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CRA is tinkering with Constitution

by biasharadigest

By KIBISU KABATESI

The Commission on Revenue Allocation’s (CRA) unintended consequence of its Third Formula for sharing county revenue is that it channels resources to developed regions while revoking support for poorer ones.

The poverty index (14 per cent) that previously favoured vulnerable counties is sacrificed when the population quarter is given more weight (18 per cent), setting the spiral effect in favour of prosperous counties’ health needs (17 per cent), agriculture (10 per cent), urban household (five per cent) and basic share (20 per cent). It’s not clear whether agriculture includes livestock and fisheries.

Variables that would create equity are given lower denominations like poverty (14 per cent), land area (eight per cent) and rural access (four per cent). In the end, the formula allocates 70 per cent of shareable revenue to already well-off counties against 30 per cent for the less fortunate.

This is a throwback to Sessional Paper No.10 of 1965 that put resources only into “railway line” agriculturally productive regions and condemned “marginal” regions for lacking this endowment. The archaic document is repudiated by several articles in the Constitution that shift resources to dire needs and, therefore, renounces institutional marginalisation.

FALACY

Indeed, there is a fallacy that allocation to land factor is about expanse. It should be a factor only as an enabler or not in access to and provision of a service. It’s much more expensive to meet health needs of a few scattered in Turkana than it is for denser those in Kiambu since the former retails expensively, while the latter bulk-trades cheaply.

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The CRA formula runs counter to two key principles in the Constitution. One, it reverses the overall objective of devolution — akin to amending the Constitution through the back door.

Under Part 1 (Objects and Principles of Devolved Government), the objects include key elements in Article 174(a) to “foster national unity by recognising diversity; protect and promote the interests and rights of minorities and marginalised communities; promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; ensure equitable sharing of national and local resources throughout Kenya; and facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya.”

Article 175(b) demands that “county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively.” Counties don’t carry out this constitutional requirement on empty coffers — each according to need and disadvantage. This is the essence of devolution; dispersal of resources to those most in need.

CONSTITUTION

In debunking marginalisation, Chapter 2 (The Republic) of the Constitution, at Article 6(3), says “A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.” There is no prevarication here and were Senate to pass the CRA formula, it would be abrogating and failing to “ensure reasonable access to its services in all parts of the Republic”. The Senate should protect devolution and counties and ensure equity in resource distribution.

Two, in the extensive Chapter 4 (Bill of Rights) are various censures against any action supportive of the CRA formula. The Constitution rallies for equality and freedom from discrimination. The Senate would be acting ultra vires the Constitution if it didn’t respect Article 27(6) edict: “The State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

Then the rider in 27(7) that “Any measure taken under Clause (6) shall adequately provide for any benefits to be on the basis of genuine need.” Does Kisumu County really have more pressing “genuine need” than Mandera? There is the further crushing of access to economic and social rights provided for in Article 43(1).

If we demobilise resources from some counties, it can no longer mean every person has the right to access — in the language of the Constitution — the highest attainable standard of life.

Chapter 11 (Devolved Government) is the clincher: It changed our governance system, putting more weight to dispersal of resources from the centre to the periphery: Not just Nairobi, but analogically from the rich to the poor.

 Most economically indigent are found in poor counties. Indeed, how are they expected to enjoy economic and social rights if the State deliberately sanctions discrimination if Senate whisks away “State protection” by adopting the discriminative CRA formula?

Mr Kabatesi is a communications and governance consultant; [email protected]

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