News_Analysis
Sunday, October 5, 2003
Mbai's fears on the way draft addressed the issue of devolution
Devolution was among the most complex issues discussed during Bomas I.
Dr Odhiambo Mbai, who was killed at his home last month, was in the majority who supported devolution of power in principle.
This was the speech he gave on devolution during the plenary debate in May.
"Mr Chairman, I want to begin by paying glowing tribute to Commissioner Mutakha Kangu for his very beautiful presentation on this Chapter that he made to us yesterday.
But, in the same breath, I want also to say that I am a bit disappointed that the principles and the guidelines that we gathered from Commissioner Kangu have not helped us really to discuss this chapter.
Because of that, I want to restrict myself merely to the principles. I will not go into the Draft at the moment because, when you are involved in a work of this nature, which is almost similar to a study research, then the sources of your material, if they are confused or inconsistent the product you are going to produce shall also be inconsistent and confused.
Mr Chairman, Chapter 10 which is the most important chapter, is ironically, the most poorly drafted in the entire Draft Constitution. This is because the very source of your report that you have used to draft this chapter is equally inconsistent and seriously flawed. First, the issue of the situation of this chapter in the Draft Constitution. Second, the title of this chapter that you have called 'Devolution,' and third, the use of the concept devolution in this chapter and in this report.
Because all these are flawed and therefore, the draft that is out of it is equally flawed. An attempt to even introduce another chapter to replace the original one that you gave us has not helped matters; in fact it has even created more confusion.
Mr Chairman, I will want to say the following: In establishing or reconstituting modern states, the most cardinal principles or ideas that almost all nations have based their nations on are the ideas of Sovereignty and Bill of Rights. The reasons why they have done that is because of the liberal theory which state that all human beings are born equal or created equal and they are endowed by their Creator with certain inalienable rights.
Now, it is the two, � equity in creation and the right they enjoy that entitles them to sovereignty and the Bill of Rights which are those inalienable rights given to them by God.
Because they want to enjoy these rights and they also want to enjoy their ability to govern themselves, they create a government whose purpose is therefore to enable them to enjoy these rights. In fact, Mr Chairman, governments are created so that the citizens can enjoy those rights. But once the Government is created, then the people decide the structure and the system of Government. That is why, Mr Chairman, Chapter 10 should have come immediately after 'Sovereignty, The Republic and the Bill of Rights' because it is only then that we can be in a position to now decide all other things. The title of the chapter is also wrong because it is supposed to be dealing with the structure and systems of government.
From there we can then talk about it, because once we know the structure and systems of government that we want, we can know whether we need a bicameral system, what type of executive system we want, what type of judicial systems we want, how we are going to control and manage our land and resources. We will also know how to protect our environment and distribute our resources and so forth. We must also change the title to actually reflect what it is supposed to be doing, namely, the structure and the system of government. I say that because the use of the concept of the term 'Devolution' in this chapter is most confusing.
The term 'Devolution' as you have correctly defined here simply means the delegation of powers from the Central Government of the National Government to Local or constituent units through an Act of Parliament or legislation.
Now, that is totally different from federalism or federation which on the other hand states that it is the separation of powers between the National Government and constituent units through a constitutional Act. Once you have known that, then you must understand, Mr Chairman, that the cardinal or the principle difference between Devolution and Federalism is that in the case of Devolution, power is delegated through an Act of Parliament, whereas in Federalism is distributed through a Constitutional Act.
What you have done here, Mr Chairman, is to bundle the two concepts together and misuse them so badly to the extent that we do not know what exactly you are trying to do. That is why, Mr Chairman, you have come up with something you are calling a mixture of Federalism and Devolution. What is it and can it work?
Mr Chairman, when you went out as the Commission, the central question you should have asked is that for the last 40 years of our Independence, what are the issues that have threatened the stability of the political community that we crafted 40 years ago? It is from that central question that you would have crafted a Constitution that would have addressed those issues.
I want just to say one last thing and then I sit down because I might not talk again in this conference.
I am fascinated about this issue because one thing that Commissioner Kangu told us when he made the presentation, he gave us a list of several countries that have attempted to distribute powers from State, National Government to the lower levels.
There is no country he gave us that can distribute those powers to over 70 constituent units and expect to govern effectively and distribute resources and at the same time promote industrialization at the local levels and promote the emergence of cities at the local level.
Mr Chairman I want to ask the Delegates to address this issue in a manner that can enable us to create entities. That can promote what we want to achieve."
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