The 2010 Constitution and Devolution

Background

After independence in 1963, Kenya's Lancaster House constitution was amended many times, concentrating power in the presidency. Calls for reform grew in the 1990s with multi-party politics (Section 2A repealed in 1991). The 2007-2008 post-election violence led to the National Accord and a fresh review process. In a referendum on 4 August 2010, Kenyans voted in favour of the new Constitution, promulgated on 27 August 2010.

Key features

• Sovereignty of the people (Article 1).
• Bill of Rights (Chapter Four): life, equality, privacy, expression, fair trial, education, health, housing, clean environment.
• Separation of powers: Executive, Legislature (National Assembly and Senate), Judiciary.
• Devolution with 47 counties.
• Independent commissions: IEBC, KNCHR, EACC, NCIC, Public Service Commission, Salaries and Remuneration Commission.
• Leadership and integrity (Chapter Six).
• Gender rule: not more than two-thirds of members of elective or appointive bodies from the same gender.
• Supreme Court established.

National values (Article 10)

Patriotism, national unity, sharing of power, rule of law, democracy, participation, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalised, good governance, integrity, transparency, accountability and sustainable development.

Devolution

Devolution transfers power and resources from the national to county governments.

County government structure

• County Executive: Governor, Deputy Governor and County Executive Committee.
• County Assembly: elected Members of County Assembly (MCAs) who make laws and oversee the executive.

Functions of counties: agriculture, county health services, early childhood education and village polytechnics, county roads, trade licensing, water and sanitation, and county planning.

Funding: equitable share (at least 15% of national revenue), conditional grants, and local taxes and fees. The Commission on Revenue Allocation recommends sharing.

Objectives

• Promote democratic and accountable exercise of power.
• Foster national unity.
• Give people power of self-governance.
• Promote social and economic development.
• Ensure equitable sharing of resources.

Achievements

• More hospitals, dispensaries and ambulances in counties such as Makueni and Kisumu.
• Construction of ECDE centres.
• Local people participate in budgeting.
• Marginalised regions like Turkana and Wajir received more development.

Challenges

• Corruption and wastage.
• Delay in release of funds.
• Conflicts between the national and county governments.
• Ethnic politics.
• Unequal capacity among counties.

Worked example

Question: Explain how the Constitution protects a child's right to education. Answer: Article 53 gives every child the right to free and compulsory basic education; Article 43 guarantees education to every person; and the state must provide support to marginalised groups.

Citizenship duties

Citizens should pay taxes, vote, obey laws, protect public property, participate in public forums and report corruption.

Try it

• List five rights in the Bill of Rights you enjoy every day.
• Visit a county assembly website and note two laws it passed.
• Debate: Has devolution improved service delivery in your county?