The President’s refusal to assent the County Governments Bill, 2011 is a blessing that places Provincial Administration (PA) in the limelight for a critical look at its structure, purpose and what role it has played in Kenya’s development.
The Constitution creates two levels of government, and distributes functions between them. Article 6(3) is emphatic on the need for government at national level to also ensure reasonable access to its services in all parts of the Republic. The question that must be quickly yet carefully answered is how then should National government decentralise its services to County, Constituency and Ward level?
The colonial and post independence governments in Kenya opted for Provincial Administration as their preferred way of decentralising services. The core functions of the PA have been maintenance of order or crime prevention, environmental protection and health. In practice, the PA have also done quasi-judicial and administrative work relating to land as well as conflict resolution, peace building or cohesion.
In determining what role (if any) PA should play in devolution, it is critical to first evaluate how PA has so far performed these functions. On security or crime prevention, one chief and 2-4 Administration Police officers have been the only ‘security’ in vast locations, sometimes supported by another 2 - 4 of the often untrained, unmonitored and often ethnically and politically biased Kenya Police Reservists (KPR). The fact that unregulated alcohol, drug abuse and trafficking; the proliferation of arms and ‘cattle rustling’ are reported as rampant and increasingly sophisticated indicates that the decision to leave this security function to Provincial Administration, even with the support of KPR and Administration Police is ill-advised; something that the new Constitution must not carry into the future.
On environmental protection, Kenya has lost substantial forest cover through illegal logging and recommendations, often by the PA, to de-gazette forests in the name of settling squatters. Media reports on the Mau, Mt. Kenya, Embobut and Karura forests have revealed that this is often an excuse for grabbing of prime land for the benefit of unscrupulous politicians, the Provincial Administration themselves and a few supporters of politicians’ who masquerade as squatters and IDPs, while the real IDPs and squatters are left out of such plans.
On the quasi-judicial function of peace building, cohesion and conflict resolution, the Koffi Anan-led reconciliation team in 2008 heard that misallocation of land is essentially what fuels inter-ethnic conflict. Yet, it is the Provincial administration that has sat on and headed District Land Boards and Tribunals, and made recommendations for degazettement to settle squatters, IDPs and other landless people. So PA must shoulder substantial blame for the incidences of violence that occur in Kenya at every election. On family and petty disputes, the mediation role that chiefs have played has earned the tag ‘kangaroo courts’ because it is often alledged that decisions favour the rich, are un-enforced where they favour the poor and both parties end up making an un-receipted ‘payment’ for the service.
While citizens have since independence elected councillors, the role of these elected representatives in local government at Ward level has been emasculated by the existence of chiefs as a parallel authority, raising questions on what the role of elected representatives to the County Assembly and the county public service will be if chiefs continue to take up the local government function in the Ward. The constitution answers this by assigning most of PA’s former functions to County Governments; a few to different organs of the government at national level. Notably, policy making on agriculture, livestock, fisheries, public health, water and environmental protection, is now a national government function, while the actual implementation is a County Government function; meaning no role for PA.
PA is not among the security organs recognised under Constitution. In fact, by purporting to perform this function, what the PA has done is to prevent the police from decentralising their services. In over 40years of independence, there are still no adequately staffed and equipped police stations at Ward level. Reason: For as long as PA has been performing this function, no matter how poorly, there was no need to allocate funds for adequate staffing, remuneration, professionalization and equipping of the Police to operate at village and Ward level. Crime prevention, security and early warning on potential conflict are now functions of the National Police Service.
On the quasi-judicial functions that PA has been performing, again, the reason why Kenya has not invested in ensuring there is an efficient and accessible system of dispute resolution is because for as long as the PA was playing this role, there was no need for the judiciary to worry about decentralising its services, and how to make itself friendly to the poor and uneducated. Today, the Constitution under article 6(3) and 258 compels the Judiciary to ensure access to justice which means more formal courts; but which are cheaper, less technical and nearer to the people, as well as the introduction of Alternative Dispute Resolution (ADR) mechanisms, that acknowledge that traditional justice systems, which are a form of ADR are what Kenyans have so far relied on. Practically this means that the Police should from now see themselves as a service not a force, be present at ward and village, be able to investigate and have early warning of potential conflicts and liaise with the judiciary to mitigate. The Judiciary must from now employ professionals whose main work will not only be litigation, but also ADR; a complete paradigm shift from what has been happening.
Finally, the PA has also served as some sort of coordination or liaison point between Ministries. However, even on this, there is really no role for PA as each Ministry has a way of conducting its horizontal inter-ministerial relations and decentralising its functions and relations vertically to Ward Level. Allowing PA to play this role has been detrimental to the vertical growth of the public service at the lowest level.
In conclusion, Constitution provides answers to the question on how national government should take its services to the lowest level possible. A good read of it indicates that the way to restructure PA is to re-assign its well trained staff elsewhere.
The author is a Senior Programme Officer, responsible for Economic, Social and Cultural Rights at the Kenya Human Rights Commission (KHRC).