Proffesor Ghai Speaks in support for Federalism

From: Gordon Teti

Prof Yash Pal Ghai, the former Constitution of Kenya Review Commission chairman, thinks Kenya’s independence constitution, which provided for majimbo, was not a bad one, though it had certain loopholes.

Majimbo, Ghai says, never failed. He argues that the founding President Jomo Kenyatta killed it. And that that death gave birth to the numerous problems Kenyans are living with.

Ghai thinks the independence Constitution’s problem was that it departed too radically from the colonial system. The majimbo it created to be implemented immediately was too radical a departure from the colonial system that had run for decades.

But, he says, it promoted democracy, human rights - especially those of the minorities - and devolved powers, with checks and balances.

What killed it, according to Ghai, was "the greed" of Kenyatta and his ruling elite.

"Kenyatta came in wanting to rule like the departing governor he was replacing, and the people around him wanted to make money. He never expected to be accountable to anybody, but colonialists left him a constitution asking him to be accountable. He simply declared that the Constitution was imposed on Kenyans and started dismantling it," Ghai says.

"One of the most difficult constitutions to amend in the world was Kenya’s 1963 Constitution. The Senate could not be abolished unless supported by about nine-tenth of the House," he added.

To beat those requirements, Kenyatta secured the support of senators by upgrading them. He made them members of the more important House of Representatives.

"From then, it has been a case of abuse of power through and through," says Ghai.

Without referring specifically to the case of Kenya, Ghai says he has witnessed a trend where nations are running away from centralised governance to federalism.

The belief that more autonomy for regions and communities would solve problems is taking root across the globe, he noted.

Over time, he says, states that had emerged from colonialism with some stability and centralised authority- like Sri Lanka and Sudan- have come under pressure of ethnic and religious divisions, making federalism a serious option.

"Even the much older and liberal Canada had to confront acute demands from the Francophone and Aboriginal people," Ghai says.

"In all these places, people want decentralised authority. Nigeria began with three federal units. Now it has 33. It is a big issue in Canada. Ethiopia has had to establish a system of ethnic based federations," said Ghai.

Dismantled freedoms and democracy

Kenya, Ghai says, could be in a better position to implement federalism because the ethnic boundaries by and large also coincide with regional and administrative boundaries.

The former Constitution review boss blames all the problems Kenyans came to face later on the dismantling of the 1963 Constitution, which had provisions for devolution and a parliamentary system of government.

The amendments dismantled freedoms and democracy, replaced devolution of power with a highly centralised administration, replaced parliamentary with presidential system which concentrated power on one person and eventually led to one party rule, Ghai says.

ODM leaders say the majimbo they envisage will borrow heavily from the Bomas Draft. It could involve creation of district governments that would be responsible for running local issues.

The leaders say that majimbo, as pushed by ODM, will be an implementation of the devolved government structures as captured in the Bomas Draft.

The Draft had proposed a devolved government as a means of giving self-governance to the people and enhancing people’s participation in their affairs.

Under the Bomas Draft, devolution of power was to enable local communities to manage their own affairs, protect the rights of minorities and enable equitable sharing of national and local resources.

The district was to be the principal level of devolution in the Bomas Draft.

ODM Pentagon member Mr William Ruto, who articulated party policies at the national campaign launch two weeks ago, views majimbo as a way of encouraging consultative, participatory and inclusive leadership.

"It is not just about sharing resources. It leads to increased decision-making at the grassroots. As a progressive means of enhancing democracy, nurturing responsive leadership, anchoring development on locally developed priorities and, more importantly, promoting accountability through direct public audit," says Ruto.

The party, he says, "intends not only to devolve resources and decision-making to the grassroots but also use majimbo "as an instrument of universal empowerment" to tap into the ideas, talents, expertise and effort of ordinary Kenyans."

That, Ruto argues, will exploit the people’s potential for socio-economic development. "So that together, we shall bake a much bigger cake for everyone to share," says Ruto.

ODM, like the other parties, has not released its manifesto. But those familiar with the thinking surrounding that document say majimbo is at the core of the party’s quest for change.

Roles of district governments

Mbita MP Mr Otieno Kajwang’ says ODM is determined to create a district based devolved government.

He says such a system is in operation in Uganda.

"Under this system, each district will have its elected government, complete with a budget and a mini parliament," Kajwang says.

"The District Government will be responsible for local issues like running primary and secondary schools, water, roads, primary healthcare including hospitals up to the district level. Beyond that, the National Government takes over. It will run national institutions like the armed forces, universities, national hospitals and highways, among others. These things are all in the Bomas Draft," he added.

President Kibaki and his allies in the PNU vehemently oppose majimbo.

Local Government minister Mr Musikari Kombo says introduction of majimbo could fuel ethnic animosity.

He sees majimbo as a colonial relic used to rule Africans.

Kombo says PNU is comfortable with the Constituency Development Fund-style of sharing revenue, which has seen 2.5 per cent of Government revenue pushed directly to the grassroots.

But according to Kajwang’, ODM is working on a system of devolution that will make CDF, as it is now "just money for emergencies". The party wants avenues where more funds than CDF will go directly to local communities, who will sit in their district parliaments and decide what to spend it on. "The District Government will operate like the National Government. It will have its own anthem, its own parliament and its own flag. But it will deal only with local issues. That is what Kenya needs. Those opposing it are people who want to concentrate resources at the centre, and then give them out as gifts to those who beg. We are very clear on what we want to do," Kajwang added.

Defenders of majimbo see it as a system of devolving State power horizontally, making it accommodating and inclusive of diverse cultures and identities. It is seen to suit large countries or those with competing racial, ethnic or religious identity problems. Majimbo is widely prescribed for ethnically divided societies in Africa.

Its greatest strength is that it provides an ideal local nursery where skills and leadership are tried out before being taken to the national level. A leader who successfully runs a district government stands a credible chance of getting on the national stage to seek leadership.

The Bomas Draft, which ODM bases its quest for majimbo on, divided Kenya into 13 regions, each bringing together a number of districts.

In the arrangement, the regional Government was to coordinate the implementation of the activities of the districts, especially issues that went beyond the borders of one district.
 
Source: http://kenya.rcbowen.com/talk/viewtopic.php?id=31146