We hereby submit as follows:
- First, the Preamble of the Constitution clearly states that the citizens fully recognised ‘the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.” The Preamble goes further to state that in adopting and enacting the Constitution of Kenya 2010, Kenyans were “exercising our sovereign and inalienable right to determine the form of governance of our country, and in so doing, Chapter 8 of the Constitution establishes the Senate. The Senate has a specific role and it is the Senate that is the bulwark for devolution in the Constitution.
- Second, we need to recall that Kenya’s Independence Constitution had provided both for regional governments and for the Senate. However, within less than three years after independence, the Kenyatta government had done away with both the Senate and regional governments. Following this abolition of Senate in 1967 and the subsequent killing of devolution, Kenya has made several attempts at taking development to community level, but most have failed because they lacked constitutional backing and the oversight that should have been provided by Senate and regional governments.
- Third, there is need to know the devastating effect of what Hon. Kioni and others are proposing, since it is important to consider the role of Senate as envisaged in the Constitution. Article 96 (3) of the Constitution identifies the role of Senate as being: i) to determine the allocation of national revenue among counties, as provided for in article 217, and ii) to exercise oversight over national revenue allocated to the county governments. If there is no Senate, who will negotiate with the National Assembly on how much of national revenue should be allocated to counties? Do Kenyans at community level, particularly in the less developed counties want to place the fate of their development in the hands of Members of the National Assembly, who have in the past demonstrated their inability to defend the interests of the people?
- Fourth, and as a consequence of the above, without the Senate, Kenya will have literally killed devolution of power, because the financial fate of counties will rest solely with the National Assembly and the Executive, who have in the past demonstrated that they clearly need to be checked or overseen. Without the Senate, Kenya will be plunged back into the past they aspired to move away frommultiple trial and error decentralisation of public funds intended more for the appeasement of MPs and to provide corruption opportunities for public officials in the Executive.
- Fifth, it is important to note that the Senate has been created to represent the counties and protect their interests, as well as those of the marginalised and special interest groups. Kenyans cannot trust the National Assembly alone to do this because their track record indicates otherwise.
- Finally, beyond the efforts of Hon. Kioni and others, we must recall that the Executive, and in particular the Ministry of Finance has made great attempts to scuttle devolution – through influencing the composition of the Taskforce on the Devolved Government, sponsoring the drafting finance bills that weaken devolution, attempts to retain the provincial administration through draft bill titled Coordination of National Government Functions Bill, 2011, the attempted posting of county commissioners without constitutional or legal backing or even consultation with the Controller of Budget to determine whether or not salaries of such county commissioners should be provided for.
Article 3 (1) of CoK places a responsibility on ever citizen to respect, uphold and defend the Constitution. As the Kenya Human Rights Commission, we reiterate that Kenyans must remain vigilant, expose these attempts and categorically reject any attempts to convolute or weaken devolution. Kenyans must remain alert to the fact that the Constitution is theirs and any attempts by members of the executive or legislature are but a distraction from what should be the diligent implementation of the Constitution.
Stay Alert: The Constitution must be Fully Implemented
Signed this Friday, 16 December 2011