The tyranny of Kenya's MCAs
Instead of helping Kenya's constitutional devolution process as agents of good governance, members of county assemblies (MCAs) are rampantly abusing their power.
It has been a year-and-a-half since the 2013 general elections in Kenya, and in this period, the constitutional devolution project has faced a number of challenges.
Among these, one particular challenge that threatens to cripple devolution completely is the growing and unfettered power of the members of county assemblies (MCAs).
Kenya’s constitutional devolution was a structured response to historical non-inclusive systems of governance by successive post-independent governments. Under Article 174 of Kenya’s 2010 Constitution, devolution was intended to transfer control from the central to local governments, to empower citizens and enhance their participation in the management of their own affairs.
To this end, county governments were established to facilitate decentralisation. Kenya’s 2010 Constitution created the positions of MCAs at the county governance level to replace the old ‘local government councillors’ posts. The MCAs have a three-fold mandate: to represent their wards in the county assembly; oversee the county executive in accordance with the Constitution and the County Government Act (CGA); and to promote accessibility, transparency and participation of the county populations in line with Article 9 of the CGA). The MCAs therefore act as the link – a crucial one in a democracy – where they consult and present public concerns to the county assembly and the county government.
Political intimidation and harassment by MCAs has become common |
Over the past year, however, the MCAs’ power and influence have skyrocketed. Two factors account for this, the first of which is their realisation of their strategic political positioning at the grassroots level. This is ideal for political mobilisation and the advantage generated by the twin referendum initiatives; the county governors’ Pesa Mashinani (money to grassroots) and Okoa Kenya (save Kenya) by the opposition Coalition for Reform and Democracy.
Aware of the strategic political positioning of MCAs, proponents of constitutional referenda have been marshalling MCAs to back their campaigns. At the same time, the government has been eager to marshal the MCAs as a counter measure to scuttle the two referendum initiatives. In classic realpolitik fashion, the MCAs have been making demands in exchange for their support.
The second factor that has led to the MCAs’ increasing influence is the lack of clarity and checks and balances in the Constitution on matters concerning the impeachment of county officials. This has given the MCAs carte blanche to bulldoze their way into the management of the county affairs.
The ambiguous threshold in the Constitution and the CGA has accorded the MCAs considerable power in the impeachment of county governors, county assembly speakers and county executive members. For example, Article 11 of the CGA empowers MCAs to bring impeachment charges against the county assembly speaker, substantiate them on the floor of the assembly, preside over the impeachment proceedings and determine the outcome; making them the accusers, prosecutors and the juror in such matters.
 The MCAs’ position has become a tool for political extortion and blackmail |
Similar scripts play out on the impeachment of county executive members under Article 40 of the CGA, and governors under Article 181 of the Constitution. MCAs have thus been taking advantage of the unclear criteria and threshold for impeachment, which has been to the detriment of impartiality and justice in the counties. Furthermore, political intimidation and harassment by MCAs has become common in the management of public affairs in the counties.
The MCAs’ position has become a tool for political extortion and blackmail, especially when their interests are at stake. To date, the MCAs have initiated impeachment proceedings against seven out of the 47 county governors, some 10 county assembly speakers and several county executives. This strategy has generated tensions at the county level, and many county governors, assembly speakers and executives have opted to give into the MCAs’ demands rather than face their political wrath through impeachment. According to Gordon Ogola, the Migori County speaker, this ‘explains the number of ills happening in some counties and county assemblies.’
The MCAs also act with impunity and disregard for the rule of law. In Makueni County, for instance, the MCAs amended and unilaterally passed the 2014/2015 county budget without referring to the county executive committee member in charge of finance, which is contrary to the Public Finance Management Act, 2012.
| Many have opted to give into the MCAs’ demands rather than face their political wrath |
The squandering of public resources has also become common, as shown by the controller of budgets’ report for the year 2013, which highlighted widespread misuse of public funds by MCAs to the tune of KES 2,4 billion in sitting allowances. It is reported that seven counties exceeded the ceiling set by the Salaries and Remuneration Commission, which stipulates that KES 124 000 as the maximum amount an MCA shall earn in sitting allowances. The report further indicates that over the same period, a total of KES 7,75 billion was spent by MCAs on both foreign and domestic travel, and a further KES 63 billion on purchasing cars.
Foreign trips, in particular, have emerged as the preferred means of earning hefty allowances. Described as ‘development benchmarking missions’, the report shows that nearly all the MCAs from the 47 counties have travelled abroad to countries such as Rwanda, Israel, the Netherlands, Singapore, South Africa and Malaysia between 2013 and 2014.
Such avarice and abuse of office has had negative socio-economic and political effects at the county level. In a country where the World Bank estimates 45% to 46% of the population to be living in poverty, KES 36,3 billion was allocated to development in the county governments’ budgets while, by comparison, personnel emoluments expenditures amounted to KES 77,4 billion in the 2013 fiscal year.
Drastic reform in the constitutional devolution architecture is required to curb the power and influence of MCAs and ensure that they act as agents of good governance who support meaningful public service delivery, as opposed to plundering scarce resources. Similarly, the constitutional and legislative frameworks need to be reviewed to incorporate a higher threshold and a more rigorous quasi-judicial process on impeachment.
Civic education on the mandate of MCAs and devolved government units is urgently required. As it stands, MCAs pose the biggest threat to Kenya’s ‘noble’ constitutional devolution project, and intervention is urgently required to ensure that the popular will of the people – devolution – is not subverted to serve the interests of a few political elites.
Peter Aling'o, Office Head and Senior Researcher, and David W Wagacha, Intern, Governance, Crime and Justice Division, ISS Nairobi
Picture by Jacqueline Cochrane/ISS
