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Constitution of Kenya Review Commission
By Dr. Peter Wanyande
The purpose of this essay is to discuss the different organizational forms that a government can take and the methods of distributing power between different arms and levels of government. Included in the essay is a discussion of the scope of power that each level or arm of government may have. By scope of governmental power is meant any of the following two things. First it refers to the range of functions over which any one arm or level of government has jurisdiction. Secondly it refers to the amount or extent of power given to or possessed by any one arm or level of government.
The discussion of these issues is not intended to be prescriptive i.e., we do not intend to prescribe the governmental structure or form that Kenya should adopt nor the scope of governmental power to be adopted by Kenya. We chose to refrain from this because such decisions can best be arrived only after wide consultation with different groups and stakeholders in society. It must also be based on a definition and clear understanding and consensus regarding the objectives to be achieved by a particular form or structure of government.
In the Kenyan context the questions to be asked as we engage in the process of designing a constitutional framework for an appropriate governmental structure include the following:
* what are the problems with the current governmental structure?
* What is needed to solve these problems?
* What are the available options or alternatives to the present system of governmental organization that may be considered?
* How realistic and or practical is each of the available options as a solution to the identified problems?
These and many other related questions cannot be adequately answered in this workshop. This is because answering them requires the input of diverse groups in society. It is only in this way that consensus can be built around these critically important issues. Consensus on such issues is necessary for the successful operation of my governmental system that may be adopted. It is only after these questions have been satisfactorily settled that decisions on how to divide and balance power between different u-ms and levels of government can be undertaken.
What we have done in this essay therefore is to try to shed insights into the possible organizational forms that a concrete political order may take and the variety of ways by which power and responsibilities can or may be distributed among the different branches and levels. We have in this regard tried to identify some core principles that may guide the design of an appropriate governmental structure. In terms of the distribution of governmental powers we shall concern ourselves mainly with the distribution of legislative, executive, and judicial powers leaving out the distribution of financial power critical as it is. We have also refrained from a direct discussion of the merits and demerits of any one form or structure of government. We have done this in the understanding that the two issues will be addressed in other presentations.
We, however recognize that the distribution of financial power between different levels of government is of critical importance for the successful operation of any government irrespective of the form or structure it assumes. Finally we wish to note that the discussion in this essay is based on the assumption that the type of government being envisaged is a democratic one.
We wish to say right from the outset that a concrete political order may operate on several levels of community, namely local, regional or national. Governments can thus be run at different levels. This however, does not mean that each level is completely separated from the other(s) since they constantly interact in different ways and for different reasons reflecting the dynamic nature of politics and the political process. The choice of a governmental structure or form is a function of several considerations among them the history of a country, the objectives to b achieved, unique experiences such as war or colonialism. It may also be influenced by ideological factors especially the ideological orientation of the principal political actors at any one given time.
Structure of Government
A political system can take a variety of organizational forms. It can also operate at different levels. For purposes of this presentation we shall confine the discussion to the two most commonly adopted forms of governmental structures, namely the unitary system and the federal system. We wish to add however that these organizational forms represent extremes and that several intermediate organizational forms are possible. This is especially so with regard to the unitary system or structure of government, a detailed discussion to which we turn momentarily. We begin the discussion of the structures of government by providing some clarification of the meaning of a federal system of government.
According to Friedrich (1968), federalism should not be seen only as a static pattern or design, characterized by a particular and precisely fixed division of powers between governmental levels. It is also and perhaps primarily the process of federalizing a political community, that is, to say, the process by which a number of separate political communities enter into arrangements for working out solutions, adopting joint policies, and making joint decisions on joint problems, and, conversely, also the process by which a unitary political community becomes differentiated into federally organized whole... In short we have federalism only if a set of political communities coexist and interact as autonomous entities, united in a common order with an autonomy of its own (Friedrich;1968:7-8).
The above definite cleanly suggests that a unitary government can be transformed into a federal system of structure. But it also suggests that several hitherto independent unitary states may come together to form one federal polity or state.
In a more or less similar fashion Watts (1966) defines a federal government as a form of political association in which two or more states constitute a political unity with a common government but in which these member states retain a measure of internal autonomy. He goes on to elaborate further on the concept by saying that in other cases; federal government has been taken to be equivalent to decentralized government." In this regard he points out that many of the governments of South America which purport to be federal, have in practice combined devolution of power to regional governments with an overriding authority exercised by the central government... Political theorists, students of political institutions, and constitutional lawyers, in attempting to make the term federal more precise, have usually fixed it exclusively on a form of government midway between these two extremes. To distinguish 'federal government' from both 'confederal government' on the one hand, and decentralized unitary government on the other. Watts notes that it has often been defined as a particular form of government in which following the model of the United States constitution of 1787, general and regional governments, neither subordinate to the other, exist within a single country.
By contrast in a unitary system in which if power is devolved, the regional governments would be subordinate to the central government. The fundamental and distinguishing characteristic of federal system is that neither the central nor the regional governments are subordinate to each
other, but are instead co-ordinate (Watts; 1966:10). It is also the case in a federal system that once established the distributed powers could not be restricted to some sub-national units and not to others. More important, a federal structure, once created, can be altered only with the consent of all the constituent units, obtained by procedures laid down in the constitution, as interpreted by a supreme or constitutional court (Burrows: 1980:13).
In short, while in a unitary system the power to amend the constitution is vested in the national or central government acting alone, this is not permitted in a federal structure. Thus according to Burrows (1980) removing the power to amend the constitution from the central government, acting alone, is the most essential feature that distinguishes federalism from devolution which can be undertaken in a unitary system. Thus the common trend in federalism is that the ultimate authority to alter the distribution of power in a federal government resides in all the constituent units.
We wish to add here that under a federal system of government, the various sub-national units that constitute the system can have a local government system. In this case it will be the responsibility of the sub-national units that constitute the federation, to determine the scope of the responsibilities of the local government authorities. The parliaments of the sub-national units can in other words alter the distribution of power between it and the state governments in the same way as is done under unitary systems.
At this point it may be helpful to point out that while in a unitary structure or system of government, power and responsibilities are generally concentrated at one point, executive, legislative and judicial powers are usually assigned to different arms or branches of government. Secondly even under unitary organizational forms, a number of options for devolving power short of establishing a federation exist. A brief outline of the options may be useful in shedding insights into the way power may be distributed in such systems. The most familiar one is what obtains in Kenya currently, namely the establishment of local government authorities under the supervision of a minister of the central government. The local authorities would then be given specific functions and powers to carry out these functions. Such powers and responsibilities are normally spelt out in an Act of parliament, which gives the authorities the legal character. As indicted in the previous paragraph, under this arrangement, parliament acting alone can alter the distribution of power as well as the relation between the centre and the local authorities.
The second option for devolving power in a unitary system is what Burrows (1980) calls cautious devolution. It is an arrangement in which a delimited range of matters would be devolved to a particular or group of regions while all other areas of legislation are reserved to the central government. The choice of the regions to which power is to be devolved with be dictated by the peculiar need of the country or the regions. Some regions may for example, demand a large measure of autonomy as a condition for remaining part of the state. Problems in Northern Ireland may require such an arrangement. Secondly under this type of devolution an executive responsible to the regional assembly would exercise executive power. Ultimate authority would still remain at the centre.
The third option is to establish regional assemblies through out the country. The assemblies would then be given greater legislative powers over a wide range of matters and the executives would similarly exercise more power than is the case under the cautious devolution. These regional assemblies would be represented in the second chamber of the national parliament. The national parliament would under his arrangement ensure that the rights conferred on the regional assemblies and executives are not interfered with by the national parliament or by the national government. This creates a highly decentralized constitutional structure. It is however different from a federal system in several respects the major one being that the national parliament retains the right and power to alter the distribution of power.
Burrows summarizes these arrangements thus: "devolution then may in principle take widely different forms, ranging from the grant of very limited legislative powers to assemblies for one or to selected provinces only to a comprehensive decentralization of government to assemblies in all provinces, wielding extensive powers to legislate and to control provincial governments and therefore implying a great reduction in the scope of the central legislature and government (Burrows: 1980; 12). We may add here that even with such forms of decentralization a country could till have local government systems by creating local authorities in each of the provinces or regions. Local government system can thus operate both under a unitary system as well as under a federal structure.
The concept of decentralization and devolution
From the foregoing discussion it becomes clear that one of the key concepts in the organization of government is decentralization. It may therefore be opportune at this point to define this concept a little more concretely. The literature on decentralization tend to agree that the concept refers to the transfer of authority on a geographic basis, whether by deconcentration of administrative authority to field units of the same department or level of government, or by the political devolution of authority to local government units or special statutory bodies (UN 1962). Decentralization thus has two aspects, namely, political and administrative aspects.
Distinguishing devolution from deconcentration, Smith observes that devolution is a practice in which the authority to make decisions in some sphere of pubic policy is delegated by law to sub-national territorial assemblies (e.g. a local authority)... thus devolution entails a transfer of governmental or political authority (with the powers of the constituent units determined by legislation rather than by the constitution.) while deconcentration entails a transfer of administrative authority from the center to h field. It is the delegation of authority to make administrative decisions on behalf of central administration to public servants working in the field and responsible in varying degrees for government policy within their territories (Smith; 1967:1). In short therefore, devolution is a political device for involving lower-level units of government in policy -
decision-making on matters that affect them while decon centration is its administrative counterpart (Oyugi; 200: 4). Devolution can be, as already suggested in the preceding section of this essay, applied to both unitary and federal structures of government. In a federal structure this would take place when for example some powers and responsibilities are transferred from a regional government to a local authority. Consequently it is not necessary to create a federal system or structure of government in order to devolve power to lower level regions or units. This is because power can be devolved in a unitary system. Thus if the objective is to devolve power the objective can be achieved under a unitary structure.
Methods of power sharing
The sharing of power between different levels of government is usually the result of a political process involving negotiations, bargaining and compromise between and among different political actors. It is thus not a technical or purely constitutional issue.
The constitution must capture or at least take into account the issues and concerns expressed during the political process. The actors will include political parties, pressure and interest groups and the citizens as a whole. This was, for example, what happened in the years preceding political independence in Kenya. The political parties, which were the main political actors in the struggle for an acceptable structure of government, engaged in many years of debate as to whether to adopt a federal or unitary system of government and the powers that each level of government would command. They finally agreed on a federal structure with clearly specified powers for each level of government. Tills was subsequently provided for in the independence constitution. The constitution also provided for the establishment of a local government system. The decision on how to share power is thus part of the political process with the constitution being merely an instrument to capture the concern ands to legalize the decision arrived at by the political process. This is not to give the constitution a secondary role in determining how power is to be shared. Indeed the incorporation of these concerns in the constitution is of critical importance precisely because the constitution is an indispensable instrument of governance. Whatever method used it is important to ensure that each level or arm of government has sufficient power to enable it undertake its functions and responsibilities.
Scope of Governmental Powers
As indicated in the introduction to this essay, by scope of governmental power is meant the range of functions over which any one arm or level of government has jurisdiction and or the amount or extent of power given to or possessed by any one arm or level of government. A number of basic or preliminary issues regarding the scope of governmental powers need to be clarified from the outset of this discussion. First is that the scope of power m terms of the amount of power given to any one arm of government or even levels of government is likely to vary from one country to another and from one organizational form to another. Different types of governments are also likely to exhibit differences in terms of the scope of functions and powers assigned to different centers or units. Thus democratic governments are more likely to give more power to different governance units than authoritarian governments. It may also vary from time to time within a particular country. This is well captured by Friedrich in his observation that federal relations re fluctuating relations in the very nature of things (Friedrich: 1968; 7). Secondly the extent to which power is devolved to any level of government cannot be conclusively decided at once. This is because it is likely to change in response to particular experiences gained in the course of operating the system. Adjustments are therefore likely to be made in the course of time. This occurs for example, when one level of government feels that it lacks the amount of power that it needs to do what it wants to do.
The observation by Livingston (1963) about the Australian federation with regard to the powers of the various levels of the system is relevant. He writes: 'one of the biggest problems that have dominated the debate on Australian federation has revolved around the performance of the federal system... In essence two experiences have conditioned the debate, the discovery by the commonwealth - read-centre - that it lacked the power to do what it wanted to do and the discovery by the states-read constituent parts of the federation - of their financial dependence on the commonwealth (Livingston: 1963; 49). The extent of divided powers may thus change from time to time depending on particular experiences and or particular political exigencies.
During periods of war, for example, the central level government may wish to expand the scope of its powers over the sub-national or lower level units of governance. Current attempts by the Bush administration to amass more presidential powers are a good example of what is being suggested here. The starting point is to identify and define the functions and responsibilities of each arm and level of government as a basis for determining how much power is required for the efficient and effective performance of the identified functions.
Another important issue that must be taken into consideration in defining the division and scope of governmental power especially under federal arrangements is whether or not the matter should be defined as precisely as possible or to avoid too rigid a definition and thereby make definition as flexible as possible. Defining the scope and divisions of power precisely has the advantage of reducing the area of uncertainty and possible suspicion while the opposite permits action to be adopted to the needs of changing circumstances and conditions. Generally speaking, the tendency in recent times has been to specify a relatively explicit and detailed division of powers, leaving flexibility to be achieved by a variety of other special devices (Watts; 1966:173). The issue becomes important because in practice the overlapping of central and lower level functions and responsibilities are inevitable. This is especially true with legislative functions and powers in federal systems.
One way to handle this is to make provisions in the constitution specifying the level of government that has the final authority in cases where laws made by the center within its competence and those made by the lower level units are inconsistent. Whatever the method used, it is important to specify it in the constitution. This reduces arbitrariness in the conduct of public affairs and in the relations between different levels of government.
The traditional way of organizing government is to make a distinction between legislative, executive, and judicial functions and powers. This is done under the doctrine or principle of separation of powers and checks and balances. In this arrangement legislative power is assigned to the legislature or parliament, which in democratic societies is made up of elected representatives. Their primary role is to make and amend laws or pass legislation by which the country is governed.
In addition to these purely law making powers and responsibilities; parliaments in well functioning democracies have the responsibility of determining the distribution of public resources. This is done through the requirement that national budget receive parliamentary approval before it can be effected. In some countries, notably the US, parliament plays a much more central role in the budgetary process than is the case in many other countries. The US does this by going beyond mere approval of the budget as presented by the ministry responsible for the technical aspects of the budget. This is because the budget is correctly regarded and treated in the US as a political tool for making important national decisions. The budget is not treated as a purely technical issue requiring only the input of technocrats as is the tendency and practice in many countries.
Over and above these functions and powers, and in line with the principle of checks and balances, parliament has the power of ensuring that the other arms of government do not overstep their boundaries. To put it differently, parliament has the duty to check the possible abuse of power by the other branches of government especially the executive. This is what is commonly referred to as the oversight role of parliament. The ways in which this is done is fairly standard for most democracies. It includes the use of parliamentary committees such as the Public Accounts Committee and the Public Investment Committee. Some parliaments such as the Indian parliament has an implementation committee whose duty is among other things, to ensure that decisions and bills passed by parliament are implemented by the executive. Different counties will decide the type of committees to establish and which one to give priority in addition to the more common ones.
In view of the importance of the legislative power and therefore of parliament, some countries have found it appropriate to introduce constitutional provisions aimed at ensuring that parliament acts as a check on itself without relying on the other arms of government. Establishing two Houses of parliament or a bicameral legislature does this. The idea is to divide legislative responsibilities and power between these two houses in such a way that each House is responsible for specific functions. In addition, certain bills can only be passed after being subjected to debate and approval by both Houses. This is the practice for example in the US where certain bills from the House of Representatives can only pass if they receive the required majority approval by the Senate. A similar situation obtained in Kenya during the brief life of the Majimbo constitution, which provided for two Houses of parliament, namely the Lower and the Upper House. Britain also operates a bicameral legislature. It is thus an arrangement that works under unitary as well as federal systems of government.
The division of power between the two Houses of parliament is important for another reason. It makes it possible to arrange the sessions of parliament in such a way that this arm of government is always in session. This is not common or easy in unicameral systems because under such systems parliament ceases to function when it is in recess or when it is prorogued. This is an undesirable situation precisely because of the importance of legislative and other functions of parliament. One of the dangers of a situation in which parliament ceases to function is that its functions may, be taken over by the executive who may go on to misuse such powers. Details of ensuring that one House is always in session can be worked out. Suffice it to say at this point that it can be achieved by staggering the election timetable of the two Houses so that they are not elected at the same time. Again the US provides a good example of this kind of arrangement.
The other advantage of bicameral legislature for an ethnically divided country such as Kenya is that it can make it possible to have equal representation of ethnic groups in parliament. One of the Houses could be set aside for ethnic representation. Requiring that the upper house be made up of equal number of representatives from each ethnic group can achieve this equal ethnic representation. Representatives to this house may be selected or appointed based on an agreed upon criteria. The bicameral arrangement is an arrangement that I believe is worth exploring for Kenya irrespective of the governmental structure that is finally adopted.
Under the principle of separation of powers and checks and balances the executive branch of government is usually assigned the responsibility and power to implement those laws and policies passed by parliament. Apart from the chief executive, who in democracies is usually elected by popular vote, the rest of the executive is made up of appointed officials. These are usually professionals in different fields. Judicial functions and powers on the other hand are the responsibility of the judiciary. This is the arm of government whose primary duty is to interpret the law made by parliament and to facilitate the enforcement of the law including the application of the rule of law.
Through the courts of law the judiciary can also act as a check on the powers of the other two arms of government. The judiciary can for example declare a particular decision either by parliament of by the executive unconstitutional. The recent case of the Kenya Anti Corruption Authority comes to mind here. It is a good example of the watchdog role of the judiciary over possible misuse of power by the other arms of government.
The distribution of power between the different levels of government in a federal system becomes complex because each level of government must have legislative, executive and judicial powers and functions. As a starting point the divisions of powers into legislative, executive and judicial operates more or less as in a unitary system. They are then replicated at the lower levels as well only that the scope will most likely vary. The functions that the center or federal level will undertake and those that will be the responsibility of the sub- national or lower level units must be defined and spelt out. In other words the scope of their responsibilities must established and then matched by the requisite power for carrying out the responsibilities.
The definition of responsibilities must be a function of negotiations and bargaining between the various levels that constitute or make up the federation. The common practice has, however, been that the centre is responsible for such functions as defense and security against external aggressors. Thus the federal government through the country's chief executive is responsible for functions such as declaration of war. Each lower level unit however is responsible for its internal security. It is also possible for the lower units to share this responsibility with the center. Thus we may have federal police operating side by side with state police. The point being made is that there are certain issues of a security nature that may require the cooperation of security personnel from the two levels of government.
The conduct of foreign affairs has also traditionally been the responsibility for the central or federal government. This is because the country can only espouse one foreign policy. This can only be guaranteed when the conduct of foreign policy is from one source or centre. National budget is also traditionally the responsibility of the central or federal government and so are matters of currency, trade, commerce and industry. Judicial functions are also shared with some mattes falling under federal jurisdiction while others are under state jurisdiction.
Justification for sharing or devolving Power
Having identified the powers of various arms and levels of government and the institutions to which they are distributed, it may be useful to provide some rationale or justification for sharing of power. In short we need to understand why governmental powers should be distributed in the ways discussed above. To start with, power sharing between different levels or arms of government is recommended political as well as for are economic considerations. Administrative reasons have also been used to justify decentralization. The importance of the issue is perhaps best demonstrated by the fact that governmental power is distributed irrespective of the form the government takes. Thus legislative, executive and judicial powers are distributed in unitary as well as in federal and other forms of government. Even authoritarian regimes have found it necessary to share or distribute power at least between the three traditional arms of government.
In both unitary and federal structures of government, power is distributed between the different arms of government for the following reasons. First it is done in order to prevent one arm of government from dominating the other arms of government. Thus it may aim at ensuring that the executive does not dominate the legislature, the judiciary or both. This happens when one arm of government assume too much power in relation to the other arms of government. This may lead to a situation or practice in which the activities of the weaker arms of government may be hindered or undermined by the interference or undue intervention by the more powerful arm or level of government. This may lead to authoritarianism or dictatorial tendencies in the management of public affairs. It can also encourage undesirable governance practices such as nepotism, negative ethnicity, corruption, and the government remaining unresponsive to the governed and political patronage among other vices.
It is thus important to ensure that in a federal structure one level of government is not too powerful compared to the others as this imbalance may create problems of efficiency and loyalty. If, for example, the sub national units are too powerful they may appear more attractive and thus attract qualified people from the center and thus lead to inefficiency in the center. The reverse may also be true. Care must thus be taken to distribute the power as equally as possible. At the very least the power must not exceed what is needed by each arm or level of government to perform its functions and responsibilities efficiently. This argument applies equally to the distribution of power in a unitary system of government. The distribution of power is done also as a way of providing checks on the possible excesses of the other arms of government equal power.
The division of power is also aimed at facilitating efficiency in the conduct or management of governmental affairs. This is done because each arm of government has responsibilities but requires sufficient power to carry out these responsibilities. The powers must not be excessive because this may carry the danger of that power being misused. The need to share and balance power for this as in other cases applies to both unitary and federal systems of government.
The other argument for sharing of power is that it facilitates democracy. The sharing of power and authority between different governmental units and levels of government has been associated with democracy. This is because it is normally assumed that democracy operates best in situations characterized by power sharing as opposed to situations where power ids monopolized by an individual or group. Centralization of power and authority is normally associated with tyranny or authoritarianism. As Livingston says 'the political centralization of power is a threat to the democratic way of life ...and that bureaucracy is best controlled by devolution to local institutions; by greater delegation to the states, and by restoring real parliamentary control' (Livingston:1963; 54).
We wish to observe here however that decentralization does not necessarily lead to good governance. The relationship is much more complex than is normally assumed. This is because whether or not decentralization leads to good governance depends on a number of factors. These factors include the way in which the decentralized power is shared, used and the purposes for which it was introduced in the first place. Available evidence suggests that different counties introduce decentralization for different reasons.
For these and other reasons therefore some scholars and even policy makers prefer decentralization of power to centralization. Such arguments have been used in some cases for the adoption of a federal system or structure of government. These arguments are also used to justify devolution of power to lower level governance units. From a political point of view, the association between decentralization of power and authority and democracy is based on the assumption that once power is decentralized, the people at the sub-national level will not only have easy access to decision points but will also participate in their governance. Whether or not this is true is an empirical question that is likely to vary from country to country depending on many factors.
Watts. R, L. 1966. New Federations Experiments in the Commonwealth. Oxford At The Clarendon Press
Smith. C, Brian. 1967. Field Administration. An Aspect of Decentralization. Routledge and Kegan Paul.
Livingston. W,S. 1963. Federalism in the Commonwealth. Published for the Hansard Society by Cassell. London
Oyugi W.O. 2000. Decentralization for Good Governance and Development. Regional Development Dialogue. Vol. 21.1, Spring 2000
Burrows. B, and Denton G. 1980. Devolution or Federalism? Options For a United Kingdom. M.Federal Trust;