Killing Devolution One Legislation at a Time: a Case of Limited Decentralization in Kenya

Abstract

This research project examines why Kenya’s system of government remains highly centralised despite the entrenchment of devolution in the Constitution of Kenya, 2010.It argues that although the Constitution of Kenya,2010 envisions a devolved system of government, nevertheless Kenya’s system of government remains highly centralised because the current constitutional design of devolution allows recentralization of political power through legislation. This research project relies on a mixed methodological approach to examine whether all attempts to disperse power from the center have always been designed to retain control by the center. With the help of ‘Kelsenian’ pure theory of law, devolution is described as an order of norms, and critical legal studies theory which propounds that laws benefit those who wield political power during the making of such laws, the research project ascribes two reasons for the retention of central control in the design of devolution in Kenya. The first reason is to maintain the cohesiveness of a nation state that was forcefully forged from previously independent nations(tribes). Secondly, those wielding political power before devolution always influence the design of government to retain political power at the center. Finally, this research project demonstrates that devolution of political power is highly limited. In this regard, it proposes a re-examination of the current design of devolution with an aim of clarifying the intended degree of deconcentration of political power.