
at the national level.9 However, in the August 2017 elections, the incumbent President’s
party reversed this possibility and won a majority of county Governors’ races. More
importantly, the August 2017 presidential elections saw a return of a highly polarised
election in a two-person horse race
...

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